Bombay High Court
The State Of Maharashtra vs Keshavrao Dattrao Maske And ... on 19 September, 2016
Bench: A.V. Nirgude
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1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL APPEAL NO.622 OF 2012
1) Krishnarao S/o Gangarao Maske,
Age-75 years, Occu:Agriculture,
2) Kondbarao S/o Krushnarao Maske,
Age-29 years, Occu:Agriculture,
3) Baban @ Uttam S/o Keshavrao Maske,
Age-27 years, Occu:Agriculture,
All R/o- Paroda, Tq. & Dist-Hingoli.
...APPELLANTS
(Ori. Accused Nos.1, 4 & 9)
VERSUS
The State of Maharashtra
...RESPONDENT
...
Mr. Joydeep Chatterji Advocate for Appellants.
Mr. M.M. Nerlikar, A.P.P. for Respondent.
...
WITH
CRIMINAL APPEAL NO.625 OF 2012
1) Goprao S/o Marotrao Maske,
Age-36 years, Occu:Agriculture,
R/o-Hingoli, Tq. & Dist-Hingoli,
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2) Marotrao S/o Kanbarao Maske,
Age-74 years, Occu:Agriculture,
R/o-Parda, Tq.-Hingoli,
Dist-Hingoli,
3) Waman S/o Madhavrao Maske,
Age-44 years, Occu:Agriculture,
R/o-Parda, Tq. & Dist-Hingoli.
...APPELLANTS
(Ori. Accused Nos.8, 10 & 11)
VERSUS
The State of Maharashtra,ig
Through Police Inspector Basamba,
Tq. & Dist-Hingoli.
...RESPONDENT
...
Mr. M.A. Tandale Advocate for Appellants.
Mr. M.M. Nerlikar, A.P.P. for Respondent.
...
WITH
CRIMINAL APPLICATION NO.5160 OF 2013
IN
CRIMINAL APPEAL NO.625 OF 2012
Gopurao Marotrao Maske,
Age-40 years, Occu:Agriculture,
R/o-Parda, Tq. & Dist-Hingoli.
...APPLICANT
VERSUS
The State of Maharashtra.
...RESPONDENT
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...
Mr. M.A. Tandale Advocate for Applicant.
Mr. M.M. Nerlikar, A.P.P. for Respondent.
...
WITH
CRIMINAL APPEAL NO.633 OF 2012
1) Santosh S/o Laxman Bangar,
Age-24 years, Occu:Agri.,
R/o-Hingoli, Tq. & Dist-Hingoli,
2) Shriram S/o Laxman Bangar,
Age-26 years, Occu:Agri.,
R/o-Hingoli, Tq. & Dist-Hingoli
(At present are in jail).
...APPELLANTS
(Ori. Accused Nos.6 & 7)
VERSUS
The State of Maharashtra
...RESPONDENT
...
Mr. N.S. Ghanekar Advocate for Appellants.
Mr. M.M. Nerlikar, A.P.P. for Respondent.
...
WITH
CRIMINAL APPEAL NO.179 OF 2014
The State of Maharashtra,
Through Police Station, Basamba,
Tq-Hingoli, Dist-Hingoli.
...APPELLANT
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4
VERSUS
1) Keshavrao S/o Dattrao Maske,
Age-60 years, Occu:Agri.,
R/o-Parda, Tq.-Hingoli,
2) Santosh S/o Nanarao Maske,
Age-22 years, Occu:Agri.,
R/o-Parda, Tq.-Hingoli.
...RESPONDENTS
(Ori. Accused Nos.2 & 5)
...
Mr. M.M. Nerlikar, A.P.P. for Appellant.
Mr. Joydeep Chatterji Advocate appointed as
Amicus Curiae for Respondent Nos.1 and 2.
...
CORAM: A.V. NIRGUDE AND
A.I.S. CHEEMA, J.
DATE OF RESERVING JUDGMENT : 5TH JULY, 2016
DATE OF PRONOUNCING JUDGMENT: 19TH SEPTEMBER, 2016
JUDGMENT [PER A.I.S. CHEEMA, J.]:
1. I have had the advantage of going through
the Judgment being passed by Hon'ble Shri Justice
A.V. Nirgude. With deep respect, I have differing
views on certain aspects and thus proceed to pass
this Judgment.
2. For convenience of reference and to avoid
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reproducing names constantly, I am recording here
the names of the 11 accused against whom the
Sessions Trial No.15 of 2008 was instituted. Their
names are as under:-
1] Krishnarao s/o Gangrao Maske,
2] Keshavrao s/o Dattrao Maske,
3] Nanarao s/o Gangrao Maske,
4] Kondbarao s/o Krishnarao Maske,
5] Santosh s/o Nanarao Maske,
6] Santosh s/o Laxman Bangar,
7] Shriram s/o Laxman Bangar,
8] Goprao s/o Marotrao Maske,
9] Baban @ Uttam Keshavrao Maske,
10] Marotrao s/o Kanbarao Maske,
11] Waman s/o Madhavrao Maske.
