Bombay High Court
Digamber Dattarao Karkar vs The State Of Maharashtra on 28 July, 2023
Bench: V. V. Kankanwadi, Abhay S. Waghwase
2023:BHC-AUG:15885-DB
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL APPEAL NO. 372 OF 2016
1. Hanuman S/o Dattarao Karkar
Age: 34 years, Occu.: Labour
2. Meenabai W/o Hanuman Karkar
Age: 28 years, Occu.: Labour
3. Sojarbai W/o Dattarao Karkar
Age: 59 years, Occu.: Labour
4. Dattarao W/o Tukaram Karkar
Age: 69 years, Occu.: Labour
5. Digambar S/o Dattarao Karkar
Age: 29 years, Occu.: Labour
All R/o Thadi Ukkadgaon,
Tq.Sonpeth, Dist.Parbhani. ... Appellants
[Org. Accused]
VERSUS
State of Maharashtra
Through Police Inspector,
Police Station, Sonpeth,
Tq. Sonpeth, Dist. Parbhani ... Respondent
WITH
CRIMINAL APPEAL NO. 600 OF 2023
Digamber S/o Dattarao Karkar
Age: 36 years, Occu.: Nil,
R/o. (at present Visapur open
District Prison)
Thadi Ukkadain,
Tq. Sonepet, Dist. Parbhani. ... Appellant
::: Uploaded on - 28/07/2023 ::: Downloaded on - 29/07/2023 08:26:54 :::
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VERSUS
State of Maharashtra
Through Police Inspector,
Sonpeth Police Station,
Tq. Sonpeth, Dist. Parbhani ..Respondent
.....
Mr. Mahesh P. Kale, Advocate for Appellant Nos.1 to 4 in Criminal
Appeal No.372/2016
Mrs. Sharda P. Chate, Advocate for Appellant in Criminal Appeal
No.600/2023 [appointed]
Mr. A. V. Deshmukh, APP for Respondent-State in both appeals.
.....
CORAM : SMT. VIBHA KANKANWADI AND
ABHAY S. WAGHWASE, JJ.
RESERVED ON : 20 July, 2023
PRONOUNCED ON : 28 July, 2023
JUDGMENT [ABHAY S. WAGHWASE, J.] :
1. Getting dissatisfied by the judgment and order of conviction
passed by learned Additional Sessions Judge, Gangakhed in Sessions
Trial No. 7 of 2012 dated 12.05.2016, for the offence punishable
under Sections 144, 148, 302 r/w 149 of the Indian Penal Code [IPC],
all five appellants have preferred the instant appeal praying to quash
and set aside the said judgment.
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2. On the request of original accused no.5, a separate Advocate
i.e. Advocate Mrs. Sharda P. Chate has been appointed to represent
his cause by filing separate appeal. Since both appeals are arising out
of the one and the same judgment and order of conviction, both are
decided by this common judgment.
FACTS LEADING TO TRIAL
3. Informant PW1 Devidas had a dispute with accused nos. 1, 4
and 5 over the field taken by him for cultivation. Deceased Sudhakar,
who was brother of informant, was helping him in cultivating the
field. There used to be quarrel between deceased and accused on that
count. On the morning of 19.08.2011 at 9.00 a.m., there was quarrel
between deceased Sudhakar and accused nos.1 to 5. Informant
intervened and brought his brother Sudhakar to the house.
Thereafter, informant went to the field. At 12.30 p.m., informant
received a phone call from PW2 Ganesh informing about quarrel
again taking place between deceased and accused in front of house of
one Bhaskar and so informant rushed home. According to him, he saw
accused Dattarao, who was armed with sickle, and accused no.5
Digambar, who was armed with knife, were assaulting deceased.
When wife of deceased, namely, Ashabai intervened, accused no. 2
Meenabai and accused no.3 Sojarbai indulged in scuffle with her. In
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the assault, deceased Sudhakar succumbed at the spot and therefore,
informant summoned police and thereafter lodged report Exhibit 43
which was made the basis of registration of crime against accused
persons.
4. The appellants came to be arrested and the matter was
investigated by PW13 Police Inspector Waghmare. The accused
persons were duly chargesheeted after which learned trial Judge
framed charges and recorded evidence adduced by prosecution.
