Bombay High Court
Sangeeta Dilip Vede And Anr vs The State Of Maharashtra on 10 January, 2025
2025:BHC-AS:1644
WAKLE
MANOJ
JANARDHAN Manoj 907-APL-445-2024.doc
Digitally signed by
WAKLE MANOJ
JANARDHAN
Date: 2025.01.15
11:41:23 +0530
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPLICATION (APL) NO. 445 OF 2024
1. Sangeeta Dilip Vede,
Age:40 years, Occu: Housewife
R/at Patil Palace, Block No.1,
Babdhan (Khurd), Taluka Mulshi,
Pune.
2. Ranjana Chandrakant Vede,
Age:43 years, Occu: Housewife
R/at Flat No.1, Patil Palace,
Babdhan (Khurd), Taluka Mulshi,
Pune. ...Applicants
Vs.
The State Of Maharashtra
Through Hinjewadi Police Station
In C.R. No.386 of 2010 ...Respondent
Mr. Harshad Nimbalkar, Sr. Advocate a/w Mr. Shailesh Kharat,
Mr.Satyam Nimbalkar & Mr. Tanmay T. Kate for the Applicants.
Mr. N.B. Patil, APP for the State.
Mr.Taktole-PSI, Hinjewadi Police Station, Pimpri Chinchwad, Pune,
present.
CORAM : SHYAM C. CHANDAK, J.
RESERVED ON : 29th NOVEMBER, 2024.
PRONOUNCED ON : 10th JANUARY, 2025
JUDGMENT :
-
. Present Application filed under Section 482 of the Code of
Criminal Procedure seeks quashing and setting aside of the impugned
Order dated 4th January 2024, passed by the learned Additional
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Sessions Judge, Pune thereby the Application at Exhibit-30 seeking
for discharge of the Applicants (Accused Nos.12 and 13) in Sessions
Case No.1003/2013 has been rejected.
1.1) The Application is opposed by the Respondent-State with
the Affidavit affirmed Mr. Ghadge, Police Inspector (Crimes),
Hinjewadi Police Station, Pune.
2) Heard Mr. Nimbalkar, the learned Senior Counsel for the
Applicants and Mr. N.B. Patil, the learned A.P.P. for the Respondent
State. Perused the record.
3) Rule. Rule is made returnable forthwith. Heard finally
with consent of the parties.
4) That, first informant-Nikhil Rajaram Vede, residing at
Rajvilas Hights, Bavdhan (Khurd), Pashan Road, Pune. On dated 24th
November 2010, the informant lodged an oral report with the
Hinjewadi Police Station wherein he has narrated that Rashtravadi
Congress Party had two groups in his village. One group was headed
by Kunal Vilasrao Vede, who is cousin of the informant and the
another group was headed by Dilip Tukaram Vede, who is Sarchitnis
of the party, for Pune city. At the relevant time, the party workers'
support to Kunal Vede was increasing, therefore, Dilip Vede was
annoyed. During Diwali time of 2010, Kunal Vede had displayed a
banner of Diwali greetings to the locals. Said banner was torn by
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Shailesh s/o. Dilip Vede. However, Kunal Vede did not file a
complaint thereof. Thereafter, Mr.Ajit Pawar became the Deputy
Chief Minister. Therefore, Kunal Vede had displayed a board of
"Congratulation" on his hotel Vardayani. This caused annoyance to
Dilip Vede and his associates.
4.1) On dated 23rd November 2010, at about 21:00 hours, near
new Vitthal temple at Bavdhan (Khurd), boys namely Nikhil
Ramchandra Vede, Vishal Dahibhate, Nikhil Pawar, Umesh Shelar
and Amit Karanje were gossiping. At that time, an accident occurred
there between two wheelers of Sharad Dagade (A-10) and one Indica
car and Sharad Dagade was loudly abusing to the said car driver.
Hence, Nikhil Vede persuaded Sharad Dagade not to abuse so loudly,
as there were women around. However, Sharad Dagade got offended
and he called on phone to accused Ajinkya Vede (A-1), Avinash Vede
(A-2) and Pintu Tapkir. At that time Ajinkya Vede was armed with a
chopper and Avinash Vede was having a Koyta and the said three
were abusing Kunal Vede and Prafulla Karanje, by asking their
whereabouts; threatening to kill them and then they went away. Later
on, Kunal Vede and Prafulla Karanje learnt about the aforesaid
incident and hence, they came at the Vitthal temple and inquired with
the boys seated there. At that time, accused Shailesh Dilip Vede (A-4),
Ajinkya Vede (A-1), Avinash Vede (A-2), Prasad Vede (A-5), Chetan
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Vede (A-9), Chandrakant Devram Vede (A-11), Swapnil Balasaheb
Vede (A-6), Pintu Tapkir, Vikram Bharat Vede (A-3) and Sultan
Sheikh (A-7) came there. The Applicants were present with the said
accused. As soon as Dilip Vede (A-14) arrived there, he caused Vishal
Dahibhate to fell down and then gave him kicks and fist blows.
