IMPORTANT POINT
Participation of Rajendra Shantaram Todalkar (Accused 8) in the crime is doubtful and his appeal is allowed. Criminal appeal by other three appellants is partly allowed to the extent discussed in the judgment.

Headnote:Indian Penal Code, 1860-Sections 143, 144, 147, 302, 302/149, 302/34, 307, 307/149, 307/34, 324, 324/149, 324/34 and 324/511 -Eight persons charged for offences under-All convicted by trial Court under Sections 302/149 and 324/149 for murdering Gopal Krishna and injuring Sanjay PW 1-In appeal before High Court, accused 4 and 7 died and conviction of rest six was upheld -In appeals to Supreme Court, SLP of accused 1 and 2 not admitted but that of accused 8 (Rajendra) and accused 3, 5 and 6 was admitted-Two incidents of assault-Accused 1 to 5 found murdering Gopal Krishna by forming unlawful assembly-No unlawful assembly to injure Sanjay PW 1-Only accused 6 and 7 assaulted-Participation of accused 8 found doubtful-Accused 8 (Rajendra) acquitted-His appeal allowed-Conviction of accused 3 and 5 u/s 302/149 maintained but u/s 324/149 set aside, conviction of accused 6 altered-Their appeal partly allowed-Order accordingly.
       Held : A closer scrutiny of the testimony of the eyewitnesses reveals that, in fact, there are two incidents of assault which have taken place in quick succession. The nature of the guilt attributable to the accused persons or the criminal liability which can be fastened on them shall have to be determined by reference to the two assaults. There is no material available on record to hold that the deceased Gopikrishna and the injured Sanjay Patil had anything to do with each other or the common object of the alleged unlawful assembly of eight persons was to cause the death of Gopikrishna as also to cause injuries to Sanjay Patil and such common object was shared by all the eight accused persons. A careful reading of the testimony of the eyewitnesses reveals that while accused Nos. 1 to 5 assaulted the deceased Gopikrishna, the other three accused persons have allegedly participated in assault on Sanjay Patil. We are referring to assault by three accused persons, namely, accused Nos. 6 to 8 on Sanjay Patil by way of stating the prosecution case because as we will discuss shortly hereinafter, we have grave doubts if Rajendra Todankar the accused No. 8. had really participated in the assault and, therefore, whether in the facts and circumstances of the case he deserves to be allowed benefit of doubt. (Para 14)
       Held (after discussing tests for liability u/s 149 IPC) : Applying these tests to the facts found proved beyond reasonable doubt the accused Nos.1 to 5 can be held liable for the offence under Section 302/149 IPC for the assault resulting in death of Gopi Krishna while accused nos. 6 and 7 can be held liable for their individual acts of assault committed on Sanjay Patil. (Para 15)
       Held thereafter : So far as accused Nos. 1 to 5 are concerned, it can be safely inferred that they were the members of unlawful assembly armed with deadly weapons formed with the common object of fatally injuring the deceased Gopikrishna so as to cause his death. Their conviction for the offence under Section 302 r/w 149 IPC is liable to be sustained. If death has been caused in prosecution of common object of unlawful assembly, it is not necessary to record a definite and specific finding as to which particular accused out of the members of the unlawful assembly caused the fatal injury. Once an unlawful assembly has come into existence, each member of the assembly becomes vicariously liable for the criminal act of any other member of the assembly committed in prosecution of the common object of the assembly. (Para 16)
       So far as the assault on Sanjay Patil (PW-1) is concerned, the witnesses do not attribute any overt act qua Sanjay Patil (PW-1) to the accused Nos. 1 to 5. It appears that while beating the retreat, some of the accused other than accused nos. 1 to 5 noticed Sanjay Patil and diverted themselves to an assault on him. Assault on Sanjay Patil was not pre-planned nor shared as common object by accused Nos.1 to 5. No unlawful assembly was in existence nor formed into being at the spur of the moment so far as the assault on Sanjay Patil is concerned. (Para 17)