Defence also adduced evidence of three witnesses. Thereafter, on
hearing both sides and appreciating the oral and documentary
evidence adduced by the parties, learned trial Judge reached to the
finding that prosecution has established the charges and thereby
convicted the present appellants as spelt out in the operative part of
the judgment.
Exception has been taken to the above judgment on various
grounds spelt out in the appeal memo.
RIVAL SUBMISSIONS
5. Mr. Kale, learned Advocate for the appellants in Criminal
Appeal No. 372 of 2016 as well as appointed Advocate Mrs. Chate for
the appellant in Criminal Appeal No. 600 of 2023 would point out
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that there is no convincing, cogent evidence about enmity or assault.
According to them, though prosecution claims that there is direct eye
witness account, there are material omissions, contradictions and
inconsistencies in the testimonies of the so called direct eye witnesses
and therefore, prosecution evidence was untrustworthy of credence.
They pointed out that it is doubtful whether so called direct eye
witnesses were present at all at the scene of occurrence. According to
them, there is no independent witness, rather only related witnesses
are examined by prosecution and therefore, story of prosecution
cannot be accepted as proved. They took us through the testimonies
of all witnesses, more particularly of informant Devidas [PW1],
Ganesh [PW2], Babruwan [PW3], Ashabai [PW4] and child witness
Sunil [PW5] and would submit that the answers given by them during
cross render the case of prosecution doubtful. That, none of the eye
witnesses are lending support to each other and therefore, it is their
submission that, conclusion arrived at by learned trial court is illegal.
6. Learned Advocate Mr. Kale would would further submit that
even taking the case of prosecution and the evidence adduced as it is,
it is doubtful whether appellant nos. 1, 2 and 3, to whom no overt act
is attributed, could at all be held guilty. For all above reasons, both
Advocates pray that appeals deserve to be allowed.
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7. Per contra, learned APP would also take us through the
evidence of informant Devidas [PW1], wife of deceased Ashabai
[PW4], Ganesh [PW2] and Babruwan [PW3] and would submit that
they are all residents of the same village and they had rushed to the
scene of occurrence and had narrated whatever they saw. According
to learned APP, motive is cogently proved and there is no serious
dispute about it in spite of witnesses being cross-examined at length.
According to learned APP, the incident had taken place in broad day
light of afternoon on the road. Roles played by each of the accused
are clearly spelt out and in view of the charge under Section 149 of
IPC, it is his submission that, presence of all accused, when not
disputed, itself is sufficient to rope in and implicate and convict all of
them. Canvassing in favour of the judgment and order of conviction,
learned APP would submit that there is no merit in the case so as to
disturb the findings and consequently, he prays for dismissal of the
appeals.
8. Hear, there is charge under Section 302 r/w 149 of IPC along
with Sections 144 and 148 of IPC. On re-analyzing and re-
appreciating the available evidence, it is emerging that to substantiate
the charges, prosecution has examined as many as 14 witnesses those
can be categorized as under:
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Eye witnesses:
PW1 Devidas Laxman Bhujbal [informant]
PW2 Ganesh Haribhau Bhujbal
PW3 Babruwan Dnyanoba Bhandare
PW4 Ashabai Sudhakar Bhujbal (injured)
PW5 Sunil Sudhakar Bhujbal (child witness)
Pancha Witnesses:
PW6 Ganpat Dashrath Bhandare, pancha to inquest panchanama
Exhibit 59
PW7 Hanuman Dnyanoba Avad, pancha to seizure of clothes
pancanama Exhibits 63, 64 and 65.
PW9 Shyam Shrawan Chavan and
PW10 Bhima Chavan are panchas to memorandum of disclosure
and seizure panchanama. They have not supported
prosecution.
Police Officials:
PW8 Vishwambhar Nivrutti Sodgir, Police Head Constable,
carrier of muddemal.
PW12 Vishnu Eknathrao Suryawanshi, Police Head Constable,
who register crime on the basis of report Exhibit 43 lodged
by PW1 informant Devidas.
PW13 Kundankumar Waghmare, Police Inspector is the
Investigating Officer.
