No doubt, in the scuffle that took place, one blow came to be inflicted on the head of Ashok which injury proved fatal. However, this by itself cannot be the reason to conclude that there was any intention to commit his murder. = We, thus, hold that there was no preconceived common object of eliminating the members of Deshmukh family and group and the assembly was not acquired with any deadly weapons either, as held by the High Court. Even the High Court has not pointed out any such evidence. These findings are hereby set aside. The conviction of the appellants under Section 302 IPC is converted into Section 304-II IPC for which the appellants are sentenced for rigorous imprisonment of seven years each. We were informed that all the appellants have already undergone sentence of seven years or more. If that is correct, these appellants shall be released forthwith, if not required in any other case.

NON-REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 1305 OF 2011

|VIJAY PANDURANG THAKRE & ORS.              |…..APPELLANT(S)            |

|VERSUS                                     |                             |

|STATE OF MAHARASHTRA                       |…..RESPONDENT(S)           |

W I T H

CRIMINAL APPEAL NO. 1300 OF 2011

CRIMINAL APPEAL NOS. 1302-1304 OF 2011

CRIMINAL APPEAL NO. 1306 OF 2011

CRIMINAL APPEAL NO. 1307 OF 2011

AND

CRIMINAL APPEAL NO. 1308 OF 2011

J U D G M E N T

A.K. SIKRI, J.

In all these appeals, there are  21  number  of  appellants

who are all convicted for the offences punishable under Sections  302,  307,

324, 336, 427, 506-II, 148 read with Section 149 of the Indian  Penal  Code,

1860 (for short the ‘IPC’) by the Additional  Sessions  Judge,  Nagpur  vide

his judgment dated 05.02.2010, which is substantially  upheld  by  the  High

Court vide impugned judgment dated 24.01.2011.  Judgment of the High   Court

in the criminal appeals, that were filed by  the  appellants,   allowed  the

appeals  in part thereby altering  the  charge  under  Section  307  IPC  to

Section 324 of the IPC.  However, rest of the  conviction  recorded  by  the

trial court has been maintained.

2.    The appellants are the residents of Village Badegaon,  Taluka  Saoner,

Nagpur.  Victims of the said crime are also residents of the  same  village.

Persons belonging to the victim’s group (known as Deshmukh  Group)  as  well

as those who are accused persons (known as  Choudhary  Group)  are  the  two

rival political groups active  in  the  village  politics.   On  24.10.2002,

elections for Village Panchayat, Badegaon took place.  The  appellants  were

supporting Samata Party and four of their  candidates  got  elected  in  the

said  elections.   On  the  other  hand,  Deshmukh  Group  was  representing

Shetkari Shet Majoor Party and five of their candidates were elected in  the

said elections.  Shetkari Shet Majoor Party was led by  Vijay  Deshmukh  and

Samata Party was led by Bhujangrao Choudhary.  Two days after the  elections

i.e. on 26.10.2002, the incident in question took place.

As per the prosecution, members of the group of accused  persons  hatched  a

conspiracy to eliminate  leading  members  of  Deshmukh  family  for  taking

revenge of their defeat in Gram Panchayat election  and  in  furtherance  of

their common object, committed the murder of Ashok Deshmukh,  and  attempted

to  commit  murder  of  Vilas  Deshmukh,  Vivek  Deshmukh  (PW-9  and   PW-8

respectively), assaulted Dinesh Deshmukh, Arun Deshmukh, Prafulla  Deshmukh,

Sau. Kalpana Deshmukh and Smt. Kausabai Choudhary (PW-6, PW-7, PW-13,  PW-10

and  PW-11 respectively), pelted stones on the houses of Deorao Nakhale  and

Bhimrao Nakhale (PW-12 and PW-16 respectively) and damaged  the  scooter  of

PW-4  Sushil  Deshmukh.   The  incident  was  witnessed  by  seven   injured

witnesses and four eyewitnesses.

The prosecution examined, altogether, 26 witnesses.  Out of these, PW-6, PW-

7, PW-8, PW-9, PW-10, PW-11 and PW-13 were the injured eyewitnesses and  PW-

2, PW-4, PW-5 and PW-18 were eyewitnesses who did not suffer any  injury  in

the incident.  Other witnesses are the doctors  (who  examined  the  injured

persons  and  conducted  postmortem  of  the   deceased   Ashok   Deshmukh),

Investigating Officer, Executive Magistrate, Panch and other witnesses.   On

the other hand, defence examined 16 witnesses in all.

