Bombay High Court
Vishwanath Ram Mhatre, Haribhau Pilaji ... vs The State Of Maharashtra [Alongwith ... on 11 March, 2004
Author: P.V. Kakade
Bench: V.G. Palshikar, P.V. Kakade
JUDGMENT P.V. Kakade, J.
1. All these appeals can be conveniently disposed of by this common judgment as they arise out of a common judgment and order dated 19.3.1998 passed by the learned Additional Sessions Judge, Raigad-Alibag in Sessions case No. 133 of 1996 and Sessions Case No. 67 of 1997, which was cross case, adjudicated simultaneously.
2. In Sessions Case No. 133 of 1996 in all 18 accused persons were involved, out of which Accused Nos. 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16 and 18 were convicted for offences punishable under Sections 147 and 148 of I.P.C. and sentenced to suffer R.I. for one year and to pay fine of Rs. 500/- in default to suffer R.I. for three months. Accused Nos. 1, 3, 8, 9, 10, 11, 12, 13, 14, 15, 16 and 18 were convicted for offences punishable under Section 452 r/w 149 of IPC and were sentenced to suffer R.I. for two years and to pay fine of Rs. 500/- in default to suffer R.I. for three months.
Accused Nos. 1, 2, 3, 4, 5, 6, 7, and 18 were convicted for offences punishable under Section 302 r/w 149 of IPC and were sentenced to suffer life imprisonment and to pay fine of Rs. 1000/- in default to suffer R.I. for three months.
Accused Nos. 1 and 2 were convicted for offences under Section 25(1)(a) of the Arms Act and were sentenced to suffer R.I. for three months.
Accused No. 2 Sharad who was convicted for offence punishable under Section 307 of I.P.C. for attempting to cause death of witness Damayanti and was sentenced to suffer R.I. for five years and to pay fine of Rs. 500/- in default to suffer R.I. for three months.
Accused No. 2 was also convicted for offence punishable under Section 307 of IPC for attempting to cause death of witness Arjun and was sentenced to suffer R.I. for five years and to pay fine of Rs. 500/- in default to suffer R.I. for three months.
The substantive sentences were directed to run concurrently.
Accused No. 17 was acquitted of all the charges.
In Sessions Case No. 67 of 1997, which is a cross case, in all eight accused persons were charged for offences punishable under Sections 149, 336 r/w Section 149, 452 r/w 149 of IPC along with Sections 147, 427 r/w 149 of IPC. However, accused Nos. 4, 5, 7 and 8 from the said sessions case only were acquitted for offences under Section 147, 427 r/w 149 of IPC and were sentenced to suffer R.I. for one year and to pay fine of Rs. 500/- in default to suffer R.I. for three months. The said accused were also sentenced to suffer R.I. for one year and to pay fine of Rs. 500/- in default to suffer R.I. for three months for offences punishable under Section 427 r/w 149 of IPC.
All substantive sentences were directed to run concurrently.
It may be noted that Criminal Appeal No. 443 of 1998 arises out of cross complaint i.e. Sessions Case No. 67 of 1997 and therefore, the said appeal shall be taken up for consideration subsequently i.e. after earlier four appeals are dealt with. However, it may be noted that earlier four appeals as well as cross appeal arise out of same cause of incident.
3. The facts giving rise to the said cases, in nutshell, are thus -
4. The accused persons, deceased Kisan Shankar Penkar, injured Damayanti and injured Laxman and other prosecution witnesses are resident of village Pargaon. On account of election of Surpancha for the Grampanchayat of Pargaon, there was dispute between the group of accused person and in the group of prosecution witnesses. There was insistance on the part of accused Shankar Mhatre against family of deceased Shankar Penkar that said family should support his group. It is the case of prosecution that 3/4 days prior to the incident, there was a quarrel between the family of deceased and the accused, as son of deceased Kisan had occupied a seat in the S.T. Bus near the daughter of accused Shankar. Attempts were made to pacify both the groups and to settle the dispute. However, Accused Shankar and others were not agreeable for the settlement of dispute and that accused person had declared their intention to kill the deceased Kisan.