3. Senior Judge Hon'ble Shri Justice A.V.
Nirgude has already referred to the introductory
parts of the matter and the Appeals which have
been carried. Reference is already been made to
the case of prosecution which was brought and the
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evidence regarding the incident as well as the
other relevant prosecution evidence like
postmortem, scene of occurrence etc. and
conviction of some accused as well as the
acquittal of some of the accused.
4. I will thus only make brief reference to
the case of prosecution and facts as are necessary
for the view I am taking.
5. The date of incident is 23rd February
2007. PW-2 Suresh Torkad, the nephew of deceased
victim Vithalappa filed F.I.R. dated 23rd February
2007 (Exhibit 82) on which crime was registered at
Basamba police station vide No.11 of 2007 at 2.30
p.m. for the incident which occurred in that
morning. In short, he mentioned in his F.I.R. that
the victim Vithalappa had purchased field property
in 1986 from Krishnarao Gangrao Maske to the
extent of 4 Acres and 8 Gunthas situated at
village Parda, Tq. and Dist-Hingoli. Around
Dasehara, accused No.1 Krishnarao started claiming
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that 20 Gunthas of his land has got included in
the purchase made by Vithalappa and land to that
extent should be returned by Vithalappa to accused
No.1 Krishnarao or else the turmeric crop sown in
that year would be taken away by him. Vithalappa
asked accused No.1 Kirshnarao to get Government
measurement done and if extra land is found, he
can take it. The disputes had thus arisen and
accused No.1 Krishnarao along with people from his
brotherhood had started making claims which were
being resisted. On 23rd February 2007 at about
11.00 a.m. accused Nos.1 to 5 and 8 to 11 (as
named in the F.I.R) entered the field of victim
Vithalappa (hereafter referred as "victim") and
having committed the encroachment, started
claiming that they will be taking the turmeric
crop and the victim should not take it and if
victim removes the same he would be killed. The
victim tried to explain to them but the accused
phone called at Hingoli and called for Bangar
group who reached there at about 12.00 - 12.30
noon by Jeep and motorcycle. They included accused
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No.6 Santosh Laxman Bangar and accused No.7
Shriram Laxman Bangar and one Sachin Bangar. Other
people also came with them and quarrel took place.
In that, accused No.8 Goprao Marotrao Maske hit
axe on the head of the victim who fell down and
immediately accused No.9 Baban Keshavrao Maske
followed the assault by hitting by stick on the
back of the victim. The victim became unconscious.
By that time police Jeep reached and the
complainant PW-2 Suresh Torkad alongwith Annapurna
Torkad (PW-4) picked up the victim and brought
him to the hospital where he was declared dead by
the doctor.
6. PW-16 A.P.I. Ramkrushna Chate
investigated the offence. The Inquest Panchnama
was recorded and postmortem of the victim was got
done. The Spot Panchnama was recorded which showed
that the accused persons had dropped their sticks
and axe on the spot and run away. One tractor
which turned turtle was lying on the spot as well
as Commander Jeep was there. Motorcycle was also
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found. The instruments of offence were seized and
Panchnama Exhibit 41 was carried out. Statements
of witnesses were recorded. The clothes of victim
were seized. Concerned articles and samples were
sent to C.A. and reports were obtained. 7 X 12
extract of the land was also obtained and proved
at Exhibit 117. Postmortem report Exhibit 91
showed that the victim died due to assault.
Charge-sheet came to be filed.
7. Charge was framed under Sections 147,
148, 302 read with 149, 447 of the Indian Penal
Code, 1860 ("I.P.C." in brief) as well as Section
37(1)(3) of the Bombay Police Act. Prosecution
brought on record evidence of 16 witnesses. The
defence of the accused as appearing from the
evidence is of denial. The trial Court after
considering the evidence, acquitted accused Nos.2,
3 and 5 of the offences with which they had been
charged. Accused Nos.1, 4, 6, 7, 8, 9, 10 and 11
came to be convicted under Section 302 read with
149 of I.P.C. and were directed to suffer
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imprisonment for life and fine of Rs.5000/- each
and in default to suffer rigorous imprisonment for
six months. Accused Nos.1, 4 and 6 to 11 were also
sentenced to suffer rigorous imprisonment for six
months for offence under Section 447 read with
Section 147 of I.P.C. and to pay fine of Rs.1000/-
each and in default to suffer rigorous
imprisonment for one month. These accused were
further convicted under Section 147 of I.P.C. and
sentenced to suffer rigorous imprisonment for
three months and to pay fine of Rs.500/- each and
in default to suffer rigorous imprisonment for one
month. These accused i.e. accused Nos.1, 4 and 6
to 11 have been further convicted under Section
148 of I.P.C. and sentenced to suffer rigorous
imprisonment for three months and to pay fine of
Rs.500/- each and in default to suffer rigorous
imprisonment for one month. Similar sentence under
Section 149 of I.P.C. has also been imposed
against these accused Nos.1, 4, 6 to 11.
8. Against the conviction of the accused
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persons, they have filed Appeals. The State filed
Criminal Appeal No.179 of 2014 against the
acquittal of accused Nos.2 and 5.