It may be pointed out  that  there  was  no  dispute  that  death  of  Ashok

Deshmukh was homicidal in nature and the testimony of the  doctors  on  this

account is not under challenge.  However, in respect of those  who  suffered

injuries, dispute was as to whether injuries were such  that  there  was  an

attempt to murder these persons.  The  trial  court  convicted  the  accused

persons under Section 307 IPC accepting  the  version  of  the  prosecution.

However,  the  High  Court  in  the  impugned  judgment  has  converted  the

conviction from Section 307 IPC to Section  324  IPC.   Since,  neither  the

State nor the victim has challenged this part, the acquittal  of  appellants

under Section 307 IPC has attained finality.

We may also  mention  at  this  stage  itself  that  there  was  no  serious

challenge by the learned counsel, who appeared for the  appellants,  at  the

time of arguments to the conviction of  the  appellants  under  Section  324

IPC.  Even otherwise we find that  the  conviction  under  Section  324  IPC

warrants to be sustained.  In view thereof,  the  only  question  is  as  to

whether appellants could be convicted  of  offence  under  Section  302  IPC

along with Section 148 read with Section 149  IPC.   Discussion  hereinafter

would be focussed on this aspect.

It may be mentioned that in all 30 persons were charged  under  the  various

Sections mentioned  above.   As  pointed  out  above,  after  analysing  the

evidence of the prosecution as  well  as  that  of  the  defence  and  other

material  produced  on  record,  the  learned  Additional   Sessions   Judge

convicted accused Nos. 1, 2, 4, 6, 9, 10, 12, 13, 16 to 25 and 28 to 30  for

various offences giving different sentence ranging from  one  month  to  six

months under Sections 324,  336,  427,  506-II  and  148  IPC.   Insofar  as

conviction under Section  307  read  with  Section  149  IPC  is  concerned,

rigorous imprisonment for five years was awarded and for offence  punishable

under  Section  302  read  with  Section  149  IPC,  life  imprisonment  was

inflicted upon  the  aforesaid  convicted  persons.  The  remaining  accused

persons were acquitted.  Findings of the trial court are summarised  by  the

High Court in the impugned judgment in the following manner:

(a)   Accused No. 4 Pandhari N.  Khandal,  Accused  No.  10  Vijay  P.

Thakre, Accused No.13 Kailas Bhoyar, Accused No. 14  Ashok  S.  Pimparamule,

Accused No. 18 Narayan Kothe, Accused No. 19 Baban Karale,  Accused  No.  20

Marotrao Gawande, Accused    No. 23 Chandrashekhar Khorgade and Accused  No.

30 Dilip S. Chachane were identified to  be  present  and  participating  in

various acts of assault.

(b)   The accused possessed, and have used  deadly  weapons,  such  as

big size sticks and medium size sticks (Ubharis and Zodpas etc.)

(c)   The accused constituted unlawful assembly.

(d)   The witnesses depose that the members of the  unlawful  assembly

of accused persons proclaiming  that  they  wanted  to  eliminate  the  main

persons from Deshmukh family, because of the acrimony which they had due  to

defeat in the Panchayat election.

(e)   Aspects, namely motive and intention, both were proved.

(f)   The testimonies of the witnesses  were  adequate  to  prove  the

commission of offence charged and stood  to  the  test  of  trustworthiness.

The omissions relied upon by the defence were neither crucial  or  material,

nor were omissions at all.

State as well as the complainant had filed the  appeals  against  those  who

were acquitted, which were dismissed by the  High  Court.   The  High  Court

noted that defence of the appellants was that it was  a  case  of  stampede,

though no attempt was made to explain as to  how  the  stampede  could  have

occurred.   The  fact  of  homicidal  death  and  other  injuries  were  not

disputed.  The enmity between the parties and commotion  were  also  not  in

dispute.  Therefore, one has to  proceed  on  the  basis  that  incident  in

question took place wherein certain persons  belonging  to  Choudhary  Group

attacked the persons of Deshmukh  family.   The  most  vital  question  that

becomes important in these circumstances is as to whether unlawful  assembly

had been formed by the convicted  persons  with  common  object  of  causing

death of Ashok who lost his life in the said attack.   The  High  Court  has

taken note of the injuries as revealed in the postmortem  report  which  the

deceased suffered and noted that the cause of  death  is  one  head  injury.