       Held then : We would like to deal specifically with the case of Rajendra Todankar (accused No.8). According to Sanjay Patil (PW-1), he was assaulted by three accused persons, namely, Anant @ Papya (accused No. 6) who stabbed on the right side of the stomach with a gupti; by Prakash Pednekar @ Vatanya (accused No. 7) who dealt a sword blow on the right side of upper head and by Rajendra Todankar (accused No. 8) who dealt sura (dragger) blows on his back twice and on the left arm near elbow, whereafter he fell down. During cross-examination he stated that the accused Rajendra Todankar had used his weapon with force while assaulting on him. Prashant (PW-5) states Vatanya (accused No. 7) and Rajendra Todankar (accused No. 8) assaulted Sanjay Patil. According to this witness, the weapon said to have been used by Rajendra Todankar was a chopper. During cross-examination he stated that Rajendra Todankar had dealt chopper blows forcefully on Sanjay. He further stated that the accused Babya had also stabbed Sanjay. Apart from the fact that there is divergence in the statements of the two witnesses as to the weapon which is attributed to accused No.8, what is more significant is that injuries by chopper or sura (dragger) are not to be found on the back of Sanjay and in the manner in which the two witnesses stated the injuries having been caused to Sanjay forcefully. Such use of sharp weapon would not result in mere abrasion on the back. There is no injury on the left arm of Sanjay (PW-1). Thus, the injuries specifically attributed to accused Rajendra Todankar by Sanjay (PW-1) and Prashant (PW-5) and consequently the role assigned to him in the incident is belied by medical evidence. Jaideep (PW-3) and Dyandeo Sawant (PW-4) have not mentioned even the presence of Rajendra Todankar much less any participation by him in the assault. This accused Rajendra Todankar is in government service. In his statement u/s 313 Cr.P.C. he stated that he is a social worker whose activities are not to the liking of Mukesh Purav, the gang leader, and that is the reason why he has been falsely implicated. The participation of Rajendra Todankar (accused No. 8) in the incident is rendered doubtful. (Para 18)
       So far as the accused Anant @ Papya (accused No. 6) and Prakash (a) Vatanya (accused No. 7) are concerned, they cannot be held to be the members of the unlawful assembly, which assaulted Gopikrishna. Their assault on Sanjay Patil (PW-1) is proved beyond reasonable doubt. Each one of them has caused simple injuries by sharp weapon on the person of Sanjay Patil. Therefore, they can each be held liable only for an offence punishable u/s 324 IPC. Their conviction under Section 302 r/w 149 IPC, so far as the murder of Gopikrishna is concerned, cannot be sustained and must be set aside. So also their conviction under Sections 143, 144 and 147 IPC must go. (Para 19)
       Held consequently : For the foregoing reasons, Criminal Appeal No. 651 of 2001 preferred by Rajendra Shantaram Todankar (accused No. 8 in the Trial Court) is allowed. His conviction is set aside and he is acquitted of the charges framed against him. He shall be released forthwith if not required to be detained in connection with any other offence. In Criminal Appeal No. 652 of 2001 the appellants are Santosh @ Kalya (A-3), Ravinder @ Bobby (A-5) and Anant @ Papya Shirodkar (A-6). The conviction of accused Santosh @ Kalya (A-3) and Ravinder @ Bobby (A-5) under Section 302 r/w 149 IPC along with the sentence of imprisonment for life are maintained. Their conviction under Section 324/149 IPC is set aside. So far as accused Anant @ Papya Shirodkar (A-6) is concerned, his conviction under Section 302/149 IPC as also under Sections 143, 144 and 147 IPC is set aside. He is held guilty under Section 324 IPC and for this offence sentence of R.I. for 6 months is maintained. Criminal Appeal No. 652 of 2001 is allowed in part to this extent. (Paras 20 and 21)