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PW14 Digambar Baddu Rathod, A.S.I., who conducted inquest
panchanama Exhibit 59
Medico legal expert:
PW11 Dr. Siddheshwar Halge, autopsy doctor. He identified
postmortem report authored by him to be at Exhibit 77 and
also the injury certificate issued by him in respect of injuries
suffered by PW4 Ashabai to be at Exhibit 78.
Defence Witnesses:
DW1 Chandrakant Tukaram Bhandare, agriculturist, in whose
field accused no.1 Hanuman was stated to be working.
DW2 Angad Dnyanoba Karkar, in whose fielf accused no.3
Sojarbai was claimed to be working.
DW3 Prabhakar Dukare, who claimed that accused no.2
Meenabai was working in his field.
9. Taking into account the case of prosecution and the claim that
there is direct evidence, evidence of PW1 informant Devidas, PW2
Ganesh, PW3 Baburao, PW4 Ashabai (injured) and PW5 Sunil (child
witness) assumes significance. However, in the light of charge, first
we are required to get satisfied that prosecution has demonstrated
that death of Sudhakar was homicidal one.
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10. To find out answer, we need to visit the evidence of PW11 Dr.
Halge, autopsy doctor. In his evidence at Exhibit 76, he has narrated
the injuries noticed by him on external examination which are as
under:
External injuries as mentioned in column no.17 :
1] Incised wound over occipital area, measuring 2" x 1" x 1", it
was deep upto bone. It was curved shaped injury. It is of
grievous nature.
2] Incised wound - over posterior aspect of neck over
medullary region, measuring 1" x 1/2" bone deep & brain
matter. It was curved shaped injury. It was of grievous
nature.
3] Incised wound at base of neck in between two scapula,
measuring 1" x 1/2" bone deep. It was of grievous nature.
All injuries were below each other from injury no.1 to injury
no.3.
4] Incised wound on left scapula at medial upper end,
measuring 1" x 1/2" deep to bone.
5] Incised wound over left scapula at acromian process
measuring 2" x 1" deep to bone.
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6] Contusion and lacerated wound on both knees approximate
size 1" x 1/2".
Injury nos.4, 5 and 6 were simple in nature.
All above injuries were ante mortem.
Internal injuries :
Doctor found hatoma in bleeding within brain matter. It
was found on opening the scalp. It was corresponding to
injury No.1 & 2 mentioned in column no.17. He also found
fracture of occipital bone at upper side of the scalp.
In the opinion of autopsy doctor, death of Sudhakar was due to
"cardiac respiratory failure due to hemorrhagic shock due to head
injury and other associated injuries". He clarified that injury nos. 1 to
3 are sufficient in the ordinary course of nature to cause death and
they are possible by hard and sharp weapon like knife, sickle, chopper
etc.. He was confronted with Articles A and B upon which he stated
that injuries are possible by the said weapons.
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In cross, he has answered that injury nos. 1 and 2 are curved
shape and possible by curved edged weapon like katti. He answered
that occipital bone is hard bone and its fracture is possible due to
assault with force. He answered that injury nos. 4 and 5 were on the
left shoulder of deceased and that, medullary region means the region
between occipute and the base of neck.
11. In the light of above opinion of medico legal expert, we too are
convinced that death of Sudhakar is due to "cardiac respiratory failure
due to hemorrhagic shock due to head injury and other associated
injuries" and hence it is nothing but homicidal one.
12. Having answered above question of manner and mode of death,
we are to see whether prosecution has further discharged its burden
of proving that appellants herein to be the authors of the injuries on
the person of deceased Sudhakar. As stated above, prosecution has
come with a case of direct evidence. Therefore, it would be desirable
to give sum and substance of the prosecution witnesses, who are said
to be direct eye witnesses, which is as under:
13. PW1 Devidas Bhujbal [informant] has stated that there was
dispute between him and accused nos. 1, 4 and 5 with regard to the
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field purchased by him. He stated that an incident took place on
19.08.2011 at 9.00 a.m. regarding quarrel between deceased and
accused nos. 1 to 5 in front of shop of one Bhagwan Chandwade. He
claims that Sudhakar was being abused saying that why field of
Marotrao was purchased. Witness claims that he brought his deceased
brother to the house and thereafter, he along with his wife, niece and
son, went to the field. Around 12.30, he got phone call from PW2
Ganesh informing about quarrel again taking place in front of house
of Bhaskar and therefore he claims to have rushed there. He has
narrated that accused no.4 Dattarao was holding sickle and accused
no.5 Digambar was holding knife. Accused no.1 Hanuman had caught
hold of hands of deceased Sudhakar from behind and accused
Dattarao assaulted deceased by sickle on the rear side of his neck,
whereas accused Digambar assaulted him by means of knife also on
the rear side of neck. When Ashabai intervened, accused nos. 2 and 3,
i.e. Meenabai and Sojarbai, scuffled with her. Witness stated that he
has seen the occurrence from a distance of 10 feet. Accused fled.
