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IN THE HIGH COURT OF BOMBAY
V.P. Tipnis M.S. Vaidya, JJ.
Jakir Ibrahim Khan.... Appellant.
Versus
State of Maharashtra .... Respondent.
Criminal Appeal No. 2 of 1988 with Criminal Appeal No. 8 of 1988, decided on 6/7-8-1990.
Advocates appeared :
V.G. Mdbhavi, for appellant accused No. 1.
V.K. Thailramani, Additional Public Prosecutor, for respondent-State.
A.R.S. Baxi, for appellant accused No. 7.
Sections 147 and 149-Conviction for murder-Common object-Seven accused-Five of them acquitted-Two remained whether formed unlawful assembly? There must be nexus between common object and offence committed-If common object established every member of assembly becomes liable-Held, provisions of Sections 147 and 149 cannot be invoked and remaining two accused also liable to be acquitted.
In Allauddin Mia" v. State of Bihar, AIR 1989 SC 1456 it was laid down that in order to fasten vicarious responsibility on any member of an unlawful assembly, the prosecution must prove that the act constituting an offence was done in prosecution of the common object of that assembly or the act done is such as the members of that assembly knew to be likely to be committed in prosecution of the common object of that assembly.
What is important in each case is to find out if the offence was committed to accomplish the common object of the anomaly or was one which the members knew to be likely to be committed. There must be a nexus between the common object and the offence committed and if it is found that the same was committed to accomplish the common object every member of the assembly will become liable for the same.
It appears that as a result the fateful incident followed in the manner in which it took place, practically in no time. Even if it is assumed that more than 5 persons had assembled there it could hardly be said that they had formed any common object much less the common object to murder deceased Laxman as was averred in the charge framed by the learned Sessions Judge. Again, there is hardly any reason to suppose that the so called assembly had developed, on the spur of the moment the common object in the aforesaid direction and that they or some of them had committed the act in question with the aforesaid common object. Deceased Laxman had protested against the act which, probably according to him had offended the modesty of his wife ;and as a result of the altercation an act of assault on him had taken place. Therefore it cannot be said that the act which had brought about the death of deceased Laxman was the result of any act done in prosecution of common object of the assembly.
Another ruling of the Supreme Court relied upon before us was in Achhey Lal v. State of U. P., AIR 1978 SC 1233. In that case as many as 15 named persons were alleged to have made in an assault or the deceased who was said to have been murdered 14 out of those persons were acquitted by the High Court and only the appellant before the Supreme Court stood convicted of the offence of murder under Section 302 of the Indian Penal Code read with Section 149 of the Indian Penal Code. The Supreme Court held that as there was no finding by the High Court that after the acquittal of the accused, the unlawful assembly consisted of five persons or more, known or unknown, identified or unidentified, it was absolutely clear that on the facts of the case the provisions of Section 149 and 147 of the Indian Penal Code could not be invoked.
Sections 147 and 149-Conviction for murder-Common object-Seven accused-Five of them acquitted-Two remained whether formed unlawful assembly? There must be nexus between common object and offence committed-If common object established every member of assembly becomes liable-Held, provisions of Sections 147 and 149 cannot be invoked and remaining two accused also liable to be acquitted.
In Allauddin Mia" v. State of Bihar, AIR 1989 SC 1456 it was laid down that in order to fasten vicarious responsibility on any member of an unlawful assembly, the prosecution must prove that the act constituting an offence was done in prosecution of the common object of that assembly or the act done is such as the members of that assembly knew to be likely to be committed in prosecution of the common object of that assembly.
What is important in each case is to find out if the offence was committed to accomplish the common object of the anomaly or was one which the members knew to be likely to be committed. There must be a nexus between the common object and the offence committed and if it is found that the same was committed to accomplish the common object every member of the assembly will become liable for the same.
It appears that as a result the fateful incident followed in the manner in which it took place, practically in no time. Even if it is assumed that more than 5 persons had assembled there it could hardly be said that they had formed any common object much less the common object to murder deceased Laxman as was averred in the charge framed by the learned Sessions Judge. Again, there is hardly any reason to suppose that the so called assembly had developed, on the spur of the moment the common object in the aforesaid direction and that they or some of them had committed the act in question with the aforesaid common object. Deceased Laxman had protested against the act which, probably according to him had offended the modesty of his wife ;and as a result of the altercation an act of assault on him had taken place. Therefore it cannot be said that the act which had brought about the death of deceased Laxman was the result of any act done in prosecution of common object of the assembly.