The High Court further summarised his conclusion in para 50 of the  judgment

which reads as under:

“50.  The fact that the evidence brought by  the  prosecution,  tested

from any point of view  and  permutations  and  combinations  leads  to  the

conclusion that:-

(1)  It was an unlawful assembly.

(2)  It gathered  after  pre-conceived  common  object  of  eliminating  the

members of Deshmukh family and group.

(3)  The assembly was equipped with deadly weapons, such as Ubharis,  Zodpas

etc.

(4)  Unlawful assembly dealt a fatal assault on Ashok.

(5)  Unlawful assembly dealt a violent and brutal assault on  other  injured

witnesses, namely PWs 6, 7, 8, 9, 10,  11  and  13  (Dinesh  Deshmukh,  Arun

Bhaurao Deshmukh, Vivek Nanaji Deshmukh, Vilas Bhauraoji  Deshmukh,  Kalpana

Vijayrao Deshmukh, Kausalyabai A. Chaudhari  and  Praful  Uttamrao  Deshmukh

respectively), and did stone pelting and damaged the houses of PW 12  Deorao

Nakhale and PW 16 Bhimrao Nakhale, and damaged the scooter of  PW  4  Sushil

Deshmukh.”

Questioning the propriety of the aforesaid  approach  adopted  by  the  High

Court, Mr. Tulsi,  learned  senior  counsel  appearing  in  Criminal  Appeal

No.1300 of 2011 which is filed by  four  appellants,  submitted  that  large

number of persons were implicated as  accused  persons  and  the  manner  in

which the  incident  took  place,  it  was  difficult  for  the  prosecution

witnesses to  identify  as  many  as  30  persons  and  the  possibility  of

implicating even those who were not present at the  time  of  the  incident,

cannot be ruled out, particularly when there was political  rivalry  between

the two groups.  He further submitted  that  motive  for  false  implication

gets supported by the fact that in the elections which took place  two  days

before the incident, five persons from Deshmukh Group were  elected  whereas

from Choudhary Group, lesser  number  of  persons  i.e.  four  persons  were

elected.  It was submitted that Deshmukh Group  was  more  dominating  group

and in these circumstances, there was no question  of  taking  any  revenge.

He also submitted that there was a delay in  lodging  the  FIR  which  could

further lend credence to the  defence  of  the  appellants  that  many  were

falsely roped in.  Furthermore, there was no evidence of any  conspiracy  or

common object and, thus, the ingredients of provision  of  Section  149  IPC

could not be taken and the appellants were wrongly convicted under the  said

provision.  In nutshell,  his  submission  was  fourfold  on  the  following

aspects:

(1)   The entire evidence in the case leaves a room for  doubt  with  regard

to the identification of accused persons.  This is so, because  of  a  large

number of accused persons (30) and even 10-15 more alleged to be present  at

the  time  of  the  incident.   Added  to  this  is  the  fact  that   their

identification is alleged to have taken  place  in  the  moonlight,  no  TIP

thereafter, and identification only in court.

(2)   Delay  in  lodging  FIR,  utilized  for  deliberations  about  how  to

implicate all political opponents.

(3)   There is a clear motive for false implication on  account  of  rivalry

arising out of Panchayat elections in which the accused party had  won  four

seats and complainant party won five out of nine  seats.   The  complainant,

thus, in the absence of any evidence of conspiracy had all  the  opportunity

for false implication.

(4)   In the absence of any evidence of conspiracy,  the  accused  at  worst

can be held responsible for their individual acts and  others  against  whom

there are no specific allegations cannot be held liable as they may be  mere

spectators, the incident having been taken place on a public road.

In support  of  the  aforesaid  submissions,  learned  counsel  referred  to

various  case  laws  as  well.   Other  counsel  appearing   for   remaining

appellants adopted the submissions of Mr. Tulsi.

Learned  counsel  for  the  State,  on  the  other  hand,  relied  upon  the

discussion contained in the judgments of the courts below in support of  the

prosecution case with  the  submission  that  the  appellants  were  rightly

convicted and there was no reason to interfere with the same.