Witness further named the persons who have witnessed the incident.
According to him, Sudhakar died on the spot and so he passed the
information to the police and then lodged report.
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14. PW2 Ganesh at Exhibit 46 deposed that he knows accused and
informant. According to him, Marotrao Katkar had given land for
cultivation to the informant. There was dispute regarding the field
and there were quarrels on that count. According to him, on
19.08.2011 at about 12.30 p.m. when he returned home from the
field, at that time, quarrel was going on in front of house of Bhaskar
between Sudhakar on one side and all accused on the other. Witness
stated that he therefore made phone call to informant Devidas about
quarrel. He stated that accused no.4 Dattarao had a sickle in his hand.
Accused no.5 Digambar assaulted deceased Sudhakar on the rear side
of head with knife and accused no.1 Hanuman had caught hold of
hands of deceased from behind. Deceased fell down due to assault.
Wife of deceased and son of deceased also were present there.
Accused nos. 2 and 3 gave slaps and fist blows to Ashabai. Accused
no.4 Dattarao assaulted Sudhakar with koyta on the back of his neck
and thereafter accused persons fled away.
15. PW3 Babruwan gave evidence that he knew accused and that
there was dispute between Marotrao and Devidas in respect of the
field. There was dispute between informant Devidas and accused no.4
Dattarao in respect of the same field. Regarding incident, his
testimony is that incident took place at 12.30 noon on the road in
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front of door of Bhaskar. He claims to have witnessed the incident
while he was proceeding towards the house of one Shridhar Karkar.
According to him, accused no.4 Dattarao and accused no.5 Digambar
were abusing deceased Sudhakar, whereas accused no.2 Meenabai
and accused no.3 Sojarbai were abusing Ashabai. Accused no.4
Dattarao dealt a blow of sickle on the shoulder of deceased Sudhakar
and accused no.5 Digambar dealt a knife blow on his neck. Accused
no.1 Hanuman had caught hold the hands of deceased. Accused no. 2
Meenabai and accused no.3 Sojarbai had scuffled with Ashabai. Due
to assault, Sudhakar died.
This witness stated that Ganesh, Devidas and he himself
witnessed the incident. He identified accused.
16. PW4 Ashabai, wife of deceased gave evidence that the incident
took place around 12.30 p.m. to 1.00 p.m. in front of the house of
Bhaskar. According to her, accused were saying to deceased Sudhakar
as to why he was helping informant in respect of the field of Maroti
and they were harassing them. According to her, the incident of
verbal quarrel took place in the morning between accused no.4
Dattarao and her deceased husband and therefore, Devidas brought
her husband home. Thereafter, her husband went out and again
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accused persons abused him on his way and quarrel took place.
Therefore, she claims that she along with her son, namely, Sunil went
there. Accused no.4 Dattarao dealt a blow of sickle on the shoulder of
her husband and accused no.5 Digambar assaulted him on the back of
his neck with knife. Accused no.1 Hanuman caught hold the hands of
her husband and while she was going towards her deceased husband
Sudhakar, at that time accused no. 2 Meenabai and accused no.3
Sojarbai caught hold of her and beat her. Thereafter accused persons
fled with weapons. She stated that two to four persons came there
and they were Babruwan, Ganesh and Devidas. Her husband was
referred to the hospital. She identified articles knife and sickle as well
as the accused.
17. PW5 Sunil was minor and therefore he was allowed to depose
without administering oath. In his evidence he stated that deceased
was his father. Pointing to accused he stated that they committed
murder of his father in the incident which took place four years ago.