9. The impugned Judgment was passed on 15th
October 2012. In the record of the trial Court,
there is also copy of Judgment of same date in the
counter case having Sessions Trial No.9 of 2008
which was under Section 143, 147, 148, 307, 149,
325, 338, 427 read with 149 of I.P.C. as well as
under Section 37(1)(3) read with 135 of Bombay
Police Act against 7 accused. Copy of Judgment
shows PW-5 Gajanan Torkad as accused No.1, PW-13
Santosh Torkad as accused No.5 and PW-15 Raju
Torkad as accused No.6 in that matter.
10. Advocate Mr. Joydeep Chatterji for the
Appellants in Criminal Appeal No.622 of 2012 and
Amicus Curiae for Respondents in Criminal Appeal
No.179 of 2014 referred to the evidence and
submitted that the evidence on record of the
witnesses does not show acts on the part of the
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accused other than accused Nos.8 and 9 to be
sufficient enough so as to convict them for
offence of murder. The counsel was unable to
defend the blows given by accused No.9 Baban who
followed up on heels to hit the victim immediately
after the victim was hit by axe by accused No.8
Goprao. The counsel stated that the other accused
however deserved to be dealt with separately and
should not be saddled with having common object of
causing death of the victim.
11. The arguments of the learned counsel for
the Appellants in Criminal Appeal No.622 of 2012
were adopted by Advocate Mr. Ghanekar who appeared
for original accused Nos. 6 and 7 in Criminal
Appeal No.633 of 2012. The learned counsel stated
that there was absolutely no evidence against
original accused Nos.6 and 7 and trial Court
wrongly convicted them referring to the cross
case.
12. Advocate Mr. Tandale for the Appellants
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in Criminal Appeal No.625 of 2012 submitted that
original accused No.8 Goprao should be treated as
having given only one blow and did not repeat and
thus should not have been held guilty under
Section 302 of I.P.C.
13. The learned A.P.P. submitted that the
State examined 6 eye witnesses of the incident,
out of which some were even injured witnesses.
According to the A.P.P., the accused once entered
the field and then threatened and went back and
came armed with weapons. The threats given earlier
showed that the victim and his family were alarmed
because of which PW-3 Gangadharappa Torkad went to
the police station to seek help but in the
meanwhile the accused persons returned and carried
out the threat which had been given which was to
commit murder if they were obstructed from taking
crop from the portion of land they claimed to be
theirs. According to the A.P.P., the witnesses
partly turned hostile with reference to the
involvement of Bangar group but the over all
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evidence showed that conviction as awarded by the
trial Court against the accused who are convicted
needs to be maintained while the acquitted accused
Nos.2 and 5 also deserved to be convicted. The
A.P.P. submitted that when the evidence showed
that accused persons had collectively committed
encroachment in the field of the victim and
threatened and went back and came back armed with
weapons, it showed unlawful assembly and it was
not necessary to prove overt-act on the part of
each accused and it was not necessary that each
accused must be attributed overt-act so as to
convict. There was sufficient evidence on record
to show that the victim was not only owner of the
land but had even constructed a house and was
residing there and the accused persons were
aggressors. Thus, according to the A.P.P., the
conviction of the accused persons should not be
disturbed and accused Nos.2 and 5 should be
convicted.
14. The evidence of PW-2 Suresh Torkad read
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with F.I.R. shows that the land which was earlier
belonging to one Krishnarao Rangrao Maske was
purchased by the victim from Ratanbai (the wife
of Krishnarao) and one Kanbarao more than 10
years before the incident. It appears that accused
No.1 Krishnarao was claiming that his 20 Gunthas
land had been taken over by the victim in that
sale deed and he was claiming back the said
portion of the land. The evidence of PW-2 Suresh
is that from Dashehara of 2006 accused No.1,
accused No.2 (who had his land adjoining - see
para 13 of evidence of PW-5), accused No.4 and
accused Nos.9 and 10 (as named in evidence)
started claiming that the land which had been sold
to the victim, from that land 20 Gunthas was of
their share which had been merged and they were
claiming back the land. PW-2 Suresh deposed that
victim told accused persons that they should get
the land measured and if it is found that their
land has been merged, victim would return the same
to them. Regarding this dispute, there is
reference by other witnesses also and it does
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appear from the record that the accused persons
had been raising such dispute with the victim.
Thus, the motive.