Another ruling of the Supreme Court relied upon before us was in Achhey Lal v. State of U. P., AIR 1978 SC 1233. In that case as many as 15 named persons were alleged to have made in an assault or the deceased who was said to have been murdered 14 out of those persons were acquitted by the High Court and only the appellant before the Supreme Court stood convicted of the offence of murder under Section 302 of the Indian Penal Code read with Section 149 of the Indian Penal Code. The Supreme Court held that as there was no finding by the High Court that after the acquittal of the accused, the unlawful assembly consisted of five persons or more, known or unknown, identified or unidentified, it was absolutely clear that on the facts of the case the provisions of Section 149 and 147 of the Indian Penal Code could not be invoked.
2. Original accused Nos. 1 and 7 were convicted for the offences punishable under section 147 of the Indian Penal Code, section 148 of Indian Penal Code section 323 of the Indian Penal Code read with section 149 of the Indian Penal Code and were sentenced for the first and second mentioned offences to suffer rigorous imprisonment for one year on each count and for the third mentioned offence, to suffer rigorous imprisonment for six months and to pay a fine of Rs. 100/-. In default to suffer rigorous imprisonment for 15 days. Both the accused were also convicted of a charge for offence punishable under section 302 of the Indian Penal Code read with section 149 of the Indian Penal Code and were sentenced to suffer rigorous imprisonment for life. The substantive sentenced were to run concurrently.
3. According to the prosecution, the complainant Manda Shirke and her husband (deceased Laxman) lived with their children in one hut in a slum area called Sainath hutment, Shivajinagar, Pune. The building of the office of the Labour Union of the Corporation employees was being constructed in the vicinity of their residence and the work of plinth and slab was partly completed at the time of incident namely 26-9-1986. As it was a rainy season, the deceased and his family members had gone under the cover of roof over the plinth to sleep there for the night and many more persons from the vicinity also were sleeping on the said plinth at that time. At about 10.00 p.m. the present appellants-accused Nos. 1 and 7 came there and started pulling chaddars spread on each of the persons sleeping there in search of one person whom they wanted. In doing so, they pulled the chaddar with which witness Manda was covered. The deceased Laxman woke up and registered his strong protest about this act of misconduct in the context of his wife. The appellants are said to have disclosed that they were in search of one Suresh Thombare and Hussain Shaikh. There was some exchange of hot words between the deceased Laxman and the appellants. The appellants then whistled by way of a signal and invited original accused Nos. 2 to 6 to this place. Original accused No. 1 was armed with a small stick with a chain tied to it and accused No. 7 Suresh was armed with a knife. The others also possessed one or the other type of weapons. It is alleged that in the flight accused No. 7 stabbed deceased Laxman with a knife. Accused No. 1 is not said to have made any assault. Deceased Laxman then tell down in injured condition and was then attended to by the neighbours after the assailants had made their way. On his way to the hospital, he is said to have died. The matter was reported to the polici by witness Manda and a F.I.R. was recorded. P.I. Mahajan took over the investigation and completed the same. In course of time accused No. 1 and one other accused were arrested at Ambajogali, District Beed on or about 1-10-1986 and accused No. 7 was arrested on 5-10-1986. On 1-10-1986 accused No. 1 is said to have produced a stick attached with chain. On 13-10-1986 an identification parade was held at the hands of Special Judicial Magistrate. The witness Manda Shirke is said to have identified accused Nos. 1, 3, 5 and 7. Witness Arun Adsul is said to have identified accused Nos. 1, 2, 3 and 7. Witness Deepak Pandhare is said to have identified accused Nos. 1, 2 and 5. After completing the investigation accused Nos. 1 to 7 were charge-sheeted on 17-12-1986 for offences punishable under sections 147 I.P.C. 148 I.P.C., 302 I.P.C. read with 14
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