According to him, there was some incident in the morning but he was
not present at that time. He further stated that during afternoon
hours his father was going out from the house around 12.30 to 1.00
p.m. That time accused nos. 4 and 5 threatened his father and beat
him. He claimed that at such time he was playing in the courtyard in
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front of the house of Prakash Chandwade. He stated that accused no.5
Digambar assaulted his father by means of knife on the back of the
head and accused no.4 Dattarao assaulted by means of sickle on the
back of his father. According to him, accused no.1 Hanuman had
caught hold the hands of his father from behind and when his mother
tried to separate his father, at that time accused nos. 2 and 3 scuffled
with his mother, as a result of which she fell down. His uncle Devidas
was at a distance. Learned trial court has taken note of the demeanor
of the child witness by noting that the child was weeping. According
to this child witness, Ganesh and Babruwan were standing in front of
his house. He identified accused. He stated that accused fled away
with knife and sickle. He also identified articles knife and chopper.
18. The other witnesses who are also examined by prosecution are
PW6 Ganpat, pancha to inquest panchanama; PW7 Hanuman Avad,
pancha to panchanama of seizure of clothes; PW8 PHC Sodgir, carrier
of muddemal; PW9 Shyam and PW10 Bhima, panchas to
memorandum of disclosure at the instance of accused nos. 4 and 5
and seizure panchanama, but they have not supported prosecution;
PW11 Dr. Halge, autopsy doctor; PW12 PHC Suryawanshi and PW13
PI Waghmare are police official and Investigating Officer respectively
and they have deposed about the steps taken by them during
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investigation and PW14 ASI Rathod who conducted inquest
panchanama.
19. In the light of the points raised before us by learned counsel for
the appellants, we have minutely and carefully examined and
scrutinized the entire cross-examination of the above direct witnesses.
It is revealed that there is extensive cross even on the issues of which
there is no dispute and which are of not much significance. Therefore,
we only propose to deal with the relevant cross i.e. on the point of
dispute, quarrel and assault. Much cross is devoted on relations,
history and geography of the scene of occurrence. Therefore we
propose to ignore the same, as there is ocular account.
20. On carefully sifting the substantive evidence, more particularly
the questions, answers and the suggestions given to the above direct
eye witnesses, it is emerging that the aspect of dispute on account of
the field has remained unshaken. Evidence of informant [PW1
Devidas], wife of deceased [PW4 Ashabai], Ganesh [PW2] and
Babruwan [PW3] also reflects the background of dispute coming on
record. Even the manner of suggestions put to the witnesses clearly
indicates that the occurrence and presence of accused is not seriously
disputed. On the contrary, the very questions and suggestions posed
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to these witnesses clearly show that occurrence is not rendered
doubtful. Informant Devidas [PW1] has categorically states that prior
to the incident of assault, there was quarrel in the morning at 9.00
a.m.. His testimony to that extent is corroborated by none other than
the wife of deceased i.e. Ashabai [PW4]. The very child witness has in
his chief stated that there was quarrel but he very candidly answered
in his chief itself that he was not present when the quarrel took place
in the morning. Therefore, from the testimony of informant, wife of
deceased and the child witness, the incident of quarrel at around 9.00
a.m. has been cogently brought on record.
21. Now as regards the role attributed to accused No.4 Dattarao
and accused No.5 Digambar, it has been consistently stated by the
above witnesses that accused Dattarao was armed with sickle and
accused Digambar was holding knife. True it is that some witnesses
speak about weapon to be sickle or chooper, but that would not affect
the story of prosecution as injuries are identified by the autopsy
doctor and on examining the seized articles, he has opined about
injuries to be possible by the same. It is common knowledge that
witnesses, more particularly rustic villagers give different names to
articles and therefore, merely on such count, evidence of PW1
Devidas, PW2 Ganesh, PW3 Babruwan, PW4 Ashabai and child
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witness PW5 Sunil cannot be rendered doubtful. All above witnesses
are found to be lending support to each other on the aspect of
accused No.1 Hanuman holding deceased Sudhakar by his hands
thereby facilitating assault by accused no.4 Dattarao and accused no.5
Digambar.
22. Informant Devidas [PW1], who was claiming to be at a short
distance of around ten feet, has stated about sites of assault.