15. Regarding the incident, the evidence of
PW-2 Suresh, nephew of the victim, is that the
incident initially started at about 10.00 - 11.00
a.m. He was present on the road near the land. His
evidence shows that at that time accused No.1,
accused No.2, accused Nos.8 to 11 came in the said
field where turmeric crop was sown. At that time
PW-3 Gangadharappa, PW-5 Gajanan - son of PW-3,
PW-14 Santosh Kishanappa Torkad and other persons
mentioned in the evidence were present. PW-2
Suresh deposed that these accused persons started
saying to the victim that this time they would
collect the crop of turmeric. They also threatened
that if the victim will take the crop, they will
kill him. The victim started convincing them but
they declared that they would kill him and went
back towards their house. PW-2 Suresh has further
deposed that at such time he had gone in the field
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of his uncle. At that time Bhagwanappa,
Subhashappa and PW-3 Gangadharappa decided that
they will inform the police and they proceeded to
the police station. Evidence of PW-2 Suresh is
that thereupon the "aforesaid" accused persons
came back with axe and sticks and started giving
abuses. The Marathi version of evidence shows that
this happened at about 12.00 - 12.30 noon. When
PW-2 Suresh deposed that the aforesaid accused
persons came back, he again named the accused
persons and while naming them, made reference also
to accused No.4 - Kondbarao whom he had missed to
refer earlier.
16. The evidence of PW-2 Suresh gets support
from the evidence of PW-3 Gangadharappa, PW-4
Annapurna, PW-5 Gajanan Torkad, PW-13 Santosh
Gangadharappa Torkad, PW-14 Santosh Kishanappa
Torkad as well as PW-15 Raju Torkad. The evidence
of all these witnesses when read, makes it clear
that on the day of incident at about 10.00 - 11.00
a.m. initially accused Nos.1, 2, 4 and 8 to 11 did
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enter the field of victim. The evidence shows that
along with victim, there was his wife and other
family members were also there in the field. The
evidence of witnesses shows that at such time when
initially these accused entered the field, they
had threatened the victim that they would be
taking away the crop and if obstructed, the victim
would be killed.
17. PW-3 Gangadharappa has stated that at
such time he was present in the house and when the
aforesaid seven accused persons entered the field,
he himself, his father, mother, uncle and cousin
brothers came out of the house. These seven
accused started claiming that they would take away
crop of turmeric and that the victim and these
persons should not take the same. PW-3
Gangadharappa had deposed that these seven accused
claimed that if they were obstructed, they would
kill the person who obstructs. It was stated "JO
MADHE YEYEEL TYACHA MURDA PADU" i.e. whoever
intervenes would be killed. PW-3 Gangadharappa has
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deposed that accused Nos.8 and 9 abused them and
after giving such threats, they went towards the
road.
18. Evidence of PW-5 Gajanan Gangadharappa
Torkad is that when these accused persons entered
the field they started claiming that they would
pluck the crop of turmeric and their 20 Gunthas
land is there and they would see that who
obstructs them and they would kill him who
obstructs. Similar evidence is there of PW-13
Santosh Gangadharappa, PW-14 Santosh Kishanappa
and PW-15 Raju Bhimaappa also.
19. I have gone through the cross-examination
of the witnesses but do not find that the
witnesses are shattered in their evidence. The
counsel for the accused persons did not point out
any specific material on the basis of which the
witnesses who have come on record, speaking
regarding the incident could be said to be
shattered. No doubt the witnesses partially did
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not support the prosecution, but taking overall
conspectus of the evidence, the same appears to be
inspiring confidence.
20. The evidence discussed above shows that
the accused persons had a motive for the attack
and initially they came to be field threatening
that they should not be obstructed and that if
they are obstructed from taking away the crop from
portion of field they claimed to be belonging to
accused No.1, they had threatened to kill Victim
or whoever obstructs. The evidence in this regard
deserves to be accepted.
21. The evidence of PW-2 Suresh Torkad and
the evidence of PW-3 Gangadharappa then shows that
after these seven accused initially came and
threatened and went back, the victim and his
family members did feel that there was a real
threat. PW-3 Gangadharappa deposed that on seeing
the attitude of accused persons, he gave
information to the police. According to him, he
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first gave a telephone call but he was told by the
PSO that he will have to come and give the
complaint. The evidence of the witnesses mentioned
above shows that PW-3 Gangadharappa along with one
Bhagwanappa and Subhashappa went to Basamba Police
Station on motorcycle.
22. The evidence of PW-6 Head Constable
Sheshrao Bangar, is that at about 11.00 a.m. he
received phone call from Parda that persons from
Hatkar community are coming with Gundas of Bangar
and that they are going to assault the person
making phone call. PW-6 Head Constable Sheshrao
deposed that he informed PW-16 A.P.I. Chate on
phone. He also called the control room to send
police force. PW-6 deposed that home-guards were
available at the police station and he sent 2-3
home-guards with driver to Parda who came back
along with Subhashappa and Gangadharappa, who
informed that there will be fight and so the Head
Constable should accompany. The evidence shows
that this PW-6 gave charge of PSO to another
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official and along with home-guards and driver
Mundhe, by Jeep went to Parda to the spot.
