BHIMA @ BHIMARAO SIDA KAMBLE AND ORS.

A v.

STATE OF MAHARASHTRA

AUGUST 27, 2002

[S. RAJENDRA BABU AND P. VENKATAR.AMA REDDI, JJ.] B

Penal Code, 1860; Sections 147, 149, 302, 323, 325 and 440:

Unlawful assembly-Charges of murder and causing injury-Nature of offence committed-large number of accused gathered armed with sticks and C pelting stones, resulting in death of one and injury to another-Held, under the circumstances, reasonable inference drawn could be that the common object of the unlawful assembly was to commit offences under Sections 323 and 325 read with Section 1471149 and not under Section 302 read with Section 149.

22 persons were charged for offence of formation of unlawful assembly with the common object of committing murder of the victim/ deceased, causing injury to another victim and damaging property. Trial Court convicted most of these accused under Section 302 read with Section

149 and Section 440 read with Section 149 IPC and accused Nos.14, 18 E and 19 were also convicted under Section 323 read with Section 34 IPC.

High Court acquitted some of the accused but confirmed the conviction against others. Hence this appeal filed by accused Nos. 1 to 3, 14 and 29, in which Court granted leave confining it only to the question of the nature of offence disclosed.

Partly allowing the appeal, the Court

HELD: 1. When a large number of persons were armed only with sticks or pelted stones which they could find anywhere either near the fields

or on their way and it was not established as to who specifically attacked whom, it cannot be said that the intention was to cause death. It is more G probable that the intention was to give hard beating only. Even if it is presumed that the deceased was pursued by the accused persons right upto the place of incident, the object of the mobwas to teach him a stern lesson as he was a bully in the village. In the circumstances and in the light of evidence, reasonable inference to be drawn is that the common object was 693 H

A to commit offences under Section 323 and Section 325 read with Section

1471149 IPC and not under Section 302 read with Section 149 IPC.

[696-D-F)

2. The trial Court as well as High Court appears to have lost sight of the crucial aspects. These accused are acquitted of the charges under B Section 302 read with Section 149 IPC, while they stand convicted, as rightly held by the trial Court, under Section 147, Section 323 and Section 325 IPC. The sentences which they have already undergone should be treated as sufficient punishment and they may be released forthwith.

(696-F, G)

CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 418 of 1994.

From the Judgment and Order dated 24/25-6-93 of the Bombay High Court in Crl. Appeal No. l 036 of 1980

D A. T.M. Rangaramanujam, Mrs. Gouri Karuna Das, Mrs. Archana Singh

and Ms. Rani Jethmalani for the Appellants.

V.B. Joshi, Naresh Kumar and V.N. Raghupathy for the Respondent.

The Judgment of the Court was delivered by

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 F 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 C_ourt 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.

G 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 H of evidence have come to a conclusion one way or the other of their

BHIMA@BHIMARAO SIDA KAMBLE v. STATE [S. RAIENDRA BABU, l.] 695

involvement in the incident in respect of which they were charged, we cannot A 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.

After analysing the evidence of PWs 15 and 16 and other material on record the learned Sessions Judge held that accused No. I went to the 'vasti' B of Vithal along with some of the accused 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 C common object to murder Bhimrao but to cause him hurt.

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 D 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 'wade'.

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 E at the S. T. stand and he was following Vithal near the 'wada' and when V ithal 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.

As regards accused Nos. 14, 18 and 19, the learned Judge relied on evidence of PWs 9 and I 0 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 ofVithal. They came following Vithal, went inside the 'wada' beat Bhimrao after taking him outside from G 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 H

A 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 regards accused Nos. 14, 18 and 19, the learned Judge concluded that there is 'common object' -

in respect of Vithal and 'common intention' in respect of Bhimrao.

In. this case, the learned Sessions Judge noticed that there was no specific B evidence as to the nature of weapons with which they were armed. What was proved in the whole case was that accused Nos. 14, 18 and 19 personally dealt blows with sticks and the allegation that accused No. 3 wielded axe was not proved. There was no evidence to show that at the time of incident they were armed with axes. Axes produced by accused Nos. 1,2, 18 and 19 were C not shown to have been used in causing hurt. On that basis, the learned Sessions Judge held that accused Nos. 14, 18 and 19 cannot be found to be the members of unlawful assembly armed with deadly weapons.

In appeal, the High Court also examined the evidence with reference to each one of the appellants and affirmed the findings recorded by the trial D court.

When a large number of persons were armed only with sticks of pelted stones which they could find anywhere either near the fields or on their way and it was not established as to who specifically attacked whom, it is not clear as to whether the intention was to cause death. It is more probable that E the intention was to give hard beating only. Even if we accept the case that the deceased-Vithal was pursued right upto the 'wada' the object of the mob was to teach him a stem lesson who is said to be a bully in the village. In the circumstances and in the light of evidence, we must hold that the reasonable inference to be drawn is' that the common object was to commit offences under Section 323 and. Section 325 read w.it~1 Section 147/149 IPC and not F uner section 302 read with Section 149 IPC. The trial court as well as High Court appear to have lost sight of crucial aspects~

Therefore, we think thatthese accused who are under appeal. before us .deserve to be acquitted .of tlie charges under Section 302 read with Section

149 IPC, while they stand convicted anightly held by the trial co'!rt, under G Section 147, Section 323 and Section 325 IPC. The sentences which they have already undergone should be treatec!. as sufficient punishment an~ they may be released forthwith if they are still in jail. Orders made by the trial court as confirmed by the High Court will stand modified accordingly.

The appeal is allowed limited to the above extent.

H S.K.S.

Appeal allowed.