Similarly, Ashabai [PW4], who indulged for separation, has also
stated about sites of assault. According to informant Devidas [PW1],
accused Dattarao and accused Digambar both assaulted on the rear
side of neck. PW2 Ganesh spoke about accused Digambar assaulting
Sudhakar on the rear side of head and accused Dattarao assaulting on
the back of his neck when accused Hanuman had caught hold of
deceased. PW3 Babruwan has given site of assault by accused
Dattarao as shoulder and knife blow by accused Digambar on the
neck. PW4 Ashabai stated that accused Dattarao dealt blow on the
shoulder of her husband and accused Digambar assaulted on the back
of his neck. Child witness PW5 Sunil stated that accused Dattarao
assaulted on the back of his father and accused Digambar assaulted
on the back of head of his father.
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23. What is emerging from their evidence is that portion below the
head and neck are said to be targeted. Autopsy doctor has clarified
during cross that medula region falls between occipital part and neck
of a person. Therefore, in our opinion, there is no much difference in
the site of injury except PW3 Babruwan stating about assault being
made on shoulder. It is to be borne in mind that when a person
witnesses assault, it is difficult to take note of particular part of the
body. Therefore, merely he giving slightly different location itself will
not be sufficient to disbelieve his testimony or testimonies of other
witnesses like PW4 Ashabai- wife of deceased and even the minor
PW5 Sunil. Death has taken place instantaneously. Appellant Dattarao
and Digambar are shown to be armed with sharp edged articles like
knife and sickle. Both are deadly weapons. In spite of lengthy cross,
aspect of actual role and assault has not been disturbed or shaken.
24. Much emphasis is laid by learned counsel for the appellants on
the point of variances and omissions. However, in the testimony of
PW1 informant Devidas, omissions are regarding purchase of field
from Maroti, accused questioning the said transaction, about
Sudhakar being brought to house, about call received form PW2
Ganesh informing regarding quarrel, about assault on deceased on the
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rear side of the neck by accused no.4, about witnessing the
occurrence form 10 feet. In our opinion such omissions are not at all
material.
25. In testimony of PW2 Ganesh, there are omissions about
informing police regarding accused no.1 Hanuman catching hold of
hand of deceased from behind. Omission is only regarding holding
from behind. Further omissions are about marking presence of PW4
Ashabai and her son, about not stating the word "slap" by accused
no.2 Meenabai to Ashabai and about accused no.4 Dattarao assaulting
on the back of neck, about weapon to be curved. Even such omissions
are insignificant.
26. In the testimony of PW3 Babruwan, it is pointed out that this
witness has not stated about dispute between Devidas and Maroti,
about Laxmi residing with Devidas, about incident taking place in
front of house of Bhaskar, about not mentioning assault on the
shoulder of deceased. Even these omissions are not material one.
27. In fact, the core of the prosecution case about actual assault on
deceased by Dattarao and Digambar, on deceased being held by
Hanuman, has remained unshaken. All prosecution witnesses are
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consistent as regards the actual occurrence is concerned. Roles played
by accused appellants are consistently defined by each of the eye
witnesses.
28. Learned counsel for the appellants also pointed out that
appellant nos. 1, 2 and 3 i.e. Hanuman, Meenabai and Sojarbai are
wrongly held guilty. That, no overt act is attributed to them and no
injury is caused at their instance. That, according to him, merely by
applying Section 149 of IPC, they ought not to have been held guilty.
29. Before entertaining above contentions and arguments, it would
be fruitful to highlight the settled law on enforceability of Section 149
of IPC. Time and again, this issue has been discussed and dealt in
various pronouncements. The ratio decidendi is that, Section 149 IPC
makes every person who is member of unlawful assembly at the time
of committing of the offence, guilty of that offence. It creates
constructive or vicarious liability of the members of unlawful
assembly for unlawful acts committed pursuant to the common object
by any member of such assembly. Such liability can be fastened only
to the acts done in pursuance of common object of the unlawful
assembly, or to such offences as the members of unlawful assembly
knew to be likely to be committed in prosecution of that
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object. It is fairly settled that commission of an overt act by such a
person would be one of the tests to prove that he shared the common
object, but it is not the sole test. Once the case of a person falls within
the ingredients of Section 149 IPC, the question that he did nothing
on his own, would be immaterial, as everybody is considered to be
aware of the probable and natural outcome of the acts with which
they have formed unlawful assembly. Mere plea 'not being armed'
would not absolve a person from liability. Once their gathering has
been demonstrated to have indulged in unlawful act, sharing of
common intention comes into play.
