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SUPREME COURT OF INDIA
P.N. BHAGWATI, V.R. KRISHNA IYER AND S. MURTAZA FAZL ALI, JJ.
Musakhan and others, Appellants
Versus
State of Maharashtra, Respondent.
Criminal Appeal No. 305 of 1971
Decided on 11-10-1976.
Advocates appeared
Mr. V. S. Desai, Sr. Advocate, (M/s. M. G. Karmali, R. S. Sodhi and Hardev Singh, Advocates with him), for Appellants; Mr. S. B. Wad, Advocate, for Respondent.
Indian Penal Code Sec. 149/425 Probation of Offenders Act 1958, Sec. 6-Appellant participating in acts of his chief along with the members of the 'Unlawful Assembly-Conviction u/s 149/425 I.P.C. maintained-Appellant a boy of 20 years-Benefit u/s 6 given to the appellant-Principles behind application of Sec. 3 indicated. (Paras 8, 9, 11)
Certainly. Based on the provided legal document, here are the key points:
The case involves a criminal appeal related to rioting and unlawful assembly, with the appellants being accused of participating in a mob that committed acts of vandalism, damage to property, and theft [judgement_subject].
The incident was part of a series of separate but related acts, including damage to hotels, shops, and a hostel, which were carried out by a mob with a common object but involved different members at various stages (!) .
Participation in a mob or unlawful assembly requires that the individual was present and shared the common object at all crucial stages of the incident; mere presence without sharing the common object does not establish guilt (!) .
The evidence indicated that some accused were members of the unlawful assembly at specific stages, but not throughout all incidents, leading to the conclusion that they could not be convicted for acts they were not shown to have shared the common object in (!) .
Several accused were identified as having participated in specific acts such as damaging property or stealing, with their involvement assessed based on eyewitness testimony and police evidence (!) (!) .
The age of the accused at the time of the incident was a significant factor; younger accused, such as those aged 15 and 20, were considered for leniency under provisions for juvenile offenders, with directions for their release on bonds and reporting requirements (!) (!) .
The court emphasized that a person’s mere presence in a mob does not automatically make them guilty of all acts committed; each individual's participation must be proved for each specific act (!) .
The evidence against some accused was found insufficient or uncorroborated, leading to their acquittal or to their being dealt with under provisions for probation, including bonds and good behavior conditions (!) (!) (!) .
The convictions for conspiracy or participation in dacoity were modified to lesser charges such as theft or mischief, with sentences reduced accordingly (!) (!) .
The court upheld certain convictions but reduced sentences for some accused, and acquitted others entirely, based on the evaluation of evidence, identification, and individual participation (!) .
The overall approach was to distinguish between mere presence, active participation, and shared common object, ensuring that each accused’s liability was based on concrete evidence of their role in the specific acts (!) .
The sentences for all accused were ordered to run concurrently, and the court emphasized the importance of reformative measures for juvenile offenders (!) .
The appeal was partly allowed, with some convictions set aside or modified, and others upheld, reflecting a careful assessment of each accused’s involvement and the evidence presented (!) .
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JUDGMENT
S.M. FAZL ALI, J. :—This appeal by special leave is directed against the judgment of the Bombay High Court dated 4/8 November, 1971 dismissing the appeal of the appellants and affirming the convictions and sentences passed on them by the Additional Sessions Judge, Aurangabad. The appellants were accused Nos. 4, 7, 8, 9, 11, 12, 20 & 22. The appellants were tried along with other accused persons by the Additional Sessions Judge, Aurangabad who convicted 14 out of 24 accused under various sections of the Indian Penal Code. The High Court, acquitted six persons, namely, accused Nos. 15, 16, 17, 19, 21 and 24, but upheld the convictions of the appellants. The High Court refused to give a certificate for leave to appeal to this Court, and after obtaining special leave the appellants have filed the present appeal.
2. The appellants were convicted under Section 395, I.P.C. to rigorous imprisonment for two years and a fine of Rs. 100/- each, under Sections 323/149 to three months rigorous imprisonment, under Sections 427/149 to one years rigorous imprisonment, under Sections 435/149, I.P.C. to two years - rigorous imprisonment and a fine of Rs. 100/- each under Sections 457/149, I.P.C. to two years rigorous imprisonment and under Section 147, I.P.C. to one years rigorous imprisonment all the sentences to run concurrently. For the purpose of brevity instead of naming the accused individually they will be referred to in this judgment as A No. so and so. Appellant No. 1 Musa Khan is A-4, appellant No. 2 Sardar Khan is A-7, appellant No. 3 Jani is A-8 appellant No. 4 Mohd. Fashiuddin is A-9 appellant No. 5 Mohd Eqbal is A-11, appellant No. 6 Abdul Hamid in A-12, appellant No. 7 Saber Ali Khan is A-20 and appellant No. 8 Mohd. Azam Khan is A-22.
3. We might further state that so far as A-4 is concerned he is brother of A-11 and A-12. A-4 was aged about 20 years in 1968 when the occurrence is said to have taken place. A-7 was about 15 years on the date of occurrence and A-9 was about 20 years on the date of occurrence. But other accused were over 25 years of age. We have made a particular reference to this fact, because as important argument was advanced before us that even if the offences are held to have been proved against A-4, A-7 and A-9 this was a fit case in which they should have been proceeded under Sections 4 and 6 of the Probation of Offenders Act, 1958.
4. This is an unfortunate story of a band of ruffians who appear to have entered upon a rabid misadventure and a mischievous expendition by committing acts of vandalism and damage to the properties of rivals and enemies in order to wreakvengeance for boycotting of the National Hotel by the students. The background against which the present dramatic occurrence appears to have shot up is that there is a National Hotel at Aurangabad which belongs to some of the appellants and which was patronized by the students of the local Engineering College. Some differences arose between the management of the hotel and the student as a result of which the students completely bycotted the National Hotel and transferred their patronage to Bharat Lodge run by P.Ws. 1 and 16. As a result of this change in the attitude of the students the owners of the National Hotel nursed a serious grouse not only against the Bharat Lodge which was being patronised by them as a result of which the main business of the National Hotel almost came to a standstill. The immediate provocation for the massive raid conducted by the appellants and other was an incident which happened on August 21, 1968 when some of the students of the Engineering College indulged in a small rioting and caused damage to the National Hotel, Paradise Hotel, cycle shop, a tailoring shop owned by A-16 & A-17 and a dispensary of Dr. Sayeed. The damage caused by the students was in the neighbourhood of Rs. 3000/- to Rs. 4000/-. About two months later i.e. on October 20, 1968 an employee of the National Hotel sustained some injuries and was
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