After going through the evidence in detail, we are of the opinion  that  the

prosecution evidence is not sufficient to conclude that any  conspiracy  was

hatched by the appellants with common object to cause the death of Ashok  or

the appellants  are  charged  members  of  the  other  group  with  such  an

objective.  Even as per the prosecution,  the  convicted  persons  were  not

carrying any deadly weapons.  They were armed with Ubharis which  are  small

sticks and Ubharis used by the farmers for disciplining the  bullocks.  This

itself would be sufficient to negate the prosecution version that there  was

a conspiracy and common object to cause fatal harm to  the  members  of  the

opposite group.   At  the  most,  the  appellants  wanted  to  inflict  some

physical harm to the members of the Deshmukh family in order to ‘teach  them

a lesson’. Significantly, while discussing  the  charge  under  Section  307

IPC, the High Court itself has gone by the nature of injuries  inflicted  on

other persons and concluded that there was no intention to  cause  death  of

any of those who got injured at the time of  the  incident.  However,  while

dealing with the case of  death  of  Ashok,  the  High  Court  went  by  the

injuries on his person  and  on  that  basis  concluded  that  there  was  a

premeditative motive on the part of the appellants to  murder  him.   Except

the  above,  there  is  no  clear  evidence  of  any  conspiracy  or  common

objective.  In these circumstances, the accused persons, at worst, could  be

held responsible for their individual acts.

Section 149 IPC reads as under:

“149. Every member of unlawful  assembly  guilty  of  offence  committed  in

prosecution of common object.—If an offence is committed by  any  member  of

an unlawful assembly in prosecution of the common object of  that  assembly,

or such as the members of that assembly knew to be likely  to  be  committed

in prosecution of that  object,  every  person  who,  at  the  time  of  the

committing of that offence, is a member of the same assembly, is  guilty  of

that offence.”

As is clear from the plain language, in order to attract  the  provision  of

the Section, following ingredients are to be essentially established.

(i)   There must be an unlawful assembly.

(ii)  Commission of an offence by any member of an unlawful assembly.

(iii) Such offence must have been committed in  prosecution  of  the  common

object of the assembly; or must be such as the members of the assembly  knew

to be likely to be committed.

If these three elements are satisfied, then  only  a  conviction

under Section 149, I.P.C., may be substantiated, and  not  otherwise.   None

of the Sections 147, 148 and 149 applies to a person who is  merely  present

in any unlawful assembly, unless he actively participates in the rioting  or

does some overt act with the necessary  criminal  intention  or  shares  the

common object of the unlawful assembly.

In the facts of the  present  case,  we  find  that  common  object  of  the

assembly, even if it is presumed that there was an  unlawful  assembly,  has

not been proved.  The expression  ‘in  prosecution  of  the  common  object’

occurring in this Section postulates that the act must  be  one  which  have

been done with a view to accomplish the  common  object  attributed  to  the

members of the  unlawful  assembly.   This  expression  is  to  be  strictly

construed as equivalent to in order to attain common  object.   It  must  be

immediately connected with common object by virtue of nature of object.   In

the instant case, even the evidence is not laid on this aspect.  As  pointed

out above, the courts below were influenced by the  fact  that  one  of  the

injuries on the person of Ashok was on his head which became  the  cause  of

death and from this, common object is inferred.

In Mukteshwar Rai v. State of Bihar[1], the accused persons were alleged  to

have formed an unlawful assembly, gathered in a village and set some  houses

on fire and ransacked.  Two persons died as they got  burnt  and  two  could

not be traced.  This Court agreed with the finding of the High Court  as  to

formation of the unlawful assembly.  But as to the finding that  the  common

object of the unlawful  assembly  was  to  commit  murder  took  somewhat  a

different view and observed:

“The specific overt acts attributed to A-1 and five others who are  said  to

have actively participated in setting  the  fire  and  thrown  some  of  the

victims into the fire stand disbelieved.  It may also be noted that none  of

the P.Ws. Is injured and we find from the judgment of the  High  Court  that

none of the witnesses say that any one of these appellants were armed.   The

learned Judge has extracted the incriminating part in each of the  witnesses

against these appellants.  It stated that these accused were  identified  by

those respective witnesses mentioned therein in discussing the case  against

each of th accused.  There is nowhere any mention  that  any  one  of  these

appellants were armed.  In such a situation the question  is  whether  these

appellants also had a common object  of  committing  the  murder.   We  have

given earnest consideration to this aspect. Taking a general picture of  the

case and after a close scrutiny of the evidence we  find  that  two  persons

were charred to death.  This must have been the result of  setting  fire  to

those houses.  With regards the other  two  missing  persons  it  cannot  be

concluded that they were murdered in the absence of any  iota  of  evidence.

