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2009(4) Supreme 380
SUPREME COURT OF INDIA
(From Bombay High Court)
Dr. Arijit Pasayat and Asok Kumar Ganguly, JJ.
Santosh Devidas Behade and Ors. — Appellants
versus
State of Maharashtra — Respondent
Criminal Appeal No. 445 of 2009
(Arising out of SLP (Crl.) No.3895 of 2006)
Decided on : 06-03-2009
(b) Indian Penal Code, 1860 – Section 149 – The offence must be connected immediately with the common object of the unlawful assembly of which the accused was member – The provision would still be applicable if it can be shown that the offence was such as the members knew was likely to be committed – It is not necessary to prove each member’s act. (Paras 7 and 8)
AIR 1956 SC 731; (1997) 3 SCC 747; (1989) 1 SCC 437; (2002) 8 SCC 381; SLP (Crl.) No.1494/2004 – Relied upon.
(c) Indian Evidence Act, 1872 – Section 3 – Merely because the eye-witnesses are family members, their evidence cannot be discarded. (Para 10)
AIR 1953 SC 364; (1974) 3 SCC 698; AIR 1957 SC 614; AIR 1965 SC 202; AIR 1973 SC 2407; (2002) 3 SCC 76; (2002) 8 SCC 381; (2005)10 SCC 404; (2007)1 SCC 699; SLP (Crl.) No.3220 of 2007; SLP (Crl.) No. 3251 of 2008 – Relied upon.
(d) Indian Evidence Act, 1872 – Section 9 r/w section 162, Cr.P.C. – Identification tests do not constitute substantive evidence – It can at best be corroborative – To be valid, test identification parade should be conducted as soon as after the arrest of the accused – These parades are essentially governed by Section 162 of the Code. (Paras 17 and 18)
(1971) 2 SCC 75; (1973) 2 SCC 406; AIR 1958 SC 350; AIR 1960 SC 1340; AIR 1970 SC 1321; AIR 1972 SC 102 – Relied upon.
(e) Indian Evidence Act, 1872 – Section 9 r/w section 162, Cr. P.C. – Absence of T.I. Parade is not fatal in all cases. (Para 19)
(1970) 3 SCC 518; Cri. Appeal 92 of 1956; (1975) 4 SCC 480 – Relied upon.
(f) Indian Evidence Act, 1872 – Section 9 – Much evidentiary value cannot be attached to the identification of the accused in Court where identifying witness is a total stranger. (Para 22)
(1996) 8 SCC 630 – Relied upon.
(g) Indian Evidence Act, 1872 – Section 9 – When the accused person is not previously known to the witness concerned then identification of the accused by the witness soon after his arrest is of great importance. (Para 24)
1995 Supp (1) SCC 80; (1979) 1 SCC 31; (2000)1 SCC 358; (2003) 5 SCC 746; (2005) 9 SCC 631 – Relied upon.
Facts of the case :
1. At the time of incident, the Complainant-Chandrakalabai was residing with her husband Bharat Mukinda Kharat (the ‘deceased’) and two sons in the house situated in the village Dharkanha.
2. On 7th June, 1998, at about 8.00 p.m. accused Namdev Tarpe came to the house of the complainant and told Bharat that persons from village Yehala were coming to beat him and he should run away from the spot, or release the dogs. When Bharat came out of the house, five to six persons encircled Bharat in the courtyard of his house and started beating him. He later succumbed to his injuries.
3. The trial Court and found the accused persons guilty.
4. High Court upheld the conviction.
Finding of the Court :
There is no merit in the appeal.
Result : Appeal dismissed.
JUDGMENT
Dr. Arijit Pasayat, J.—
1. Leave granted.
2. Challenge in this appeal is to the judgment of a Division Bench of the Bombay High Court, Nagpur Bench, upholding the conviction of the appellants for offences punishable under Sections 147, 148, 302 read with Section 149 of the Indian Penal Code, 1860 (in short the ‘IPC’). By the impugned order two Criminal Appeals i.e. Criminal Appeal Nos. 314/2001 and 346/2001 were disposed of. Accused persons are Namdev (A-1), Santosh (A-2), Mangal (A-3), Subhash (A-4) and Sudam (A-6). The High Court by the impugned judgment dismissed the appeals.
3. Background facts in a nutshell are as follows:
The Complainant-Chandrakalabai widow of Bharat Kharat was a resident of Village Dharkanha. At the time of incident, she was residing with her husband Bharat Mukinda Kharat (hereinafter referred to as the ‘deceased’) and two sons in the house situated in the village Dharkanha. It is the case of the prosecution that Shivcharan (PW6), son of the Complainant Chandrakala (PW2) as well as Taqnaji, son of Shakuntaiabai, the keep of deceased Bharat and Shakuntalabai were residing in the said house. On the day of incident, Shakuntala was not present as she had gone to Pusad. At that time, work of uprooting the groundnut crop was in progress in the field of deceased Bharat and several persons from village Londhari were working in his field. There was a pit dug in front of the house of Bharat for construction of one room. On 7th June, 1998, at about 1.00 p.m., deceased Bharat and one Tulshiram Vadar had gone to Pusad and returned home at about 7.00 p.m. After that, deceased Bharat was taking meal in his house and Tulshiram went to sleep in front of the house. After some time, at about 8.00 p.m. accused Namdev Tarpe came to the house of the complainant and told Bharat that persons from village Yehala were coming to beat him and he should run away from the spot, or release the dogs. When Bharat came out of the house, five to six persons encircled Bharat in the courtyard of his house and started beating him. They were armed with axes, sticks, crowbars and beat Bharat with the said weapons. When Bharat was being assaulted, he shouted for help loudly saying “Chandrakala, I am dying.” The complainant -Chandrakala went to Tulsiram and awakened him. Tulshiram tried to rescue Bharat from the clutches of the accused; but the accused did not allow him to help the deceased. The complainant Chandrakala thereafter went towards the persons of village Londhari and stayed there along with her sons. The assailants also came there and threatened them not to disclose the incident and asked them to leave. The persons from village Londhari thereafter left the place. The accused persons also left the place. The complainant Chandrakala along with her sons went near her husband deceased Bharat and noticed injuries on his person, who had already succumbed to those injuries on the spot. The complainant asked her son Shivcharan (PW-6) the names of the assailants. Shivcharan told her that the assailants were from village Yehala and gave their names as “Namdeo Tarpe, Shamrao Behade, Subhash Behade, Santosh Behade, Sahebrao and one unknown person to whom he knew by face.”
The complainant along with her sons thereafter went to the house of Police Patil of village Dharkanha and narrated the incident. The complainant stayed there for the night and on the next day, she went to Police Station, Pusad (Rural) and lodged a report. In the report, she mentioned the names of five accused persons and one unknown person. She also stated in the report that accused persons assaulted her husband because one year before the incident, there were murders of one Atmaram and Laxman of village Yehala and in the said crime, her husband deceased Bharat was arrested and, therefore, the assailants for taking revenge of the said murders, and had assaulted Bharat in the incident in question. On the basis of the report lodged by the complainant investigation was u
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