Unlawful assembly liability for two murders and injuries was upheld against three accused, and reduction to culpable homicide was refused. The acquittals challenged by the State were left undisturbed as a possible view. All appeals were dismissed.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
Cri. Appeal No. 151/17 & Ors.
1
IN THE HIGH COURT AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD
CRIMINAL APPEAL NO. 151 OF 2017
....Appellants.
Versus
....Respondents.
Mr. Joydeep Chatterji, Advocate for appellants. Mrs. D.S. Jape, APP for respondent No. 1/State.
WITH
CRIMINAL APPEAL NO. 494 OF 2018
State of Maharashtra Through Police Station Renapur, Dist. Latur.
....Appellant.
Versus
Cri. Appeal No. 151/17 & Ors.
2
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3
Age 30 years, Occu. Labour,
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4
Mrs. D.S. Jape, APP for appellant/State.
Mr. Joydeep Chatterji, Advocate for respondents.
Mr. S.J. Salunke, Advocate for respondent Nos. 1 to 7, 41 and 42.
Mr. Pathan Tahiwar Khan Wajeed, Advocate for respondent Nos. 8 to 11.
Appeal is admitted only against respondent Nos. 1 to 11, 41 and 42 as per order of Hon'ble Court dated 18.7.2018.
WITH CRIMINAL APPEAL NO. 740 OF 2018
Cri. Appeal No. 151/17 & Ors.
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Versus
Mr. R.D. Biradar, Advocate for appellant.
Mrs. D.S. Jape, APP for respondent No. 1/State.
CORAM : T.V. NALAWADE AND K.K. SONAWANE, JJ. RESERVED ON : 13/08/2019. PRONOUNCED ON : 11/09/2019.
JUDGMENT : [PER T.V. NALAWADE, J.]
Cri. Appeal No. 151/17 & Ors. 6
the matter as against accused No. 4 Firoz Rahimkha Pathan was sent
to Juvenile Court after holding him guilty for the offence punishable under sections 302, 324, 149 etc. of Indian Penal Code (hereinafter referred to as 'IPC' for short) and under the Juvenile Justice (Care and Protection) Act, the learned Chief Judicial Magistrate, the Presiding Officer has directed Firoz Pathan to do some social work for the period of one year and pay some compensation to the legal heirs of the deceased. The learned Additional Sessions Judge has convicted accused No. 1 Nasir Osman Pathan, Accused No. 2 Basaroddin Kazi and accused No. 3 Shaikh Munir for the offence punishable under section 302 r/w. 149 of IPC and they are sentenced to suffer imprisonment for life. They are also convicted for the offence punishable under sections 324 r/w. 149, 504 r/w. 149 and sections 147 and 148 of IPC. Separate sentences are given by the learned Additional Sessions Judge for these offences.
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it is numbered as Criminal Appeal No. 740/2018. All the sides are heard.
The crime was registered on the basis of report given by Shankar Pende, who is residing in front of Hanuman Mandir, Pangaon, Tahsil Renapur, District Latur. He belongs to Yellam community and at the relevant time, he was living with his two brothers, parents and sisters in the same building, though in different portions.
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at the distance of around 10 feet. from Balaji and Bhaguram. Along with the informant, Dhondiram Sherkhane, Indrajeet Sampate and Dharmaraj Sampate also started proceeding towards police chowky for giving report. That was at about 10.30 p.m.
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forward to save the life of Bhaguram and Balaji and then Yunus Pathan gave blow of knife on the right leg of informant and Munir Shaikh and Firoz Pathan gave beating by using sticks. After hearing hue and cry, many persons rushed to the spot and they separated the quarrel.
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11
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to the spot where the incident is taking place and they remain present on the spot as passive spectators. Due to all such possibilities, various circumstances which can lend credence to the version of eye witness need to be established by the prosecution.
12
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No. 1 as to why he was defecating there in open space. Evidence is given by PW 1 that Bhaguram said that even the lady members of his family were passing by that side. PW 1 has deposed that due to questioning of Bhaguram, there was exchange of words between Bhaguram and accused No. 1. PW 1 has given evidence that while leaving the place, accused No. 1 gave threat to victim to teach him a lesson.
