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1997 Supreme(Bom) 406
IN THE HIGH COURT OF BOMBAY
Vishnu Sahai, J.
Ajit Bhimrao Mali others ..... Appellants.
Versus
State of Maharashtra others .... Respondents.
Criminal Appeal No. 179 of 1990, decided on 4-8-1997.
Advocates appeared :
B.R. Patil, for appellants.
S.R. Borulkar A.P.P., for respondent No. 1.
D.S. Sawant, for respondent Nos. 2 3.
For rioting and unlawful assembly, a minimum of five persons are required to constitute an unlawful assembly, and the participation of less than five persons cannot sustain convictions for these offenses.
Headnote:
CRIMINAL APPEAL - SECTION 307, 147, 148, 324, 323, 504 R/W 149 I.P.C. - RIOTING - UNLAWFUL ASSEMBLY - COMMON INTENTION - SIMPLE INJURIES - SENTENCING - INTERPRETATION OF SECTIONS 141, 146, 147, 148, 307, 324 I.P.C. - SUMMARY DISMISSAL OF THREE APPELLANTS - REDUCTION OF SENTENCE FOR REMAINING APPELLANTS - FINE IMPOSED AS COMPENSATION TO VICTIMS.
Fact of the Case:
A group of individuals, including the appellants, engaged in a violent altercation, resulting in injuries to two victims, Makarand and Manik. The appellants were charged with various offenses, including rioting, unlawful assembly, and causing simple injuries.
Finding of the Court:
The court found that the evidence supported the convictions of four appellants for causing simple injuries to the victims under section 324 r/w 34 I.P.C. However, the court acquitted three other appellants due to insufficient evidence.
Issues: 1. Whether the appellants were guilty of rioting and unlawful assembly under sections 147 and 148 I.P.C., respectively. 2. Whether the appellants were guilty of causing simple injuries under section 324 I.P.C. 3. Whether the appellants were guilty of attempt to murder under section 307 I.P.C.
Ratio Decidendi: 1. The court held that the appellants could not be convicted of rioting and unlawful assembly since the number of accused whose participation was accepted by the court was less than the minimum required for such offenses. 2. The court found that the evidence supported the convictions of four appellants for causing simple injuries to the victims under section 324 r/w 34 I.P.C., as they had participated in the incident with the common intention to inflict simple injuries. 3. The court held that the evidence did not support the convictions of the appellants for attempt to murder under section 307 I.P.C., as the injuries sustained by the victims were not life-threatening.
Final Decision: The court partly allowed the appeal, acquitting three appellants and reducing the sentences of the remaining four appellants to a fine of Rs. 2,500/- on each of the two counts under section 324 r/w 34 I.P.C. The court also directed that the fine be paid as compensation to the victims.
i) Under section 307 r/w 149 I.P.C. to five years R.I. and to pay a fine of Rs. 10,000/- in default to suffer R.I. for one year;
ii) Under section 147 I.P.C. ) A consolidated sentence of 6 months
iii) Under section 148 I.P.C.) R.I. and a fine of Rs. 500/- i.d. to suffer R.I. 3 months.
It needs to be mentioned that nine other co-accused persons, who were put up for trial, along with the appellants, have been acquitted vide the impugned judgment.
2.At the very outset, I would like to observe that the learned trial Judge erred in awarding a consolidated sentence to the appellants, for offences under section 147 and 148 I.P.C. The law is that on each count, a separate sentence should be awarded, to the guilty accused.
3.In short, the prosecution case runs as under :-
On 9-2-1987, the informant Makarand Ranganekar, P.W. 1, along with his friend Raju Kashid, (not examined) had gone to eat paan in Kakkaya Chowk in Jawahar Nagar, District Kolhapur. It is said that the appellant-Ganpat was also there and some boys from Kakkaya Chowk, pushed him, resulting in his falling down. When the complainant and Raju Kashid, picked up the appellant-Ganpat, the said boys demonstrated as to why the complainant should have picked up Ganpat. Thereafter, the complainant, Raju and the said boys went away to their houses.
After taking his meals at about 8.30 p.m. same day, the complainant came to Datta Samarat Chowk in Jawahar Nagar in the District of Kolhapur. He found that Manik Patil, P.W. 7 and Raju were also sitting there and went over to them. In the meantime, about 15 persons, including the appellants, came and started abusing complainant. The appellant-Ajit assaulted him with a cycle chain on his head as a consequence of which he fell down and thereafter, the appellants-Vasant, and Ganpat, inflicted stick blows on his person. The evidence is that when Manik intervened, the appellants, started assaulting him; Ajit with a cycle chain, Vasant and Ganpat, with sticks, and Jayendra with an iron bar and the weapons, with which Krishna and Prakash assaulted, have not been disclosed in the evidence. It is said that appellant-Datta was abusing.
It is said that after assaulting Makarand and Manik, the appellants and others ran away. It is said that they were recognised in electric light which was burning there.
Evidence is that Makarand and Manik had sustained serious injuries. The former was rushed to the private dispensary of Dr. Girish Shetye, P.W. 2 and the latter to the C.P.R. Hospital, Kolhapur.
4.Evidence of Dr. Shetye is that same day at 9 p.m., he examined Makarand and found that he had suffered an injury on his occipital and right temporal region. He applied 11 stitches to the said injury. Thereafter, he advised Manik to receive medical treatment at the C.P.R. Hospital, Kolhapur.
5.Evidence is that Dr. Chandrakant Shinde, P.W. 9, medically examined Manik at 9.30 p.m. on the same day, at the C.P.R. Hospital, Kolhapur. On his person, he found following injuries :-
"1. Lacerated wound, 3" above left eye-brow.
2. Clinically fracture, frontal bone.
3. Haematoma, above wound No. 1.
4. Abrasion, right fore arm, exterior aspect.
5. Two abrasions, lower lateral part of right thigh.
6. Minor abrasion, below thyroid cartilage.
7. Haematoma, 3' below rt. elbow posteriorly."
He stated that Manik was unconscious. In his opinion, his injuries were simple in nature and must have been caused by a hard and blunt object like sticks, six hours prior to the medical examination. It may be mentioned that in his cross-examination, in para 12, he stated that he suspected fracture of frontal bone but, x-ray report shows that there was no such fracture.
6.The F.I.R. of the incident was lodged by P.W. 1 Makarand at 1.55 a.m.