The incident occurred on 6.5.1995. In the evening of earlier day, attempt for settling dispute was made by the deceased Kisan and his family members. The dispute was not settled, deceased Kisan, feared in his mind for his life and therefore, he had gone to the residence of one Gajanan Mhatre, and stayed there over night. In the morning of 6.5.1995 at about 6.30 a.m. all accused persons with weapons like stick, sword and gun went to the house of deceased Kisan. All of them forcibly entered into the house of Kisan and were giving shouts declaring their intention to cause death of Kisan. In the course of the said events, accused persons caused damage to the articles in the house of the deceased. The family members of the deceased ran away from the residence with the fear of possible assault on them. Thereafter the accused persons with weapons in their hands went to the spot in front of the house of the accused No. 4 Haribhau. At that time deceased Kisan was proceeding by the side of road and was in front of house of Narayan Patil. Accused Chitaman gave shout by saying that "FOUND HIM, AND SHOOT HIM". (GHAVALA RE YALA GOLYA GHALA). Thereupon accused Shankar fired gun on Kisan and, as he got injured, Kisan shouted as (MELO MELO SHANKAR NE GHAT KELA) "DIED DIED SHANKAR BETRAYED ME" with the said firing by accused No. 1. Deceased Kisan received pellet injuries and fill on the ground. Thereupon deceased Kisan had made attempt to stand on the ground. By that time on hearing sound of firing, Damayanti and Arjun were proceeding towards the place of incident to ascertain as to what had happened. Thereupon, accused No. 2 Sharad fired his gun towards deceased Kisan. In the said firing injuries were caused to witnesses Damayanti and Arjun. The said incident was witnessed by prosecution witnesses namely, Namdeo and Sadashiv, who were standing in front of their respective houses. Witness Namdeo and others rushed towards Kisan, who was lying on the ground with injuries. Thereupon, accused persons proceeded by the road and they were pelting stones on the houses of prosecution witnesses resulting into damage to their houses.
Deceased Kisan was then shifted to Panvel in Auto Rickshaw and also the injured Damyanti and Arjun were shifted to Panvel in auto rickshaw. All of them were admitted in the hospital. Kisan was declared dead. Thereupon Namdeo went to Panvel Police Station and recorded a complaint. On the basis of which crime was registered against the accused persons. The investigation was commenced during the course of which statements of witnesses were recorded. Spot panchanama and inquest panchanama was made. Clothes of the deceased and injured were seized. Recovery of gun was made at the instance of accused No. 1. Sword was seized from the accused Vishwanath. Empty cartridges were recovered from the accused No. 1. Ballistic Expert for report. In due course, post mortem notes and ballistic report were received and are part of the record. After completion of the investigation the charge sheet was sent to the court of law. The learned Magistrate committed the case to the court of Sessions.
5. The learned Sessions Judge framed the charge against the accused persons for the offences punishable under Sections 147, 148, 302 r/w 149, 307 r/w 149, 336 r/w 149, 337 r/w 149, 341 r/w 149, 452 r/w 149, 506(2) r/w 149 and 120(b) of the Indian Penal Code as well as under Section 25(1)(a) of the Arms Act. All accused pleaded not guilty to the said charges. The defence of the accused is that of total denial of any criminal liability. The prosecution led its evidence at length. On which basis the learned Trial Judge came to the conclusion that the accused persons were guilty of commission of impugned offences and proceeded to convict and sentence them in aforesaid manner.
Hence the appeal.
6. We heard Mr. Mundargi, Mr. Hudalikar on behalf of the Appellants and Ms.Kejariwal on behalf of the State at length. We have also persued the entire evidence on record.
