Important point
In the light of evidence, the common object of the unlawful assembly was to commit offences under Sections 323, 325 r/w 147/149 IPC and not under Section 302 r/w 149 IPC.

Judgment

Rajendra Babu, J.—22 persons were charged by the Court of Session, Solapur on the allegation that they formed an unlawful assembly with the common object of murdering Vithal and causing injury to Bhimrao, the brother of Vithal, and to cause damage to the ‘wada’ at Dambaldar. After trial most of them stood convicted under Section 302 read with Section 149 and Section 440 read with Section 149 of the Indian Penal Code (IPC) and accused Nos. 14, 18 and 19 were also charged and convicted under Section 323 read with Section 34 IPC for having caused simple hurt to Bhimrao. On appeal, the High Court acquitted some more accused but confirmed the conviction and sentence in regard to others. Accused Nos. 1 to 3 and 14 to 19 are in appeal before us. We are not concerned with other accused.

2. This Court granted leave by an order made on 18.7.1994 confining the same only to the question of the nature of offences disclosed. When the learned Senior Advocate Shri A.T.M. Rangaramanujam pitched his arguments a little too high to contend that the accused are entitled to plain acquittal, we made it clear to him that when the trial court and the High Court on the basis of evidence have come to a conclusion one way or the other of their involvement in the incident in respect of which they were charged, we cannot re-appreciate the matter and come to a different conclusion. Thereafter, he confined his arguments only to the question of offence arising out of proved facts.

3. After analysing the evidence of PWs 15 and 16 and other material on record, the learned Sessions Judge held that accused No. 1 went to the ‘vasti’ of Vithal along with some of the accused and was following Vithal upto his ‘wada’; that when Vithal and Bhimrao were inside he charged on the servant to scare him away as he was pleading to protect the members of his master’s family. He held that he shared the common object to murder Vithal, though the circumstances in the case may not suggest that he was sharing the common object to murder Bhimrao but to cause him hurt.

4. As regards accused No. 2, from the testimony of PW 16 and other evidence on record, the learned Judge held that when the deceased-Vithal arrived at the Bus Stand after release on bail, he was seen following Vithal; that he went inside the ‘wada’ scaling the wall; that his conduct certainly suggested that he was taking active part as a member of the unlawful assembly to find out where the victims were hiding and how to reach them, as otherwise there was no reason to scale the wall and go inside the ‘wada’.

5. As regards accused No. 3, the learned Judge on analysing evidence of PWs 12 and 16 along with other material on record held that he was present at the S.T. stand and he was following Vithal near the ‘wada’ and when Vithal and Bhimrao were inside, he pelted stones at Suman. These circumstances were sufficient to hold that he was the member of the unlawful assembly and was sharing its common object except in respect of the injury caused to Bhimrao.

6. As regards accused Nos. 14, 18 and 19, the learned Judge relied on evidence of PWs 9 and 10 for causing injuries to Bhimrao and from evidence of PWs 14 and 16 held that accused Nos. 18 and 19 were at the S.T. bus stand and accused No. 14 joined them in search of Vithal. They came following Vithal, went inside the ‘wada’, beat Bhimrao after taking him outside from where he was hiding. These acts prove their sharing of the common object to murder Vithal and their common intention to assault Bhimrao. The learned Sessions Judge also took the view that the target of attack was not Bhimrao but Vithal inasmuch as Bhimrao happened to be accidentally with Vithal and accused Nos. 14, 18 and 19 beat him inside the ‘wada’. This act of theirs was not in furtherance of the common object of the assembly, but this was in furtherance of the common intention to do so in order to put Bhimrao in fear from coming ahead to save his brother Vithal. Therefore, as regar