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quarrel took place or to show that he had rushed to the spot after hearing about first quarrel.
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way goes through Khatik Galli. Their evidence shows that other persons like Indrajeet and Dharmaraj were also in their company, but they were at some distance from Bhaguram and Balaji when the incident started.
15
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and other accused also assaulted the two deceased with wooden logs, sticks. PW 1 has deposed that due to this assault, both the deceased collapsed on the spot of offence. Thus, Shankar (PW 1) has attributed specific role to accused Nos. 1 and 2, but so far as the assault made on Bhaguram and Balaji by other accused is concerned, there is general evidence against the remaining accused.
16
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Balaji to hospital, but both of them died. He has deposed that when he learnt from Sandeep Ghude about the death of aforesaid relatives, he went to Renapur Police Station and gave report. The report is proved as Exh. 185. He has deposed that after registering the crime, he was referred to Renapur Rural Hospital for treatment. He has deposed that he showed the spot of offence to police on 27.12.2008. In the Court he identified all the accused persons and defence did not dispute that he could identify all the accused. His version that he knew all the accused from prior to the date of incident is not disputed by the defence. Shankar (PW 1) has then given evidence that other accused instigated by uttering the words like 'gkuk] ekjk' [beat, kill].
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present matter. The evidence of aforesaid nature which is hit by material omission cannot be used in the case like present one to infer that the other accused, who were not holding the weapons had become the members of unlawful assembly. On the basis of other circumstances, it needs to be ascertained in the present case whether all the remaining accused had taken part in beating and such injuries were found on the prosecution witnesses or the dead bodies. It is also necessary to ascertain whether against other accused there is evidence to corroborate like recovery of weapons, presence of blood stains on the clothes etc. It is already observed that the relationship of such accused with the main accused and their connection to the motive also need to be considered as those circumstances also can connect such accused with the main accused
can help the prosecution to prove that they had become the members of unlawful assembly.
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others by saying that people of Yellam community had become arrogant and lesson needs to be though to them, is considered and that part of evidence given as against accused No. 1 is ignored, to other part of oral evidence, there is corroboration of F.I.R.
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there are houses adjacent to the spot of offence, the light from those houses comes to the street. Further, when there is evidence of eye witness who knew the assailants, Court can safely believe the evidence if his evidence is credit worthy and has corroboration of circumstantial evidence. Even in the dark, in the month of December in the light of stars a person can identify other person who is known to him from such close distance.
20
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community. He has given evidence that when the mob thought that Dhondiram and Balaji were dead, the mob left the place. Though in the evidence of Dhondiram it is brought that attempt was made to save the life of two deceased by shifting them to the hospital, not much can be made out of the circumstance that Dhondiram felt that Bhaguram and Balaji died on the spot.
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section 164 of Cr.P.C. and evidence given by him before Juvenile Justice Board were confronted. The statement given by him under section 164 of Cr.P.C. gives general corroboration to his version given in the present matter on material points. The inconsistencies pointed out to him during his evidence by the defence are not that material and due to those inconsistencies, it is not possible to discard his evidence. The police statement of this witness was recorded on 28.12.2008, but his name was mentioned in the F.I.R. by PW 1 immediately on 27.12.2008.
22
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witnesses. It is brought on the record in the evidence of PW 3 that the main incident took place out of trivial reason. All the three witnesses have given the same reason for the incident. No probability is created by the defence that there was any particular reason for any of the three witnesses to falsely implicate accused Nos. 1 to 4 or accused No. 48.
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such circumstance, sustaining of some serious injury or use of dangerous weapon by the prosecution witnesses, is established, there is no burden on the prosecution to explain the injuries which were allegedly caused to the accused. When many persons are involved in the incident and many assailants are assaulting one person, there is bound to be resistance from the victim and in such a case, some minor injuries are bound to be there to the other side. No other inference can be drawn in the present case.
