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2000 Supreme(Bom) 587
IN THE HIGH COURT OF BOMBAY
(NAGPUR BENCH)
S.G. Mahajan, J.
Shankar s/o. Budhaji Moundekar others .... Appellants.
Versus
State of Maharashtra.... Respondent.
Criminal Appeal Nos. 47 of 1996, decided on 31-7-2000.
Advocates appeared :
M.R. Daga, R.M. Daga N.A. Badar, for appellants.
K.S. Dhote, A.P.P., for respondent.
Headnote:Section 307-Evidence Act, i872. Sections 45 and 59-occular evidence by injured witness and his wife-But no reference of 5th accused-Attack took place in dark Identification not possible-As the accused were neighbours to them and tube-light was available-Identification cannot be doubted.- The evidence also shows that there are some houses situated near the spot. So the light from those houses also could reach the place of occurrence. PWs Laxmibai and Nilkanth could very well recognize the accused persons as they were acquainted with them being the neighbours and the persons having enmity with them. So the fact that accused Shankar gave a blow of spear on the abdomen of PW Nilkanth and caused through and through injury, is established.
Section 307 and 34-Proof of Common intention-Conviction of attempt to murder-Combined attack by members of joint family-Held- As per sequence of evidence on record it is clear that accused had acted with common intention, liable under Section 34, IPC.- The number and nature of injuries on the person of the victim clearly indicate that without the assistance of the other accused, such severe injuries could not be inflicted. The facts and circumstances detailed above also indicate the common intention on the part of the other accused. The principal act of inflicting spear blows was done by accused Shankar and the other accused facilitated the commission of that act by participating in one or the other way. Hence, they are liable under Section 34, IPC.
Sections 307, 141, 146, 147, 148 and 149-Meaning of unlawful assembly-Conviction for attempted murder and rioting-Only 4 accused appealed-No necessity that number of accused before Court should be 5 or more-There shal1 be no relevancy of subsequent reduction of members by death or absconding or not known-If condition of Section 141 that is assembly of 5 or more persons is fulfilled-When accused named were four, there shal1 not be any i1legality.-It is not necessary that the number of accused before the Court must be five or more. What is required is the number of persons forming the assembly, which is to be designated as an unlawful assembly, must be five or more. Even if the number of accused before the Court is less than five, but the members of assembly are five or more, it can be regarded as an unlawful assembly, if the conditions laid down in Section 141, IPC about the common object of such assembly are fulfilled.
Sometimes some members of assembly are unknown. Sometimes some members forming the assembly are dead subsequently. Sometimes some members are absconding and are not before the Court at the time of trial. Thus, even if the number of accused persons actually facing the trial before the Court is less than five, but the number of persons in the assembly, which is to be designated as unlawful assembly, is five or exceeds five in total, the above-said sections are attracted.
Sections 307, 147, 148 and 149-Evidence Act, 1872, Section 59-Cr PC, 1973, Sections 154 and 165Proof of unlawful assembly-Conviction-Rioting and attempt to murder-By unlawful assembly-As per evidence only 4 had attacked victim-No mentioning of 5th accused-In such circumstances Sections 147, 148 and 149, IPC do not have relevancy, No witness has named 5th accused-The fact that they did not utter even a single word about any role having been played by deceased Kashinath or even about his presence on the spot, would necessarily raise an inference that deceased Kashinath was present on the spot and was not involved in the commission of offence in any manner. Thus even as per the own allegations of the prosecution witnesses in their evidence, only four persons were involved in the commission of offence. The offences under Sections 147, 148 and 149, IPC are, therefore, not attracted and the conviction of the accused-appellants of those offences would not sustain.
2. The case of the prosecution is as under :
(a) Victim Nilkanth Ganpatrao Parate is the resident of Zade Chowk, Lalganj, Nagpur. He resides there with his wife complainant Laxmibai. Appellants No. 1 to 4, who are the original accused No. 1 to 4 respectively, are also the residents of the same locality and they reside in the neighbourhood, that is just adjacent to the house of victim Nilkanth. They all are the members of the joint family. One of the accused in this case, namely Kashinath Budhaji Moundekar, who died on 12-6-1990, was also the member of the joint family of the accused-appellants. Victim Nilkanth was running a pan stall. Accused Prabhakar was engaged in the business of selling illicit liquor and accused Ramrao used to help him in that business. Victim Nilkanth and all the accused persons including deceased Kashinath were on inimical terms with each other since prior to the incident and there used to be quarrels between them. The reason behind the quarrels was that accused Prabhakar and Ramrao used to hide liquor bottles near the wall on the rear side of the house of Nilkanth and Nilkanth used to object to the same. At the time of Pola festival just preceding the incident in this case, such quarrel had taken place between the accused persons and Nilkanth. The quarrels used to occur between the womenfolk also of these two families on the count of filling water from the common public water tap situated near their houses. These quarrels between the ladies were also taken up by the male members of these two families.
(b) On 23-2-1989 at about 7.30 to 7.45 p.m., Nilkanth was sitting on a bench in front of his house in the courtyard. Complainant Laxmibai was working in the house. That time, accused Prabhakar and Raju rushed towards Nilkanth. There was an exchange of words between Nilkanth and these two accused. The accused questioned as to why Nilkanth was objecting to the concealment of liquor bottles by them and was destroying their business. Nilkanth strongly opposed. Thereafter accused Prabhakar and Raju caught hold of both the arms of Nilkanth. Accused Shankar, who was armed with a Ballya spear, rushed towards Nilkanth. At the same time, accused Ramrao rushed with a wooden stick on the person of Nilkanth and gave a blow thereof on his head. Accused Shankar hit Nilkanth with spear on his abdomen on left side. Nilkanth managed to rescue himself from the clutches of the accused persons and rushed towards the chhapari of neighbour named Lanjewar in order to save himself. All the accused pulled Nilkanth out of the chhapari in the courtyard. Thereafter accused Shankar again dealt a blow of spear to Nilkanth and accused Ramrao gave a stick blow on Nilkanth's shoulder. Complainant Laxmibai, who was working in the house, heard the shouts of Nilkanth and rushed to the spot. She noticed that the accused persons were
