1 Revn 519-09.sxw IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL REVISION APPLICATION NO. 519 OF 2009 Shyam Rajput and others. ... Applicants Vs. The State of Maharashtra. ... Respondents Mr. Chaitanya Pendse, Advocate for Applicants. Mr. S.A.Shaikh, APP for Respondent-State. CORAM : MRS. MRIDULA BHATKAR, J. DATE : 11th September, 2009. JUDGMENT 1. By consent finally decided at the stage of admission. 2. The Revision Application is filed by the Applicants – Accused against the order passed by 2nd Ad-hoc Additional Sessions Judge, Greater Mumbai rejecting the application of discharge under Section 227 of the Criminal Procedure Code. 3. These Accused are charge-sheeted for the offences punishable under Sections 143, 144, 148, 149, 452, 324, 326, 307 read with 34 of the Indian Penal Code as all these applicants/ accused and co-accused in furtherance of their common intention, have assembled together unlawfully and caused simple and grievous injuries to 5-6 persons with deadly weapons like knife 2 Revn 519-09.sxw and scissors. The said order of rejection dated 17.08.2009, is under challenge. 4. On the previous date, after hearing this matter partly, by consent it was agreed that this matter would be decided finally at the time of admission as the short point is involved. 5. The learned counsel appearing for the Applicants has submitted that the police have connected two separate incidents together and the Applicants-Accused, though not involved in the incident of assault and injury to 5-6 persons with knife and scissors, are wrongly roped in. It was further submitted that one of the co-accused Ravi Shigvan and his brother Kishor Shigvan have attacked the injured persons and that is a different incident, which has taken place after the incident of assaulting Bhanudas Kolpe with kicks and hands. The incident of first assault by the group of people including the Applicants had taken place at 14:45 hrs and at that time, the Complainant Gopal Mishra and other persons intervened to pacify the situation so all the applicants along-with Ravi Shigvan fled away. Thereafter, co-accused Ravi Shigvan got angry due to intervention of the Complainant and other persons and at 15:30, he assaulted the Complainant, wife of 3 Revn 519-09.sxw Bhanudas Kolpe and other persons. When he assaulted wife of Bhanudas Kolpe, he was accompanied with his brother Kishor Shigvan. 6. The learned counsel appearing for the applicants has submitted that the act, which was committed by the applicants is unconnected with the incident of assault committed by co- accused Ravi Shigvan and his brother and therefore, these applicants cannot be charged and tried for the offence under Section 307 as mentioned in the FIR. Further, it was submitted that these two incidents cannot be considered as one crime committed in the course of one transaction and so cannot be charge-sheeted together. 7. Per contra, the Learned APP argued that these incidents have occurred in the chain of one offence and the applicants-accused, being the members of unlawful assembly, having common intention, have committed these two offences in the course of one transaction. Learned APP has submitted that the motive of assaulting Bhanudas Kolpe and injuring all other 5-6 persons was the one common act of Ravi Shigvan, Kishor Shigvan and the Applicants-accused. The police have recorded 4 Revn 519-09.sxw statements of the injured, who are the eye witnesses to the incidents. The weapons, which were used at the time of commitment of the offence are also recovered by the police. The names of all these applicants-accused are appearing in the FIR and also in the statement of Bhanudas Kolpe. The learned APP further submitted that the applicants and co-accused being the members of the unlawful assembly and for which the police have collected the sufficient evidence are not entitled to discharge and the order passed by the learned Sessions Judge is just and legal. 8. In this matter, interestingly it is an admitted position that two incidents have taken place within a span of an hour in the same vicinity and the motive behind these two incidents was more or less same. While assaulting Bhanudas Kolpe no weapon was used, but the assault was with hands and kicks. In the second incident the injured were attacked with deadly weapons. The submissions of learned Prosecutor that the names of all these applicants-accused are appearing in the statements of the witnesses as they had participated in the assault of Bhanudas Kolpe are also correct and are not disputed by the counsel of the Applicants-accused. On the background, while deciding this discharge application, the following points are formulated and are 5 Revn 519-09.sxw to be answered ; a) Whether, these two incidents can be considered as one continuous incident, taken place in the course of one transaction ? b) Whether, there is prima facie, any material to show that the applicants-accused have committed any cognizable offence, so that they all can be charge- sheeted under one report filed by police under Section 173 of Criminal Procedure Code ? 9. The first act of assault was committed by the applicants-accused in group and as they were more than 5, Section 149 was rightly attracted. More offences if committed in one course of transaction then all the accused can be charge- sheeted together. One offence committed in parts if forms one continuous offence then one charge-sheet can be filed. However, this offence of the first assault cannot be connected with the second assault. It is not only because of the time gap of one hour, but because of the manner in which the second assault was committed. The second assault committed by one or two members of that group is undoubtedly offshoot of the first assault, yet is not an act in continuity, though apparently it gives such impression because the first act was committed by the group in which Ravi and Kishor were the members. After the 6 Revn 519-09.sxw intervention of the complainant or other persons, they all fled away and they did not join the subsequent act of assault. This shows that though unlawful assembly was formed at the time of the commission of the first act of assault, the unlawful assembly did not continue after members dispersed. There is no evidence to show that the applicants-accused have participated in the second assault. 10. To constitute the unlawful assembly the object should be common, means it should be one, same and shared. It cannot be said that at the relevant time of the second assault, the object was common. In the absence of common object, constructive liability as contemplated under Section 149 of the Indian Penal Code cannot be saddled on other members of the group, who have withdrawn themselves from earlier unlawful assembly. 11. All the accused are prosecuted under one charge- sheet. Applicants-accused are entitled to discharge from the offence punishable under Sections 143, 144, 148, 452, 324, 326, 304 read with 34 of the Indian Penal Code. The only Section remains is 149. For any other cognizable offence, the accused are not charged, so for an offence simplicitor under Section 149 the 7 Revn 519-09.sxw accused cannot be charge-sheeted. 12. The police statement and the FIR disclose that the applicants-accused have committed offence of assault as the first incident for which Section 323 of Indian Penal Code can be attracted. However, section 323 is non-cognizable offence and therefore, Section 149 read with Section 323 of the Indian Penal Code being non-cognizable, these applicants-accused cannot be charge-sheeted under this police report under Section 173 of the Criminal Procedure Code. Hence the following order: i. The impugned order dated 17.8.2009 is quashed and set aide and the applicants /accused are discharged in respect of Sessions case No.336 of 2009 pending before the Sessions Court, Mumbai. ii. The Police are at liberty to take necessary action under Section 149 of IPC or any other relevant Sections in accordance with law. iii. The Revision application is disposed of accordingly. [ MRIDULA BHATKAR, J jpc/-