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Exhs. 232 and 233.
"(i) Punched out wound on left forehead measuring 2 x 1 cm, bone deep.
(ii) Incised injury on left parietal region, 5 x 1 cm, bone deep oblique.
(iii) Stab injury over left upper abdomen (hypocondriac) transverse oblique, zig zag clear cut, measuring 10 x 5 cm., opening into obdminal cavity. Intestinal coils with mesentry protruding out and blood oozing.
(iv) Stab injury over lumbar region of back left side, transverse measuring 6 x 1.5 cm., opening to abdominal cavity tailing medically.
(v) Small incised injury over right hand thiner eminence 1 x 0.2 cm.
(vi) Red abrasion over (a) left lumbar region 7 x 0.5 cm. (b) left hand dorsally 2 x 0.5 cm."
All the injuries were antemortem.
According to PW 6 the external injuries had caused following internal injuries.
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(i) Minimal hamatoma under neath injuries over left forehead and parietal region.
Corresponding to stab injuries, injures to corresponding wall and peritoneum mesentry clean cut at two places 5 cm and 3 cm gaping. Hemoperitoneum 3.5 litres including cluid blood and clots contaminated with intestinal contents.
Incised injuries at two places opening into lumen mucosa everted.
Perinepheric hematoma on right kidney. Retro peritoneal hemorrhage with mesentric hemorrhage."
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(i) Red abrasions (a) over right mandibular body lower margin 0.5 x 4 cms.
(f) Left thigh linear vertical posterio laterally upper third 15 cm.
(ii) Stab injury over left chest mid clavicular region situated 7.5 cm. below left clavicle vertical 4 x 2.5 cm. opening into chest cavity subcutaneous tissue exposed in lateral part. Angle and margins clean cut. Blood coming out fish tail appearance at lower medial aspect. Left rib fracture.
The injuries were antemortem and fresh.
Dr. Shelke (PW 6) has deposed that he found following internal
injuries on the dead body of Balaji :-
(i) Minimal hematoma corresponding to stab injury
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left intercostal muscles and third coastal cartilage clearly cut in an area 0.5 to 1.00 cm. x 3. cm. Vertical oblique left lung exposed.
(ii) Hemothorax 1.4 litre blood and clot in right and 1 litre in left.
(iii) Larynx, Trachea and Bronchi were intact.
(iv) Corresponding to stab injury following internal injuries found.
(a) Left lung upper lobe anterior margin with incised injury 1 cm. Pericardium clearly cut vertically over left and anterior aspect.
(b) Right ventricle showed perforating clean cut injury. Wound of entry 4 cm. gaping over antrior aspect of right ventricle opening into cavity, wound of exit posterior aspect of right atrium minimally gaping 3 cm. Heart almost empty. Another stab injury to right ventricle 1 cm. below dound of entry measuring 1 cm. with minimal gaping. Right lung shows stabinjury near hillium going laterally in middle lobe 2 cm. Minimal gaping at entry. Reaching up to sub pleural space.
Direction of stab :- Antero posterially left to right, supero inferiorly.
Right lobe contused 2 cm. above anterior inferior
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border 0.5 x 10 cm.
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dangerous weapons and they assaulted two deceased persons. Considering the time taken for the incident which was 2-4 minutes and which is brought on the record by the defence, not much can be made out due to the circumstance that the prosecution witnesses have not given positive evidence that these two accused inflicted more blows. It needs to be kept in mind that as many as five persons were holding the weapons and they were assaulting the two deceased and PW 1. In such a case, it is not possible even for injured eye witness to describe each and every blow of weapon given to the deceased. This Court holds that due to these circumstances, the evidence of PW 1 to 3 cannot be discarded. On the contrary, it can be said that even when there were many injuries on the dead body of Bhaguram, PW 1 did not make an attempt to give specific role to other accused persons in that assault. When there is specific evidence that only few accused used dangerous weapons and there is medical evidence of aforesaid nature, not much can be made out due to such circumstance in favour of the accused. This Court holds that the aforesaid medical evidence gives necessary corroboration to the direct evidence of aforesaid three witnesses given on the murders of Bhaguram and Balaji.