23. It appears that, in the meanwhile, the
seven accused persons mentioned above (i.e.
accused Nos.1, 2, 4 and 8 to 11) phone called for
more persons but without waiting went back to the
spot at about 12.00 - 12.30 noon armed with axe
and sticks and they started giving abuses. The
evidence of PW-2 Suresh, PW-4 Annapurna, PW-5
Gajanan read with evidence of PW-13, PW-14 and PW-
15 shows that when these accused persons went back
to the spot, victim was there and apart from PW-2
Suresh, his uncle Vithalappa and other uncles were
present. The evidence shows that victim tried to
convince the accused persons that they should get
the land measured. Thus the evidence shows that
these accused persons who had threatened to kill
the victim if obstructed, when they went back
armed with axe and sticks, still found the victim
resisting. Victim was thin built 75 years old
person. This can be seen from Postmortem Report
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Exhibit 91. It is not that these seven accused
went there and suddenly accused No.8 Goprao used
the axe on the head of the victim. The evidence
shows that the victim at the time of earlier entry
and even when accused came back armed, was trying
to explain to the accused persons and at that time
accused No.8 Goprao gave 2-3 blows with axe on the
back side of the head of the victim. This can be
seen from the Marathi version of evidence of PW-2
Suresh. The evidence of witnesses further makes it
clear that at the time when accused No.8 Goprao
gave 2-3 blows with axe, the assault was followed
up by accused No.9 Baban giving stick blows on the
back of the victim. Evidence further shows that
the victim fell down on the ground with injuries
to head. By the time the victim was taken to the
hospital, he was dead.
. The evidence of these witnesses i.e.
PW-2, PW-4, PW-5, supported by PW-13, PW-14 and
PW-15, shows that when the companions of the
victim tried to intervene, the persons intervening
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were also beaten by the accused persons. PW-2
Suresh has deposed that accused No.11 Waman in the
course of incident, gave blows with stick to PW-13
Santosh Gangadharappa. PW-13 Santosh Gangadharappa
has also deposed that accused No.11 Waman had
attacked him with the stick and blows were given
on his left leg and left hand. There is medical
evidence which corroborates PW-13 Santosh
Gangadharappa. Medical certificate Exhibit 98 has
been proved by PW-8 Dr. Ramesh Kute.
24. PW-5 Gajanan Gangadharappa has also
deposed that when the victim was attacked by
accused Nos.8 and 9, the other accused persons
started assaulting them. He deposed that accused
No.4 Kondbarao assaulted PW-15 Raju Torkad using
handle of spade. PW-15 Raju Torkad has also
deposed that he was assaulted by stick by accused
No.4 Kondbarao causing hurt to his little finger
of the left hand. Medical certificate Exhibit 99
in this regard has been proved by PW-8 Dr. Ramesh.
PW-5 Gajanan further deposed that accused No.1
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Krishnarao and accused No.2 Keshavrao assaulted
PW-14 Santosh Kishanappa Torkad. The evidence of
PW-14 Santosh Kishanappa Torkad shows that he was
given blow by stick by accused No.1 Krishnarao on
his right knee. The injury has been proved on the
basis of the medical certificate Exhibit 97 proved
by PW-8 Dr. Ramesh. Even if it was to be said that
PW-13 Santosh Gangadharappa and PW-15 Raju Torkad
were accused in the cross-case, PW-14 Santosh
Kishanappa does not appear to be accused in the
cross-case. The evidence on record shows that some
of the witnesses were residing with the victim
while some of the witnesses examined had residence
nearby. Thus their presence is natural. Apart from
this, the injuries suffered by these witnesses
goes to prove their presence on the spot at the
time of incident.
25. Taking over-all view of the evidence,
what appears is that seven accused persons
mentioned above, earlier went and threatened the
victim as they were claiming that part of the
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field belonging to accused No.1 Krishnarao had
been wrongly purchased by the victim and wanted
the victim to give back the said portion of the
land and on this basis were claiming that they had
a right to take away the crop which was there in
the said portion and having threatened that if
they were obstructed they will kill the victim or
person obstructing, they earlier went back to the
nearby road and made some phone calls and then
armed with axe and sticks again committed criminal
trespass and when victim tried to explain and thus
obstructed the accused persons, they carried out
the threat. While accused No.8 Goprao gave more
than one blows by the axe on the head of the
victim, accused No.9 Baban hit on the back of the
victim by stick blows and the intervenors were
stopped from helping by other accused persons by
assaulting them. The common object is obvious. The
evidence shows that there was real threat which
was given earlier because of which PW-3
Gangadharappa had rushed to the police station. By
the time the police reached, the second part of
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the incident of murdering the victim and
assaulting intervenors was over. The evidence of
PW-7 Dr. Vithal Karpe proved three injuries on the
head of the victim i.e. one incised wound on head,
two contusions on head and one contusion on back
and abrasion on the left shoulder of the victim.
The oral evidence read with the medical evidence
shows that there is substance in the oral evidence
regarding the manner in which the offence was
committed.
26. The evidence of PW-6 Head Constable
Sheshrao Bangar shows that when he reached the
spot in Jeep along with the home-guards, he found
that there was one tractor which had turtled on
the road and there was one Jeep which was dashed
from back side and there were two motorcycles
lying on the road. When witness got down from the
vehicle, he heard crying of lady. This must be
PW-4 Annapurna. He found one person lying there
having sustained head injury. This was the victim.