Under these circumstances we find it extremely  difficult  to  hold  that  a

common object of the unlawful assembly was to commit murder.”

We would also like  to  quote  the  following  passage  from  Thakore  Dolji

Vanvirji & Ors. v. State of Gujarat[2]:

“3. …Now the question is whether all the  accused  would  constructively  be

liable for an offence of murder by virtue of Section 149 IPC. So far A-1  is

concerned, it is the consistent version of  all  the  eyewitnesses  that  he

dealt a fatal blow on the head with a sword and the medical  evidence  shows

that there was a fracture  of  skull  and  the  blow  must  have  been  very

forceful because even the brain was  injured.  Therefore,  he  was  directly

responsible for the death of the deceased and the  High  Court  has  rightly

convicted him under Section 302 IPC. Now coming to the rest of the  accused,

all the eyewitnesses have made an omnibus allegation against them.  Even  A-

2, according to the eyewitnesses, gave only one blow and that the  remaining

accused gave stick blows. All these  injuries  were  not  serious  and  were

simple. The injury attributed to A-2 was on the cheek  and  the  doctor  did

not say that it caused any damage. So it must also be held to  be  a  simple

injury. Then we find only a bruise and an abrasion  on  the  right  arm  and

some bruises on the back. These injuries did  not  result  in  any  internal

injuries. There was not even a fracture of rib. Therefore they must also  be

simple injuries. It is only injury  No.  1  which  was  serious  and  proved

fatal. Therefore the question is whether under  these  circumstances  common

object of the unlawful assembly was to cause the death of the  deceased  and

whether every member of the unlawful assembly  shared  the  same?  No  doubt

Section 149 IPC is wide in its sweep but in fixing  the  membership  of  the

unlawful assembly and in inferring the common object, various  circumstances

also have to be taken into  consideration.  Having  regard  to  the  omnibus

allegation, we think it is not safe to convict every one  of  them  for  the

offence of murder by applying Section 149 IPC. On a careful  examination  of

the entire prosecution case and the surrounding circumstances, we think  the

common object of the unlawful assembly was only to cause grievous hurt.  But

A-1 acted in his own individual manner and caused one injury with the  sword

which proved fatal.”

No doubt, in the scuffle that took place, one blow came to be  inflicted  on

the head of Ashok which injury proved fatal. However, this by itself  cannot

be the reason to conclude  that  there  was  any  intention  to  commit  his

murder.  If 30 persons had attacked the members  of  Deshmukh  Group,  there

are no injuries on the vital parts of other persons who got injured  in  the

said episode.  Ashok also suffered only one injury on his head and no  other

injury is on vital part of his body.  Had there been  any  common  objective

to cause murder of the members of Deshmukh  Group,  there  would  have  been

many injuries on deceased Ashok as well as  other  injured  persons  on  the

vital parts of their body. On the contrary, it has come on record  that  the

injuries suffered by other persons are on their back  or  lower  limbs  i.e.

legs etc.

We, thus, hold that there was no preconceived common object  of  eliminating

the members of Deshmukh family and group and the assembly was  not  acquired

with any deadly weapons either, as held by the High Court.   Even  the  High

Court has not pointed out any such evidence.  These findings are hereby  set

aside.  The conviction of the appellants under Section 302 IPC is  converted

into Section 304-II IPC for which the appellants are sentenced for  rigorous

imprisonment of seven years each.  We were informed that all the  appellants

have already undergone  sentence  of  seven  years  or  more.   If  that  is

correct, these appellants shall be released forthwith, if  not  required  in

any other case.

Appeals are allowed partly in the aforesaid terms.

………………………………………J.

(A.K. SIKRI)

………………………………………J.

(R.K. AGRAWAL)

NEW DELHI;

FEBRUARY 02, 2017.

———————–

[1]   1992 Supp (1) SCC 727

[2]   1993 Supp (2) SCC 534

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