7. As can be seen from the entire record it is the case involving direct evidence and the eye witness account is quite graphic to show the involvement of some of the accused persons in the said incident. P.W.2 Namdeo, P.W.3 Sadashiv, P.W.4 Damayanti, P.W.7 Arjun and P.W. 5 Dropadi along with the evidence of P.W. 6 Meena wd/o of deceased Kisan, whose evidence was relied upon by the prosecution to bring home the guilt. It is to be noted that after the incident which occurred at about 6.30 to 6.45 a.m. on 6.5.1995, P.W.2 Namdeo filed police complaint (Ex.49) at Panvel Police Station at 10.00 a.m. wherein he has given the details of background of the assault and has proceeded to describe the assault made on behalf of the accused in details. According to the version of the FIR, accused Nos. 1 and 2 were armed with Guns whereas Accused Nos. 3, 4, 5, 6, 7 and 18 and other persons were armed with sticks, spears and swords came upto the house of Haribhau. At that time deceased Kisan was going towards his home. Accused No. 18 shouted loudly that Kisan was found and therefore, he should be shot and thereupon accused No. 1 fired his gun on Kisan, Kisan injured and fell to the ground due to bullet injury shouting loudly that he had died and Shankar had betrayed him. At that time accused No. 2 also fired his gun, due to which witnesses Arjun and Damayanti, who were present nearby, were injured. The commotion occurred, in which course the accused persons ran away pelting stones on the homes of group of witnesses. The complainant rushed to fallen Kisan and with the help of others he along with other injured were taken to Municipal Hospital, where Kisan was declared dead. The other injured were also given medical treatment. This is the crux of complainant Namdeo's evidence. It is to be noted that in the course of testimony, complainant has named 18 accused persons, but his FIR implicates only eight accused persons stating that those eight were along with other 10 to 12 persons.
8. The evidence of the complainant is duly supported by P.W. 3 Sadashiv, who has stated that his house is located near the house of the complainant. There are tow parts of house and he resides in back side of house and his brother Narayan resides in front portion. House of Haribhau is located near the house of Narayan and the place of incident is in front of house of Haribhau. He has further admitted in the cross examination that the road leading from tank proceeds from the southern side of house of complainant and it further proceeds from the southern side of Haribhau's house. This version of Sadashiv's evidence gives support to the version of complainant-Namdeo, and therefore, there is no doubt whatsoever that Namdeo as well as the witness Sadashiv were in position to see the incident as stated by them in their testimonies. According to this witness, on the day of the incident at about 6.30 to 6.45 a.m. he saw Shankar Penkar and Kisan Penkar proceeding towards the side of their houses from the tank side. Kisan was ahead by 20 to 25 paces of his father Shankar. At that time Shankar Mhatre was standing at the corner of the house of Haribhau. He was holding gun in his hand. By the side of Shankar, Accused No. 2 was also standing holding gun in his hand, Accused No. 3, 4, 5, 6, 7 and 18 were also standing at the side of Accused Nos. 1 and 2 and when Kisan came in front of the platform, accused No.1 fired gun on him. In the said firing Kisan fell on the ground. Accused No. 2 also fired his gun, at which time Damayanti wife of his brother came there followed by Arjun Patil. In the firing of accused No. 2 they sustained injuries Complainant Namdeo was also standing in his courtyard. Therefore it is quite clear that complainant as well as this witness have actually seen the incident and assault made by the accused persons at the relevant time and place.
Witness Sadashiv has stated that accused No. 1 was standing in the corner of house of Haribhau with the gun in his hand and accused No. 2 was standing by side of accused No. 1 having gun in his hand. Accused Nos. 3, 4, 5, 6, 7 and 18 were standing by their sides. The witness has also given further account of incident of fire opened by Accused No. 1 on Kisan and subsequent fire opened by Accused No. 2 causing injuries to witnesses Damayanti and Arjun. Such version of this witness is also giving due corroboration to the version of complainant about the formation of unlawful assembly with an object to cause death of Kisan. Evidence of P.W. 4 and P.W. 7 who are injured witnesses also supports to the complainant's counts regarding assault on Kisan by accused persons.
Therefore, the evidence of these witnesses leaves no doubt whatsoever in reaching the conclusion that at the relevant time and place Accused Nos. 1, 2, 3, 4, 5, 6, 7 and 18 had formed unlawful assembly and infurtherance of common object, Kisan was killed by Accused No. 1.