This Head Constable arranged to shift the victim
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to the hospital. The evidence of this witness
shows that even on the spot where he had reached
almost when the incident was concluding, he was
told that accused No.8 Goprao had assaulted the
victim with axe and accused No.9 Baban had given
blows with the handle on the back. Even if this
may be stated to be hear-say, what is relevant is
that even immediately the same incident was told
to the police. The evidence of PW-13 Santosh
Gangadharappa shows that at the time of incident
when he was attacked, he tried to flee from the
spot with the help of tractor but the tractor
turned turtle in a pit. There is corroboration to
this evidence of PW-13 from the Head Constable PW-
6 Sheshrao and even Spot Panchnama proved by PW-16
A.P.I. Chate. One can visualize the manner in
which the persons who tried to help the victim,
were attacked by the accused persons who had
formed an unlawful assembly to make them run
helter-skelter.
27. I am not convinced with the argument that
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the act of PW-8 Goprao in assaulting the victim
was individual act of his own and the other six
accused cannot be said to have had knowledge. The
over-all reading of the evidence makes it clear
that these accused persons had clear object that
they will assert right to the portion of land
which they claimed was wrongly with the victim and
forcibly take away the crop and resistance if any
should be eliminated. When these accused persons
went back together to the field of victim with
accused No.8 Goprao armed with an axe, they knew
that the axe, a deadly weapon, can be used and
when the axe was indeed used on the head of the
victim not once but three times, there is no
material to show that the other accused persons
startled or stepped back. Rather accused No.9
Baban followed up the attack made by accused No.8
by giving (in quick succession) stick blows on the
back of the victim and the other accused persons
attacked those who were intervening using sticks
making them run helter-skelter to the extent that
one of the intervenor PW-13 Santosh Gangadharappa
cria622.12
could not even manage to run away properly with
the help of tractor which turned turtle. Sticks,
as in present matter, when used as weapons of
offence must also be held to be dangerous weapons.
Criminal trespass, murder and rioting was done by
the unlawful assembly of the seven accused armed
with deadly weapons. Taking over-all view of the
evidence, I am not convinced with the arguments
made for the accused persons that only accused
No.8 Goprao should be held liable for the murder
and the other accused did not have any such common
object of the assembly to kill if necessary.
28. I have gone through the Judgment of the
trial Court and find that the trial Court has not
given any appropriate reasons as to how and why,
when there was same evidence against accused
Nos.1, 4, 8 to 11 vis-a-vis accused No.2, it was
not convicting accused No.2 Kesahavrao, who was
part of the seven persons in both parts of the
incident. Reading of the Judgment shows that trial
Court almost missed the presence of accused No.2
cria622.12
Keshavrao while discussing the evidence, although
all the witnesses i.e. PW-2 to PW-5 and PW-13 to
PW-15 did refer to his presence and participation
in the acts. I thus find that there is substance
in the State Appeal which has been filed. The
State has filed the Criminal Appeal No.179 of 2014
against the acquittal of accused Nos.2 and 5. We
have heard Advocate Shri Joydeep Chatterji for
accused No.2 but I reject his argument that the
evidence against accused No.2 can be
distinguished, only because overt act of assault
by him has not separately come on record. I find
that the Appeal of the State requires to be
allowed as far as regards accused No.2 Keshavrao
Dattrao Maske is concerned and he too must suffer
the same punishment as has been imposed by the
trial Court against the other accused, whose
conviction needs to be maintained.
29. As regards accused No.6 Santosh Laxman
Bangar and accused No.7 Shriram Laxman Bangar,
there is evidence of none of the witnesses
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speaking against them. No doubt the witnesses
turned hostile as regards involvement of accused
Nos.6 and 7 but inspite of cross-examination, no
evidence which could be judicially accepted so as
to convict these persons had come on record. In
the impugned Judgment the trial Court in Paragraph
Nos. 24, 25 and 37 appears to have relied on the
material in the counter-case being Sessions Trial
No.9 of 2008 so as to convict accused Nos.6 and 7.
On the basis of material in counter-case, the
trial Court in this Sessions Trial No.15 of 2008
held the accused Nos.6 and 7 guilty holding that
they were present in the unlawful assembly. I find
that it would be necessary for the prosecutor to
bring necessary material on record to establish
the presence and participation of any given
accused. Without the material being brought on
record of this Sessions trial, only because the
Judge deciding the counter-cases is common, does
not mean that the Judge can read material from the
other trial in this trial. Thus, I find that the
conviction imposed against accused Nos.6 and 7
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cannot be sustained. From the record of the
present trial, it cannot be said that there is
actionable evidence for conviction as regards
accused Nos.6 and 7. There is no actionable
evidence even as regards accused Nos.3 and 5, in
this trial.
30. Accused No.8 Goprao has filed Criminal
Application No.5160 of 2013 claiming that accused
No.6 Santosh Laxman Bangar had registered Crime
No.12 of 2007 and that it was necessary to explain
injuries on the persons of the either side but the
details were not brought on record and the trial
Court should have brought on record documents like
Spot Panchnama, medical certificate, statement of
medical officer and complaint in both the cases on
record. The applicant - accused No.8 prays that
such documents be allowed to be brought on record.