Shailesh Vede, Ajinkya Vede and Avinash Vede gave sword, chopper
and koyata blows to Vishal Dahibhate on his left shoulder and back.
The said three also assaulted the Nikhil Ramchandra Vede over his
right hand. Avinash Vede inflicted a blow on the stomach of Swapnil
Vede. Dilip Vede rushed on the person of Kunal Vede and threatening
to kill, gave sword blows on Kunal's head. Seeing that, Shailesh Vede
and Ajinkya Vede also inflicted blows on Kunal Vede. At that time,
Prasad Vede, Chandrakant Vede, Sultan Sheikh, Pintu Tukaram
Tapkir, Vikram Vede, Chetan Vede gave stick blows to the people who
had gathered there. It is alleged that, Applicants abused the members
of victim side and thus, abetted the other accused persons.
4.2) Police reduced the aforesaid narration into writing and
registered an F.I.R. bearing No.386 of 2010 under Sections 143, 147,
149, 307, 324, 323, 504 and 506 of the Indian Penal Code against all
the accused. It was followed by recording spot panchnama, statement
of witnesses, recovery of weapons used in the offence, collection of
medical reports etc. The investigation resulted in filing of charge-
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sheet in the 7th Court of learned Judicial Magistrate First Class,
Shivajinagar, Pune who committed the case to the Court of Sessions.
5) However, according to the Applicants they were innocent
and yet they have been falsely implicated in the case. Hence, both the
Applicants filed the Discharge Application at Exhibit-30. The learned
Judge of the trial Court heard the rival submissions and considering
the same in the light of the incriminating material on record, the said
learned Judge held that the Applicants were present at the spot at the
time of incident. The witnesses have specifically described the role of
the Applicants in the alleged offence. The offence is punishable under
Sections 307 read with Sections 149, 147, 148 etc., of the I.P.C. Hence,
there is no scope to say that the Court cannot even suspect the
occurrence of the offence alleged against the Applicants. This finding
ultimately persuaded the learned Judge to reject the Discharge
Application by the impugned Order.
6) Mr. Nimbalkar, the learned Senior Counsel for the
Applicants submitted that, except bald allegation that the Applicants
abused and thus, abetted the other accused persons, no other role or
allegation is attributed to the Applicants. He urged that, this isolated
fact is not sufficient to hold that prima facie the Applicants were
members of the unlawful assembly having its the common object to
assault the informant party and further, to put the Applicants on trial.
Manoj 907-APL-445-2024.doc
He emphatically submitted that, even if the aforesaid evidence goes
unchallenged in the cross-examination, it would not end in conviction
of the Applicants for the alleged offences. Therefore, the Applicants
are entitled for discharge. However, the learned Judge of the trial
Court held the otherwise. As such, the impugned Order is illegal and
liable to be quashed and the Applicants may be discharged.
7) In contrast, Mr. Patil, the learned APP submitted that
there is evidence that, on the relevant date, at time and place the
Applicants were present alongwith their co-accused. When the co-
accused were assaulting the victims and others, the Applicants were
instigating them by abusing the members of victim side. Thus, there
is sufficient material against the Applicants showing their
involvement in the crime and to put them on trial. The learned A.P.P.,
therefore, urged to reject the Application.
8) As held in the case of Kuldeep Yadav and Othrs. vs. State
of Bihar1, "the provision of Section 149 of I.P.C. makes it clear that
before convicting accused with the aid of Section 149 of I.P.C., the
Court must give clear finding regarding nature of the common object
and that, the object was unlawful. In the absence of such finding as
also any overt act on the part of the accused persons, mere fact that
they were armed would not be sufficient to prove common object.
1. (2011) 5 SCC 324.
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Section 149 creates a specific offence and deals with punishment of
that offence. Whenever the Court convicts any person or persons of
an offence with the aid of Section 149, a clear finding regarding the
common object of the assembly must be given and the evidence
discussed must show not only the nature of the common object but
also that the object was unlawful. Before recording a conviction under
Section 149 IPC, essential ingredients of Section 141 of I.P.C. must be
established. The above principles have been reiterated in the case of
Bhudeo Mandal and Others vs. State of Bihar, (1981) 2 SCC 755 ."
9) In the case of Rajendra Shantaram Todankar vs. State of
Maharashtra and others2, the Hon'ble Supreme Court, in paragraph
14, has held as under :-
"14. Section 149 of the Indian Penal Code provides that if an
offence is committed by any member of an unlawful
assembly in prosecution of the common object of that
assembly, or such as the members of that assembly knew to
be likely to be committed in prosecution of that object, every
person who at the time of the committing of that offence, is a
member of the same assembly is guilty of that offence. The
two clauses of Section 149 vary in degree of certainty. The
first clause contemplates the commission of an offence by
any member of an unlawful assembly which can be held to
have been committed in prosecution of the common object
of the assembly. The second clause embraces within its fold
2. (2003) 2 SCC 257.
