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2021 Supreme(Bom) 64
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
PRASANNA B. VARALE, S.M. MODAK, JJ.
Chotelal Rambrij Paswan – Appellant
Versus
State of Maharashtra – Respondent
Criminal Appeal Nos. 724, 892, 893 of 2015
Decided On : 09-04-2021
Advocate Appeared:
For the Appellants : Ms. Payoshi Roy, Mr. Yug Mohit Chaudhry, Mr. Prosper D'Souza, Mrs. Nasreen Ayubi.
For the Respondent: Mrs. M.M. Deshmukh.
Point of Law: Criminal Law - Criminal Trial - Offence of Unlawful assembly and Murder - Appeal against conviction - There is no evidence of any dispute with deceased. Though the case of illicit relationship of PW-3 with several persons is projected, it could not be substantiated and its relation with the incident was not substantiated. Conviction modified.
Headnote:
Indian Penal Code, 1860 - Sections 304, 141, 302, 149, 147, 148, 323, 324, 34 - Unlawful assembly - Assault - Accused No. 1 entered house of PW-3 for asking her to reduce volume of radio - He misbehaved with her - Her brother-in-law PW-4 returned home - Accused Nos. 1 and 2 again came and they torn shirt of PW-4 - PW-2 and deceased returned home at midnight - PW-3 told these incidents to her husband PW-2 - Then husband went to accused No. 1 for questioning him - He was followed by PW-3, PW-4 and deceased - There scuffle took place - Accused No. 1/2 called and then accused Nos. 3 to 6 and others came with weapons - Prosecution witnesses and deceased was assaulted accused Nos. 1, 3 and 4 and one more non-chargesheeted accused and they took deceased to second spot - PW-4 took PWs. 2 and 3 to private hospital - He again went to spot but could not see deceased - On next day, PW-2 lodged complaint with Police Station after knowing about death - In such a way, criminal law was set in motion - And in all, 6 accused were chargesheeted - Court is concerned with correctness of judgment of conviction of these three appellants for offences punishable under Sections 147, 148, 323, 324 read with Section 149 and Section 302 read with Section 34 of Indian Penal Code - Original accused Nos. 2, 5 and 6 have not preferred appeals - whether Court is justified in convicting three appellants (out of six accused) by taking recourse to provisions of Section 34 of Indian Penal Code - Whether trial Court was justified “in holding that accused Nos. 2, 5 and 6 have withdrawn themselves from the unlawful assembly when accused Nos. 1, 3 and 4 shifted deceased from the first spot to another spot - Whether evidence of three eye witnesses viz. PW-2, PW-3 and PW-4 is reliable and trustworthy - Whether PW-2 was justified in lodging F.I.R. on 08.11.2012 at 10.30 a.m. when the incident took place in intervening night of 07.11.2012 and 08.11.2012 after 12 midnight - Whether trial Court was right in convicting accused Nos. 1, 3 and 4 for offence punishable under Section 302 read with Section 34, when they were charged along with offences under Section 302 read with Section 149 of Indian Penal Code - Whether impugned judgment requires interference.
Finding of the Court:
Court think that chain of events has been established right from incident at spot till lodging of F.I.R. - Incident took place in intervening night after 12:00 o’clock - Both injured witnesses were admitted at 2:00 a.m. intimation was given to police by doctors at 10:00 a.m. and F.I.R. was lodged at 10:30 a.m. - So court do not find any deliberate delay - It is natural period - Accused Nos. 1, 3, 4 and Sonu Sahani first assaulted deceased and then took him to second spot - It is certainly a criminal act - Court agree with trial Court that accused Nos. 1, 3 and 4 shared a common intention and according to court, it is either to dispose of body or to beat him further - So PWs. 2, 3 and 4 specified about involvement of accused Nos. 1, 3 and 4 in causing death of deceased and in causing hurt and grievous hurt to PWs. 2 and 3 - Court is satisfied that all accused have formed an unlawful assembly and they have used force and violence with deadly weapons - Conviction of appellants is proper under Sections 147, 148 read with Section 149 of Indian Penal Code - But Court have got slightest of doubt as to whether offence under Section 302 of the Indian Penal Code is made out - Court is inclined to hold accused Nos. 1, 3 and 4 have committed an offence punishable under Section 304 Part II of the Indian Penal Code - Court say so because accused No. 1 even though present since beginning has not possessed any weapon - Accused Nos. 3 and 4 were not having any dispute with witnesses - On call, they immediately come to spot - Admittedly, there is no evidence of any dispute with deceased - Though case of illicit relationship of PW-3 with several persons is projected, it could not be substantiated and its relation with incident was not substantiated - That is why, Court intend to convict accused Nos. 1, 3 and 4 for offence punishable under Section 304 Part II of Indian Penal Code - Conviction of accused Nos. 1, 3 and 4 for offence punishable under Section 323 read with Section 149 for causing hurt to PW-4 is set aside - Conviction of appellants for offence punishable under Section 302 read with Section 34 of Indian Penal Code is modified, accused No. 1, accused No. 3 and accused No. 4 are convicted for offence punishable under Section 304 Part II read with Section 34 of Indian Penal Code for causing death.