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Shankar (PW 1) in the incident. The injury certificate is proved as Exh. 238. He found following injuries on the person of Shankar (PW 1) :-
(i) An incised wound, deep, reddish oblique, to medial aspect of right knee joint, clean cut margins everted oblique in direction. The size of the injury was 3.5 x 2 x 2 cms., caused by sharp and hard object.
(ii) A contusion, superficial, reddish brown to dorsum of right hand, diffused margins, oval in shape. The size of the injury was 4 x 2 x 1 cms., caused by hard and rough object.
(iii) An abrasion superficial reddish brown in colour to the nep of the neck on left side, distorted margins vertical. The size of the injury was 5 x 2 x 1 cms., caused by hard and rought object.
(iv) A blunt trauma to the left thigh.
Dr. Dandade has given evidence that the age of the injuries was within six hours. Exh. 238 shows that PW 1 was examined on 27.12.2008 at about 4.20 a.m. This medical evidence is also consistent with the oral evidence of PW 1 and also with the evidence
of PW Nos. 2 and 3. This evidence also gives necessary corroboration to the versions of PW Nos. 1 to 3.
Cri. Appeal No. 151/17 & Ors.
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memorandum of statement, this accused took police and panchas to his house and from his house, he produced weapon knife which is at Article 14. This article was seized under panchanama at Exh. 221 as per the version of this witness. He has given similar evidence against accused No. 1 Nasir. According to him, Exh. 222 is memorandum of statement and Exh. 223 is panchanama of seizure of knife produced by this accused from his house. Article 13 was produced by accused No. 1 as per the version of this witness. He identified both the accused in the Court. There is evidence on memorandum statements and also seizure panchanama of the Investigating Officer also. Though PW 4 belongs to Yellam community, only on that ground his evidence cannot be discarded. From the nature of evidence given by him, this Court holds that he was not interested witness. The weapons were recovered on 31.12.2008. There is evidence of Investigating Officer Ranjalkar (PW 10) that after recovery of these weapons the weapons were sent to C.A. Office.
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The evidence on record shows that these samples were forwarded to C.A. Office along with covering letter. This record shows that blood group of Balaji was 'A'. But the blood group of Bhaguram could not be ascertained as the results of C.A. were inconclusive. Evidence is given that blood of accused No. 1 was collected and as per the record, blood group of this accused is 'AB' (Exh. 259). The evidence shows that the blood of accused No. 2 is of group 'B' (Exh. 263). Thus, the evidence on discovery of weapons on the basis of statements given by accused Nos. 1 and 2 under section 27 of Evidence Act and the presence of blood on the weapons is available as circumstantial evidence and that gives more corroboration to the direct evidence.
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No.2 and the chargesheet came to be filed in the year 2009 for offences punishable under sections 336, 324 and 149 of IPC. As already observed, even after consideration of such record, it is not possible to infer that there was free fight or there was exercise of right of private defence by the accused persons. When the prosecution proves that accused persons had used dangerous weapons, they committed two murders and when there is evidence to show that they caused injuries to eye witnesses by using dangerous weapons, in absence of the necessary material as observed already, it is not possible to infer that there was either free fight or prosecution witnesses were aggressors.
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spot of offence was away from the place of residence of accused, it is easy to infer that these five accused persons had formed unlawful assembly and the object of the unlawful assembly was to assault the two deceased persons. Three accused used dangerous weapons. In view of nature of evidence and the aforesaid circumstances, there is no other inference possible than to infer that injuries were inflicted intentionally by these accused. These injuries proved to be sufficient to cause the death in ordinary course of nature. For all these reasons, this Court holds that accused Nos. 1 to 3 who are convicted and sentenced by the Trial Court are liable for conviction for offences of murder of Bhaguram and Balaji punishable under section 302 r/w. 149 of IPC. For the same reason, this Court holds that they are also guilty of the offence of causing simple injury to PW 1 punishable under section 324 r/w. 149 of IPC. Thus, it is not possible to interfere in the decision given by the Trial Court against accused Nos. 1 to 3. They are convicted for the offences punishable under sections 504, 147, 148 etc. of IPC. It can be said that the Trial Court could have avoided to convict accused No. 3 for the offence punishable under section 148 of IPC in view of nature of weapon used by him. However, the sentences will run concurrently and no fine is imposed by the Trial Court and so for that reason it is not necessary to disturb any part of the decision given by the Trial Court.