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the commission of an act which may not necessarily be the
common object of the assembly, nevertheless, the members
of the assembly had knowledge of likelihood of the
commission of that offence in prosecution of the common
object. The common object may be commission of one
offence while there may be likelihood of the commission of
yet another offence, the knowledge whereof is capable of
being safely attributable to the members of the unlawful
assembly. In either case, every member of the assembly
would be vicariously liable for the offence actually
committed by any other member of the assembly. A mere
possibility of the commission of the offence would not
necessarily enable the Court to draw an inference that the
likelihood of commission of such offence was within the
knowledge of every member of the unlawful assembly. It is
difficult indeed, though not impossible, to collect direct
evidence of such knowledge. An inference may be drawn
from circumstances such as the background of the incident,
the motive, the nature of the assembly, the nature of the
arms carried by the members of the assembly, their common
object and the behaviour of the members soon before, at or
after the actual commission of the crime. Unless the
applicability of Section 149-either clause--is attracted and
the Court is convinced, on facts and in law, both, of liability
capable of being fastened vicariously by reference to either
clause of Section 149 IPC, merely because a criminal act was
committed by a member of the assembly every other
member thereof would not necessarily become liable for
such criminal act. The inference as to likelihood of the
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commission of the given criminal act must be capable of
being held to be within the knowledge of another member of
the assembly who is sought to be held vicariously liable for
the said criminal act."
10) As observed in the case of Mala Singh and Ors. vs. State of
Haryana.3, it is well settled that, if several persons numbering five or
more, do an act and intend to do it, both sections 34 and section 149
may apply. If the common object does not necessarily involve a
common intention, then the substitution of section 34 for section 149
might result in prejudice to the accused and ought not, therefore, to
be permitted. But if it does involve a common intention then the
substitution of section 34 for section 149 must be held to be a formal
matter. Whether such recourse can be had or not must depend on the
facts of each case.
11) In Vikramjit Kakati Vs. State of Assam 4, the Hon'ble
Supreme Court noted the principles applicable in cases of discharge,
for which a reference was made to a decision in P.Vijayan Vs. State of
Kerala & Anr5, which has been further reiterated by the Apex Court in
M.E. Shivalingamurthy Vs. Central Bureau of Investigation,
Bengaluru6 and discerned the following legal principles :-
3. (2019) 5 SCC 127.
4. 2022 SCC OnLine SC 967.
5. (2010) 2 SCC 398.
6. (2020) 2 SCC 768.
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"17.1. If two views are possible and one of them gives rise
to suspicion only as distinguished from grave suspicion, the
trial Judge would be empowered to discharge the accused.
17.2. The trial Judge is not a mere post office to frame the
charge at the instance of the prosecution.
17.3. The Judge has merely to sift the evidence in order to
find out whether or not there is sufficient ground for
proceeding. Evidence would consist of the statements
recorded by the police or the documents produced before
the Court.
17.4. If the evidence, which the Prosecutor proposes to
adduce to prove the guilt of the accused, even if fully
accepted before it is challenged in cross-examination or
rebutted by the defence evidence, if any, "cannot show that
the accused committed offence, then, there will be no
sufficient ground for proceeding with the trial".
17.5. It is open to the accused to explain away the
materials giving rise to the grave suspicion.
17.6. The court has to consider the broad probabilities, the
total effect of the evidence and the documents produced
before the court, any basic infirmities appearing in the case
and so on. This, however, would not entitle the court to
make a roving inquiry into the pros and cons.
17.7. At the time of framing of the charges, the probative
value of the material on record cannot be gone into, and the
material brought on record by the prosecution, has to be
accepted as true.
17.8. There must exist some materials for entertaining the
strong suspicion which can form the basis for drawing up a
charge and refusing to discharge the accused."
12) In the case in hand what one gets from the record is that,
after the incident of the accident, initially, accused Ajinkya Vede,
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Avinash Vede with one Pintu Tapkir had come to the spot and
inquired about Kunal Vede and Prafulla Karanje. At that time itself
Ajinkya Vede and Avinash Vede were armed with the weapons.
Immediately thereafter, the accused party members again came at the
same spot armed with dangerous weapons and assaulted certain
members of the victim side. These peculiar facts clearly indicate that,
there was a common object of the unlawful assembly to assault the
members of the victim side, otherwise, the accused party would not
have come to the spot carrying the weapons i.e., with a preparation to
assault. The record indicates that, since beginning of the assault the
Applicants were associated with their co-accused and all the accused
arrived at the spot together. However, at no point of time the
Applicants stopped their co-accused from carrying the weapons nor
from assaulting to the members of the victim side. On the contrary,
when the said co-accused were assaulting, the Applicants were
abetting them abusing the members of the victim side. In this
background I am of the considered view that, there is a grave
suspicion that the Applicants were involved in the offence registered
against them. The Applicants could not explain away the material
giving rise to that grave suspicion. Therefore, the Applicants are not
entitled for discharge.
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13) In view of the above discussion, the impugned Order is
lawful and it need not be interfered with. As a result, present
Application fails and it is liable to be rejected. The Application is
rejected, accordingly.
(SHYAM C. CHANDAK, J.)