9. The medical evidence on record duly corroborated by Post mortem notes vide Exh.73 categorically shows that Kisan died due to pellet injuries and death was homicidal death. It is also established that death of Kisan was an intentional act with knowledge to the said accused persons of causing such injuries to Kisan so as to cause his death. Therefore, we have no doubt whatsoever that Accused Nos. 1, 2, 3, 4, 5, 6, 7 and 18 are guilty of offences punishable under Section 302 read with 149 of the Indian Penal Code. In this regard we must remember that Section 149 is not confined to offences committed in the actual prosecution of the common object of an unlawful assembly, and applies equally to offences committed by any one of its members which are such as the members knew to be likely to be committed in prosecution of that object. If use of violence is implicit in the object of an unlawful assembly armed with deadly weapons, and in the course of an attack by that assembly upon persons employed in their lawful avocations murder is actually committed, then every member of that assembly is guilty under Section 149 read with Section 302 even though the common object could not be placed as high as murder. In the present case the accused persons were aware of the fact that at least accused No. 1 was armed with deadly weapon i.e. rifle and therefore, they had a definite knowledge that common object of their assembly was to kill deceased Kisan. In view of this position we hold that Accused Nos. 1, 2, 3, 4, 5, 6, 7 and 18 are guilty of offence under Section 302 r/w 149 of the Indian Penal Code and the learned trial judge has rightly convicted them for the impugned offence.
10. Accused No. 2 is charged for offence under Section 307 read with Section 149 of IPC for attempt to cause murder of witnesses Damayanti as well as Arjun. According to the prosecution case, he was also carrying gun and fired his gun on Kisan but as a result of his firing both the said witnesses who were injured and therefore, the charge. In other words the prosecution has come out with a case regarding use of two guns in the said incident, one by accused No. 1 and other by accused No. 2. According to the defence, as appears from the cross examination, only one gun is produced on record and other gun is neither seized from accused No. 2 nor it is produced by prosecution or it is seized during the course of investigation. Therefore, it was submitted on behalf of the appellants that only one gun was used by accused No. 1 and there is no second gun involved. This submission finds support from the relevant panchanama of seizure of pellets as well as ballistic expert report. It is to be noted that as per panchanama Exh.84 two empty cartridges were seized from the house of accused Shankar. These cartridges were sent to C.A. for analysis. The C.A. report Ex.43 shows that the entries in Exh.2A i.e. K, F 12 bore shot gun empty having indentation on the cap and Exh.2B one KF 12 bore shot gun empty having indentation on the cap do not tally with the 12 bore shot gun cartridges, test fired from the 12 bore shot gun Exh.1. With this opinion in the C.A. report, it is established from the record that these two empty cartridges were not used for firing by the gun which was allegedly recovered through accused No.1 as used in the incident. Be as it may, the fact remains that second gun was not located throughout the investigation and therefore, as a matter of abundant precaution, it must be held that witnesses Damayanti and Arjun were injured due to the pellets fired by Accused No. 1 himself, especially in view of the Ballistic Expert Report. Therefore in our considered view, charge for offence under Section 307 against the accused No. 2 cannot stand.
11. Similar is the position with regard to incident of causing damage and forcible entry in the house of the deceased by the accused persons, though witnesses including P.W. 5 Meena, has stated about the damage to the property in the house. It is an admitted position that Investigating Officer P.W.10 has admitted that he has not seized the damaged property in the course of investigation. It is true that in the course of spot panchnama Exh.59 broken pieces of glass of windows, latch of the door were found inside the house and scattered around the spot. However, the evidence in that regard, in our view, is unable to pin-point the accused persons. In a case where a large crowd had collected, all of whom were not shown to be sharing a common object of the unlawful assembly, a stray assault by any one accused on any particular witness could not be said to be an assault in prosecution of the common object of an unlawful assembly, so that the remaining accused could be imputed the knowledge that such an offence was likely to be committed in prosecution of the common object of the unlawful assembly. Whenever in uneventful rural society, something unusual occurred, more so, where the local community was faction ridden and a fight occurred amongst factions, a good number of people appeared on the seen no with a view to participate in the occurrence but as curious spectators. In such an event mere presence in the lawful assembly should not be treated as leading to the conclusion that the person concerned was present in the lawful assembly as a member of the unlawful assembly. In the present case before us, that there is some evidence regarding factual damage to the property of the witnesses, it is not possible to separate grain from the chaff, in order to pin-point the accused persons to be the persons, who caused the said damage. In other words, the persons, who were found unlawfully assembled are found to be part of the large crowd gathered at the said time and place and therefore it would not be possible to arraign all of them only because they are of the rival group.