30. In the case of Gangadhar Behera v. state of Orissa ; (2002) 8
SCC 381, law on this aspect is spelt out in clear words which is as
under:
"Under Section 149, the emphasis is on common
object. Mere presence in an unlawful assembly cannot
render a person liable, unless there was a common
object and he was actuated by that common object
and that common object is one of those which are set
out in Section 141. Where common object of an
unlawful assembly is not proved, the accused persons
cannot be convicted with the help of Section 149. The
crucial question to determine is, whether the assembly
consisted of five or more persons and whether the said
persons entertained one or more of the common
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objects, as specified in Section 141. It cannot be laid
down a general proposition of law that unless an overt
act is proved against a person, who is alleged to be a
member of an unlawful assembly, it cannot be said
that he is a member of an unlawful assembly. It is not
necessary under law that in all cases of unlawful
assembly, with an unlawful object, the same must be
translated into action or be successful. Under the
Explanation to Section 141, an assembly which was
not unlawful when it assembled, may subsequently
become unlawful. It is not necessary that the intention
or the purpose, which is necessary to render an
assembly an unlawful one, comes into existence at the
outset. The time of forming an unlawful intent is not
material. An assembly which, at its commencement or
even for time thereafter, is lawful, may subsequently
become unlawful. In other words, it can develop
during the course of incidence on the spot. The plea
that definite roles have not been ascribed and
therefore Section 149 is not applicable, is declared as
untenable."
Similar views are echoed in the ruling of Chanda v. State of
U.P.; (2004) 5 SCC 141 and Subal Ghorai v. State of W.B.; (2013) 4
SCC 607.
31. Keeping in mind above legal requirements, we reject such
submission and contention for the simple reason that here, appellants
are charged by invoking Section 149 of IPC. After the initial instance
of quarrel between deceased and Dattarao, subsequently also when
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deceased allegedly left house, all five appellants had come there. They
are apparently five in number. Some of them were armed. Though
Dattarao and Digambar have mounted assault and dealt blows,
appellant Hanuman has caught hold of deceased. When Ashabai went
to intervene, appellant nos. 2 and 3 i.e. Meenabai and Sojarbai had
scuffled with her and thereby had prevented her from attempting to
save her husband. Therefore, it is joint effort. Definite roles have been
ascribed to each of them reflecting their participation. Their gathering
at around 12.30 p.m. was with common object which they have
achieved. The main occurrence at noon was a sequel and consequence
of quarrel which had taken place at around 9.00 am in the morning
and therefore above submissions about conviction of appellant nos. 1,
2 and 3 i.e. Hanuman, Meenabai and Sojarbai, to be illegal, cannot be
accepted.
32. No doubt witnesses are near and dear ones but only three out
of five. PW2 Ganesh and PW3 Babruwan have categorically stated
about they present in the house and witnessing the incident. They
have defined the roles of each of the accused and have clearly stated
who was holding what. They also seem to be aware of the
background of the assault. Therefore, with such impeccable evidence
on record, and their testimonies having remained unshaken on the
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core of prosecution case about murderous assault, case of prosecution
deserves to be accepted as proved.
33. On going through the impugned judgment, it is noticed that
learned trial Judge has, on hearing both sides, appreciated both, oral
and documentary evidence in correct perspective. The requisite law
and legal position has been applied and thereafter, after carefully
appreciating the evidence, conclusion of guilt of all the appellants has
been drawn. The reasons assigned for accepting the case of
prosecution are convincing. No fault can be found in the appreciation
of evidence and the impugned judgment. Hence, we proceed to pass
the following order:
ORDER
I. Both the appeals are hereby dismissed.
II. We quantify the fees of the appointed Advocate at Rs.10,000/-
to be paid by High Court Legal Services Sub-Committee, Aurangabad.
[ABHAY S. WAGHWASE, J.] [SMT. VIBHA KANKANWADI, J.]
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