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IN THE HIGH COURT OF JUDICATURE AT BOMBAY (AURANGABAD BENCH)
M. T. JOSHI, J.
Appasaheb @ Nandu s/o. Babanrao Yeole & Ors.
Vs.
The State of Maharashtra
Criminal Appeal No. 522 of 2012 with Criminal Appeal No. 73 of 2013
Decided On: 2nd August, 2013
Common intention under Section 34 of Code creates substantive offence whereas unlawful assembly under Section 149 of Code is a constructive offence. - While Section 34 of the IPC creates substantive offence, Section 149 of the IPC is a constructive offence. Section 34 of the IPC places all the persons acting in furtherance of common intention causing singular criminal act on the same footing; each of liable for entire criminal act. Section 149 of the IPC constructively holds liable each of the members of the unlawful assembly whether he has done or not done, participated or not participated in any act or any part of the act in certain circumstances. Those certain circumstances are,
(i) That the person was a member of unlawful assembly.
(ii) he shared common object of the said assembly or,
(iii) he knew that definite offence is likely to be committed in prosecution of that object.
Then if such offence is committed, a mere member is liable equally with other members of unlawful assembly, who have actually committed offence or participated in the commission of said offence.
[Indian] Penal Code, 1860 - Sections 304 and 149 - Conviction under.
Where one accused brought gun and handed over to second accused and third accused instigated for firing deceased but rest of accused not took part in assaulting injured therefore except three accused none of accused can be convicted under Section 304 Part-I/149 IPC. - Even if offence is committed by only some of the members of unlawful assembly, but if same is committed in prosecution of common object of the entire assembly, then each of the member of unlawful assembly is liable for punishment of that offence. Further, even if a member of the unlawful assembly may not directly share common object of the assembly to commit said specific offence, yet he would be liable for the same principal offence, if he knew that such offence is likely to be committed in prosecution of the ultimate object of the assembly.
The common object or knowledge about the formation of the common object need not be in existence previous to the alleged incident constituting offence. The object can be formed at the one and same time during the continuation of the incident. Had it been a case that all the members of unlawful assembly i.e., accused, had seen that gun was brought, it was handed over to one of the accused and the third one instigated for firing the deceased, then if they continued to remain in the assembly and further participated by assaulting injured with wooden log, sword etc. then definitely, it can be said that they continued to remain member of the unlawful assembly in prosecution of the common object or atleast they knew that the offence of commission of culpable homicide would be committed by some of the members of the unlawful assembly.
What has come during the trial is that the act of bringing gun and shooting the deceased has occurred as last of the incident. In that view of the matter, it cannot be said that rest of the members of the unlawful assembly i.e., rest of the accused knew that after the abuses were given and after they themselves took part in assaulting the injured, the offence of commission of culpable homicide would be committed at the fag end. Considering all these facts on record, except accused who brought gun and second accused to whom it was handed over and third accused who instigated for firing deceased, none of accused can be convicted for the offence punishable under Section 304 Part I read with Section 149 of the Indian Penal Code.
All the ten appellants in present two appeals were charged of the commission of offences punishable under sections 143, 147, 148, 302 read with 149, 307 read with 149, 324 read with 149, 323 read with 149 and 504 read with 149 of the Indian Penal Code. Additionally, appellant No. 1 - Appasaheb in Criminal Appeal No.522 of 2012 i.e. original accused No. 1 was charged of the offence punishable under section 504 of Indian Penal Code; section 3 read with section 25 (1-B)(a) of the Arms Act, while appellant No. 1 in Criminal Appeal No.73 of 2012 i.e. original accused No.5 was charged of commission of offence punishable under section 4 read with section 25 (1-B) (a) of the Arms Act.
2. Learned Sessions Judge, however, convicted all appellant accused for the offences punishable under section 304 Part I read with section 149 of the Indian Penal Code. They were, however, sentenced differently by categorizing them in 3 categories.
3. Appellant Nos. 1 to 3 in Criminal Appeal No. 522 of 2012 (Original accused No. 1 to 3) were sentenced to suffer rigorous imprisonment for 10 years and to pay fine of Rs.3000/-, in default they were directed to suffer further simple imprisonment for six months. Accused Nos. 4 to 9 i.e. present appellant No.4 in Criminal Appeal No. 522 of 2012 along with appellants in Criminal Appeal No. 73 of 2012, were sentenced to suffer rigorous imprisonment for seven years and to pay fine of Rs.3000/- each, in default to suffer simple imprisonment for six months. Accused No.10 Ganesh i.e. appellant No.6 in Criminal Appeal No. 522 of 2012 was sentenced to suffer rigorous imprisonment for three years and to pay a fine of Rs.3000/-, in default to suffer simple imprisonment for six months. All the accused were further convicted for the offence punishable under section 324 read with section 149 of the Indian Penal Code and were sentences to suffer rigorous imprisonment for two years and to pay a tine of Rs.1000/- each, in default to suffer simple imprisonment for three months. No separate sentences were awarded for the offences punishable under section 323 read with 149, 143, 147 and 148 of the Indian Penal Code. Original accused No.1 Appasaheb i.e. appellant No. 1 in Criminal Appeal No. 522 of 2012 was further convicted for the offence punishable under section 3 read with 25 (1-B) (a) of Arms Act and was sentenced to suffer rigorous imprisonment for one year and to pay a fine of Rs.1000/- in default to suffer simple imprisonment for three months.
4. Further, though learned Sessions Judge did not record specific acquittal of the offence punishable under section 302 read with section 149 of the Indian Penal Code, the appreciation of evidence and the law on the subject made in the judgment would show that the learned Sessions Judge came to the conclusion that the bullet injury caused to the deceased at the hands of accused No. 1 - Appasaheb i.e. appellant No.1 in Criminal Appeal No.522 of 2012, in the facts of the case would not amount to culpable homicide amounting to murder, but would be an offence punishable under section 304 Part I read with section 149 of the Indian Penal Code.
5. Aggrieved by the said sentences all the original accused are before this Court. Original accused No. 1 to 4, 9 & 10 are appellants in Criminal Appeal No.522 of 2012, while rest of the accused i.e. accused Nos. 5 to 8 are the appellant in Criminal Appeal No.73 of 2012. In the circumstances, the appellants would be hereafter termed as 'accused' and would be described by their serial numbers as arrayed before learned Sessions Court.
6. The gist of FIR at Exhibit 101 filed by P.W.5 Vitthal is as under:-
7. P.W.5-Vitthal (complainant) and his two brothers including deceased Pandurang reside at village Gondi and are agriculturist. Present accused Nos. 1 to 9 are from the same village. Accused No.10-Raju is resident of nearby village i.e. Gondi (Budruk). The dispute between these three brothers on one hand and all these accused on the other hand was
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