Result: Appeals Partly Allowed.
JUDGMENT :
S.M. MODAK, J.
1. The issue involved in these appeals is “in respect of one incident when Court found that the incident is an act of unlawful assembly - then whether Court is justified in convicting three appellants (out of six accused) by taking recourse to the provisions of Section 34 of the Indian Penal Code?” The first incident refers to the assault on PWs. 2, 3 and 4 (being the outcome of an act of unlawful assembly) whereas second incident refers to shifting the deceased by these appellants from one spot to another. Whether trial Court was justified “in holding that accused Nos. 2, 5 and 6 have withdrawn themselves from the unlawful assembly when accused Nos. 1, 3 and 4 shifted deceased from the first spot to another spot?”
2. The above issues have arisen from the judgment dated 12.01.2015 delivered by the Court of Additional Sessions Judge, Vasai, District Thane in Sessions Case No. 44/2013. There were six accused persons put to trial. They were tried for committing offences punishable under Sections 147, 148, 323, 324, 302 read with Section 149 of the Indian Penal Code and in the alternative for the offences punishable under Sections 323, 324, 302 read with Section 34 of the Indian Penal Code. There were two injured witnesses viz. PW-2 Hiralal Balu Jaiswal (first informant) and his wife PW-3 Mantha Jaiswal. Whereas, name of the deceased is also Hiralal, but he is Hiralal Deepchand Jaiswal. The outcome of the impugned judgment is as follows:-
(a) Sections 147, 148 read with Section 149 of the Indian Penal Code. All accused Nos. 1 to 6 were convicted.
(b) Section 323 read with Section 149 of the Indian Penal Code. All accused Nos. 1 to 6 are convicted for causing simple hurt to PW-2 Hiralal, PW-3 Mantha and PW-4 Dharmendra.
(c) Section 324 read with section 149 of the Indian Penal Code. All accused are convicted for causing hurt to PW-2 Hiralal and PW-3 Mantha by dangerous weapons.
(d) Section 302 read with Section 34 of the Indian Penal Code. Accused Nos. 1, 3 and 4 are convicted (It means accused Nos. 2, 5 and 6 are acquitted).
3. In these three appeals, we are concerned with correctness of the judgment of conviction of these three appellants for the offences punishable under Sections 147, 148, 323, 324 read with Section 149 and Section 302 read with Section 34 of the Indian Penal Code. Original accused Nos. 2, 5 and 6 have not preferred appeals (as confirmed by learned Additional Public Prosecutor Smt. Deshmukh).
4. So, we have heard learned Advocate Ms. Payoshi Roy (Appeal No. 892/2015), learned Advocate Prosper D’souza (Appeal No. 893/2015), learned Advocate Mrs. Nasreen Ayubi (Appeal No. 724/2015) and heard learned APP Smt. Deshmukh and also perused the record and citations.
5. Summary of argument of all the learned Advocates for appellants is:
(a) Accused Nos. 3 and 4 are not concerned with the initial manhandling to PW-3 Mantha.
(b) No independent witnesses were examined though available.
(c) There is no evidence about what happened after deceased was taken from the first spot to the second spot.
(d) Delay in lodging the F.I.R. on the part of PW-2, PW-3 and PW-4.
(e) PW-4 Dharmendra is not injured in the fight and it creates doubt about his presence at the spot.
(f) There are material improvements in the evidence of PW-2, PW-3 and PW-4.
Whereas the learned A.P.P. supported the judgment.
6. The trial Court in the impugned judgment gave findings on various issues. They are:-
(a) absence of motive.
(b) probability in defence of the accused.
(c) not seizing any incriminating articles from the spot.
(d) blood stains on clothes of accused.
(e) delay in lodging of F.I.R.
(f) reliability of evidence of PW-2 Hiralal, PW-3 Mantha and PW-4 Dharmendra.
(g) effect of omissions and contradictions.
(h) formation of unlawful assembly while assaulting PW-2 and PW-3.
(i) cessation of unlawful assembly when deceased was taken to the second spo