JUDGMENT

R.C. Lahoti, J.-Eight accused persons, namely, Ashok Bhikaji Gurav (accused No.1), Nathuram Bhikaji Gurav (accused No.2), Santosh @ Kalya Jagannath Shirwadkar (accused No.3), Santosh @ Babya Dashrath Nagvekar (accused No.4), Ravindra @ Bobby Anant Surve (accused No.5), Anant @ Papya Jagannath Shirodkar (accused No.6), Prakash @ Vatanya Laxman Pednekar (accused No.7) and Rajendra Shantaram Todankar (accused No.8) were tried on several charges framed under Sections 143, 144, 147, 302, 302/149, 302/34, 307, 307/149, 307/34, 324, 324/149, 324/34 and 324/511 IPC. On trial all the accused persons were held to have committed offences punishable under Sections 143, 144, 147, 302/149 and 324/149 IPC. For offence under Section 302 read with Section 149 IPC each of the accused persons was sentenced to suffer imprisonment for life and to pay a fine of Rs.1000/-, in default of payment to suffer further R.I. for 6 months. For offence under Section 324/149 IPC each of the accused was sentenced to suffer R.I. for 6 months. Though all the accused were also convicted for the offences punishable under Sections 143, 144 and 147 of the IPC but no separate sentences were awarded thereon. All the eight accused persons preferred an appeal before the High Court. During the pendency of the appeal Santosh @ Babya Dashrath Nagvekar and Prakash @ Vatanya Laxman Pednekar - the accused numbers 4 and 7, died. The appeal surviving for decision as regards the six accused was held liable to be dismissed upholding the conviction as recorded and the sentences as passed by the Trial Court.

2. Ashok Bhikaji, accused No.1 and Nathuram Bhikaji accused No.2 filed SLP (Crl.) No.3738/2000 which was dismissed as not admitted by this Court on 25.1.2001. Accused No.8, Rajendra Todankar filed SLP (Crl.) 4205/00 which has been registered as Crl. Appeal No.651/2001 on leave to appeal having been granted. SLP (Crl.) preferred by Santosh Shirwadkar, Ravindra Surve and Anant Shirodkar (accused Nos. 3, 5 and 6) has been registered as Criminal Appeal No. 652/02 on leave being granted. Thus, in substance it is the guilt of the accused Nos.3, 5, 6 and 8 which survives for determination in these appeals.

3. For the sake of convenience the accused persons shall be referred to by their numbers as they were arrayed before the Sessions Court. Reference to accused Nos. 1 and 2 though their SLP (Crl.) has been dismissed and to accused Nos. 4 and 7, who have died during the pendency of their appeal in the High Court is being made where necessary only for the purpose of determining the guilt of the accused-appellants before us.

4. In the locality known as Prabhadevi situated within the jurisdiction of police station Dadar of Mumbai there is a place known as Hatiskar Wadi. Nariman Bhat Nagar is an adjoining locality. One Mukesh Purav resides in Hatiskar Wadi. Ashok Gurav, accused No.1 resides in Nariman Bhat Nagar. These two persons are ring-leaders of their respective gangs formed in the two localities and they are involved in various illegal activities. The injured persons and the accused persons are residents of these two localities and were known to each other since before the incident. An acute rivalry prevails between the two groups. Prior to this incident on the festival of Janmashtami there was a competitive game played known as Dahi Handi, also known as Govinda , wherein both the gangs had participated and quarrelled with each other. The present incident took place on 27th September, 1991 at about 8.30 p.m.

5. There is a four-storeyed building, the ground-floor whereof is occupied by a restaurant known as "Sanket Bar . There is a road in front of the hotel. The door leading to the way for upper floors of the building is by the side of the hotel. There is a pan shop near the hotel. By the side of the hotel there are other shops providing the look of a commercial complex.

6. Gopikrishna, who died in the incident, was standing in front of the entrance door of the building. Jaideep

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2003 Supreme(SC) 5

IMPORTANT POINTParticipation of Rajendra Shantaram Todalkar (Accused 8) in the crime is doubtful and his appeal is allowed. Criminal appeal by other three appellants is partly allowed to the extent discussed in the judgment.

IMPORTANT POINT
Participation of Rajendra Shantaram Todalkar (Accused 8) in the crime is doubtful and his appeal is allowed. Criminal appeal by other three appellants is partly allowed to the extent discussed in the judgment.