At the time of arguments the learned counsel for
accused No.8 has not made submissions regarding
this Application. However, it needs to be observed
that the documents to be brought on record is job
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of the concerned prosecutor. As far as injuries to
the accused, in the present matter there is
evidence of PW-4 Annapurna which shows that when
her husband fell down, quarrel started between the
accused persons and their persons (i.e. persons
trying to help the victim). Apart from this, even
the F.I.R. mentions that at the time of incident
there was a big quarrel. Thus, it cannot be said
that injuries or cause of injuries to persons
involved had not been explained.
31. The learned A.P.P. relied on the case of
Anup Lal Yadav and another vs. State of Bihar,
(2014) 10 Supreme Court Cases 275 to submit that
all the members of the unlawful assembly are
constructively liable for the acts committed by
each other, in prosecution and execution of the
common object. It is argued that it is not
necessary to show overt act by all the accused
persons in order to fasten liability of punishment
on them. In the Judgment relied on by the learned
A.P.P., in Para 19, the Hon'ble Supreme Court
cria622.12
referred with advantage to observations of the
Hon'ble Supreme Court in earlier Judgment of Lalji
vs. State of U.P., (1989) 1 S.C.C. 437. The
concerned Para 9 from Judgment in the matter of
Lalji reads as under:-
"9. Section 149 makes every member of an
unlawful assembly at the time of committing of
the offence guilty of that offence. Thus this
section created a specific and distinct
offence. In other words, it created a
constructive or vicarious liability of the
members of the unlawful assembly for the
unlawful acts committed pursuant to the common
object by any other member of that assembly.
However, the vicarious liability of the mebers
of the unlawful assembly extends only to the
acts done in pursuance of the common objects
of the unlawful assembly, or to such offences
as the members of the unlawful assembly knew
to be likely to be committed in prosecution of
that object. Once the case of a person falls
within the ingredients of the section the
question that he did nothing with his own
hands would be immaterial. He cannot put
forward the defence that he did not with his
own hand commit the offence committed in
prosecution of the common object of the
unlawful assembly or such as the members of
cria622.12
the assembly knew to be likely to be committed
in prosecution of that object. Everyone must
be taken to have intended the probable and
natural results of the combination of the acts
in which he joined. It is not necessary that
all the persons forming an unlawful assembly
must do some overt act. When the accused
persons assembled together, armed with lathis,
and were parties to the assault on the
complainant party, the prosecution is not
obliged to prove which specific overt act was
done by which of the accused. This section
makes a member of the unlawful assembly
responsible as a principal for the acts of
each, and all, merely because he is a member
of an unlawful assembly. While overt act and
active participation may indicate common
intention of the person perpetrating the
crime, the mere presence in the unlawful
assembly may fasten vicariously criminal
liability under Section 149. It must be noted
that the basis of the constructive guilt under
Section 149 is mere membership of the unlawful
assembly, with the requisite common object or
knowledge."
(Emphasis supplied)
. In Para 22 of its Judgment in the matter
of Anuplal Yadav and another, cited supra, Hon'ble
Supreme Court also referred to the Judgment in the
cria622.12
matter of State of Rajasthan vs. Shiv Charan,
reported in (2013) 12 S.C.C. 76, and para 19 of
that earlier Judgment reads as under:
"19. The pivotal question of applicability of
Section 149 IPC has its foundation on
constructive liability which is the sine qua
non for its application. It contains
essentially only two ingredients, namely, (I)
offence committed by any member of any
unlawful assembly consisting five or more
members; and (II) such offence must be
committed in prosecution of the common object
(Section 141 IPC) of the assembly or members
of that assembly knew to be likely to be
committed in prosecution of the common object.
It is not necessary that for common object
there should be a prior concert as the common
object may be formed on the spur of the
moment. Common object would mean the purpose
or design shared by all members of such
assembly and it may be formed at any stage.
Even if the offence committed is not in direct
prosecution of the common object of the
unlawful assembly, it may yet fall under the
second part of Section 149 IPC if it is
established that the offence was such, as the
members knew, was likely to be committed."
cria622.12
. Referring to such earlier Judgments, in
that matter of Anuplal Yadav, the Hon'ble Supreme
Court rejected the arguments that the accused were
only passive onlookers as was tried to be
canvassed in that matter. Keeping such Judgments
of the Hon'ble Supreme Court in view, I have
already appreciated the evidence and find that the
accused persons were members of unlawful assembly
which had already threatened the victim with death
and having once reversed and called for further
help and re-entered the field of the victim having
armed themselves with axe and sticks when they
were still obstructed, they assaulted the victim
as well as those trying to intervene. The common
object is apparent and apart from accused No.8,
accused No.9 the other five accused i.e. accused
Nos.1, 2, 4, 10 and 11 against whom evidence has
come on record are also liable to be held guilty
under Section 302 read with 149 of I.P.C. The
assault on the vital part of the body of the
victim who was an old thin built man, clearly
cria622.12
demonstrated the common object. Even otherwise,
the age of the victim appears to have been such
that even without an axe were he to be assaulted
even by the sticks in the manner in which he was
hit on the head, his chances of survival would be
poor. In the present matter having been attacked
by the axe, he did not even reach the hospital
alive.