12. Therefore, as we have seen earlier the prosecution evidence is found to be sufficient to bring home the guilt against the accused Nos. 1, 2, 3, 4, 5, 6, 7 and 18 for offence under Section 302 r/w 149 of IPC and therefore they are liable to be punished for the same. Similarly accused No. 1 would be guilty of offence under Section 21(1)(a) of the Arms Act, though accused No. 2 will have to be acquitted from the charge punishable under the Arms Act. Similarly the other accused persons cannot be held guilty separately for offences under Sections 147, 148, 152, 307 r/w 149 of IPC and entitled to be acquitted of the same charges.
13. Now we turn to Criminal Appeal No. 443 of 1998, which arises out Sessions Case No. 67 of 1997, which was a counter case of Sessions Case No.133 of 1997. We heard the learned Counsel for the appellant in the said appeal. It is apparent from the record that most of the accused persons involved therein are the witnesses in the cross case. P.W.1 Gunabai is the complainant, who has stated that no 6.5.1995 in the morning she went to the house for milking buffalos, at which time the accused persons, armed with deadly weapon, attacked on their houses and caused damage to the property for which reason she filed a Police Complaint at Panvel Police Station at 7.00 p.m. in the evening. The delay of 12 hours in filing the complaint itself is sufficient to show that in all probabilities the cross complaint was nothing but counterblast to the complaint earlier filed by the accused Namdeo (complainant in cross case). Persual of the entire evidence in this case is unable to inspire confidence and it is sufficient to show that the accused persons in this case cannot be held guilty for the offences punishable under Section 147, 427 r/w 149 of the Indian Penal Code and therefore, we are of considered view, that all the accused persons in this case are entitled to be acquitted and therefore, the appeal is to be allowed.
14. For the reasons recorded above we hereby dispose of all the appeals by this common judgment.
Criminal Appeal Nos. 439 of 1998, Criminal Appeal No. 440 of 1998, Criminal Appeal No. 557 of 1998 and Criminal Appeal No. 558 of 1998 are partly allowed. Accused Nos.1, Shankar, Accused No. 2 Sadashiv, Accused No. 3 Vishwanath, Accused No. 4 Haribhau, Accused No. 5 Hemant, Accused No. 6 Sanjay, Accused No. 7 Jayant and Accused No. 18 Chintaman are liable to be convicted for the offence punishable under Section 302 r/w 149 of the Indian Penal Code and the order passed in that regard by the learned trial judge stands confirmed.
Accused No. 1 Shankar is liable to be convicted for the offence punishable under Section 25(1)(a) of the Arms Act and order passed by the learned Trial Judge in that regard stands confirmed.
All accused persons are however, acquitted of the offences on the charge under Section 147, 148, 452 r/w 149, 307 of I.P.C. and order of conviction and sentence passed against them under these counts stands set aside.
At this stage the learned counsel for the Appellants submitted that Accused No. 3 Bishwanath, Accused No. 4 Haribhau, Accused No. 5 Hemant, Accused No. 6 Sanjay, Accused No. 7 Jayant and Accused No. 18 are on bail while Accused No. 1 Shankar and Accused No. 2 Sadashiv are in jail. Therefore, it is directed that the bail bonds of Accused nos. 3 to 7 and 18 stand cancelled and they shall surrender to the Trial Court to undergo the sentence within four weeks from the date of this Order.
Appeal No. 443 of 1998 is hereby allowed and the order of conviction passed against the accused persons in that case stands set aside and all the accused are acquitted of the charge levelled against them and shall be set at liberty forthwith, if not required in any other case.