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every case are always different. In all the cases either number of persons involved is different or number of injuries found on the deceased is different. There may be difference in use of weapons and the site chosen for assaulting. All the circumstances are required to be considered and medical evidence plays important role while ascertaining the offences committed in such cases. That part of evidence is carefully considered by this Court and so, this Court holds that the observations made by the Apex Court in the case cited supra cannot help the convicted accused. In the present matter, the learned counsel placed reliance on two more cases reported as 2011 ALL MR (Cri) 1874 [Sitaram Tukaram Masulkar Vs. State of Maharashtra] and 2011 ALL MR (Cri) 1800 [State of Maharashtra Vs. Raju s/o. Bhagwan Kothimbire & Ors.]. Facts of these two reported cases were also different and for the same reasons, this Court holds that observations made by this Court in the cases cited supra can be of no help to the convicted accused.
(i) AIR 1987 SC 1083 [Tota Singh and Ors. Vs. State of Punjab],
(ii) AIR 2010 SC 2147 [Daya Kishan Vs. State of Haryana], and
(iii) AIR 1965 SC 202 [Masalti Vs. State of
Cri. Appeal No. 151/17 & Ors.
38
U.P.].
In two cases, the Apex Court has considered the limitation of Appellate Court while deciding the appeal against acquittal. The Apex Court has also discussed the use of provision of section 149 of IPC. There is no dispute over the proposition made in the two cases.
This Court has also come to the conclusion that the view taken in favour of acquitted accused by the Trial Court is a possible view and so, no more discussion is necessary in respect of observations made in these cases. In the result, all the appeals stand dismissed.
[ K.K. SONAWANE, J.] [T.V. NALAWADE, J.]
ssc/
3 issues framed by the court
Were the convictions for murder and hurt with unlawful assembly liability sustainable against the three convicted accused?
Should the murder convictions be reduced to culpable homicide under section 304 Part II IPC?
Did the acquittals challenged by the State warrant appellate interference?
Colour shows how this judgement treated each authority
Kulwant Rai Vs. State of PunjabDistinguished¶259
AIR 1982 SC 126 [Kulwant Rai Vs. State of Punjab] · Who else cites this
Sitaram Tukaram Masulkar Vs. State of MaharashtraDistinguished¶262
2011 ALL MR (Cri) 1874 [Sitaram Tukaram Masulkar Vs. State of Maharashtra]
State of Maharashtra Vs. Raju s/o. Bhagwan Kothimbire & Ors.Distinguished¶262
2011 ALL MR (Cri) 1800 [State of Maharashtra Vs. Raju s/o. Bhagwan Kothimbire & Ors.]
Tota Singh and Ors. Vs. State of PunjabReferred¶264
AIR 1987 SC 1083 [Tota Singh and Ors. Vs. State of Punjab] · Who else cites this
Daya Kishan Vs. State of HaryanaReferred¶265
AIR 2010 SC 2147 [Daya Kishan Vs. State of Haryana] · Who else cites this
Masalti Vs. State of U.P.Referred¶266
AIR 1965 SC 202 · Who else cites this
7 provisions across 2 enactments
Nasir Osman Pathan
Basaroddin @ Munna Nasiroddin Kazi @ Sidhaqui
Shaikh Munir Shaikh Noor
The State of Maharashtra
Veenabai Bhaguram Pedde
State of Maharashtra Through Police Station Renapur, Dist. Latur.
T.V. NALAWADE
K.K. SONAWANE
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