32. The learned A.P.P. has further relied on
the case of Om Prakash vs. State of Haryana,
reported in (2014) 5 Supreme Court Cases 753. In
Para 16 of the Judgment, the Hon'ble Supreme Court
observed as under:-
"16. Common object of an unlawful assembly can
also be gathered from the nature of the
assembly, the weapons used by its members and
the behaviour of the assembly at or before the
scene of occurrence. It cannot be stated as a
general proposition of law that unless an
overt act is proven against the person who is
alleged to be a member of the unlawful
assembly, it cannot be held that he is a
cria622.12
member of the assembly. What is really
required to be seen is that the member of the
unlawful assembly should have understood that
the assembly was unlawful and was likely to
commit any of the acts which fall within the
purview of Section 141 IPC. The core of the
offence is the word "object" which means the
purpose or design and in order to make it
common, it should be shared by all. Needless
to say, the burden is on the prosecution. It
is required to establish whether the accused
persons were present and whether they shared
the common object. It is also an accepted
principle that number and nature of injuries
is a relevant fact to deduce that the common
object has developed at the time of incident."
33. In the present matter, the seven accused
mentioned above, assembled along with axe and
sticks and their behaviour demonstrated that they
once went and threatened and having called for re-
enforcement, without waiting, again committed
criminal trespass and attacked the victim and
intervenors. There was actual participation in
causing of hurts by accused No.1, accused No.4,
accused No.8, accused No.9 and accused No.11. In
fact PW-5 Gajanan has deposed that he had seen
cria622.12
accused No.2, in addition to accused No.1
assaulting PW-14 but as PW-14 referred to only
accused No.1, I am not stressing on that part.
Still, accused No.2 and accused No.10 who were
also part of the unlawful assembly, and shared the
common object, cannot escape liability for overt
acts of other accused in prosecution of the common
object.
34. For reasons discussed above, with respect
I am taking a differing view.
35. For the afore-stated reasons, I pass the
following order:-
O R D E R
(I) Criminal Appeal No.622 of 2012 as well
as Criminal Appeal No.625 of 2012 are both
dismissed.
(II) Criminal Appeal No.633 of 2012 is
allowed and the conviction and sentence
imposed against the Appellants - original
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accused No.6 - Santosh Laxman Bangar and
accused No.7 - Shriram Laxman Bangar by
the impugned Judgment and order is quashed
and set aside. They are acquitted of the
offences with which they were charged.
Their bail bonds are cancelled.
(III) (i) Criminal Appeal No.179 of 2014
filed by the State against original
accused Nos.2 and 5 is partly allowed. The
Appeal is rejected as regards original
accused No.5 - Santosh Nanarao Maske. His
bail bonds are cancelled.
(III) (ii) (a) However, the Appeal of the
State being Criminal Appeal No.179 of 2014
against the acquittal of accused No.2
Keshavrao Dattrao Maske is allowed.
(b) Original accused No.2 Keshavrao
Dattrao Maske is convicted under Section
302 read with Section 149 of Indian Penal
Code, 1860 and is sentenced to suffer
imprisonment for life and to pay a fine of
Rs.5000/- and in default to suffer
rigorous imprisonment for six months.
(c) Original accused No.2 Keshavrao
Dattrao Maske is further convicted under
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Section 447 read with Section 147 of
Indian Penal Code, 1860 and sentenced to
suffer rigorous imprisonment for six
months and to pay a fine of Rs.1000/- and
in default to suffer rigorous imprisonment
for one month.
(d) Accused No.2 Keshavrao Dattrao Maske
is further convicted of the offence
punishable under Section 147 of Indian
Penal Code, 1860 and sentenced to suffer
rigorous imprisonment for three months and
to pay a fine of Rs.500/- and in default
to suffer rigorous imprisonment for one
month.
(e) Accused No.2 Keshavrao Dattrao Maske
is convicted for offence punishable under
Section 148 of Indian Penal Code, 1860 and
sentenced to suffer rigorous imprisonment
for three months and to pay a fine of
Rs.500/- and in default to suffer rigorous
imprisonment for one month.
(f) Accused No.2 Keshavrao Dattrao Maske
is further convicted for offence
punishable under Section 149 of Indian
Penal Code, 1860 and sentenced to suffer
rigorous imprisonment for three months and
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to pay a fine of Rs.500/- and in default
to suffer rigorous imprisonment for one
month.
(g) All the substantive sentences shall
run concurrently.
(h) Accused No.2 would be entitled to set
off under Section 428 of the Code of
Criminal Procedure.
(i) Accused No.2 Keshavrao Dattrao Maske
shall surrender to his bail bonds
immediately.
(IV) Criminal Application No.5160 of 2013
filed by original accused No.8 Goprao
Marotrao Maske is rejected.
[A.I.S. CHEEMA, J.]
asb/SEP16
