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PETITIONER: ANANTA KATHOD PAWAR & ORS.

       Vs.

RESPONDENT: THE STATE OF MAHARASHTRA

DATE OF JUDGMENT:       14/08/1997

BENCH: M.K. MUKHERJEE, S. SAGHIR AHMAD

ACT:

HEADNOTE:

JUDGMENT:                 THE 14TH DAY OF AUGUST, 1997 Present:              Hon’ble Mr. Justice M.K. Mukherjee              Hon’ble Mr.Justice S.Saghir Ahmad I.G.Shah,  V.N.Ganpule,  Sr.Advs.,  A.M.Khanwilkar,  Kailash Vasdev, (D.M.Nargolkar) Adv. for S.M.Jadhav, Adv./Advs. with them for the appearing parties.                       J U D G M E N T      The following Judgment of the Court was delivered:                       J U D G M E N T MUKHERJEE,J.      The 6  appellants before us and 5 others were arraigned before the  Additional Sessions  Judge, Thane  for  rioting, atternpting to  commit murder  and other  related  offences. The trial ended in convictions of all of them under Sections 148, 324/149,  324/149 I.P.C.  and  sentences  of  different terms of  imprisonment.   In appeal, the High Court affirmed their convictions  but reduced  the sentences  to the period already undergone  and imposed a fine of Rs.250/- each.  The above judgment  of the High Court is under challenge in this appeal. 2.   According to  the prosecution  on June 24, 1978 between 7.00 and  7.30 A.M.  the accused  persons formed an unlawful assembly armed  with swords, spears, iron rods and sticks in village Arwali  with the common object of assaulting Tukaram (P.W.2), Ballaram  (P.W.3), Gajana  (P.W.4), Vasant (P.W.5), Ankush (P.W.6),  Nagubal  (P.W.7),  Ganpat  (P.W.8)  and  of attempting to  commit the  murder of Pundalik (P.W.9) and in prosecution  of  the  said  common  object  used  force  and violence against all of them. 3.   The defence  of the accused persons was that it was the complainant party  which attacked  them with various weapons as a  result of  which one  of them,  namely, Haribhau  died while others  sustained injuries.  According to the defence, to save their skin they filed a false case against them. 4.   On consideration  of the evidence adduced during trial, the trial Court held that the incident did not take place in the manner  alleged by the prosecution witnesses.  The trial Court further  held that having regard to the injuries found on the persons of the accused and the fact that one of them,

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namely, Haribhau  succumbed to  the injuries,  it was  clear that there was a free fight between the two groups, each one coming armed  with weapons.   The  trial Court observed that every prosecution witness tried to feign ignorance about the injuries sustained  by some  of the appellants and about the cause of  death of  Haribhau.    It  then  referred  to  the judgment of  this Court  in Lakshmi Singh Vs. State of Bihar [AIR 1976 Supreme Court 2263] and concluded as under:      "If these principles are applied to      the facts  of the  present case, it      can be  said that  the  prosecution      has  suppressed   he  genesis   and      origin of  the occurrence  and  has      not presented  the true  version as      to how  the incident  started.   It      can  equally   be  said   that  the      prosecution witnesses  are  telling      lies on material points." 5.   In our considered view, with the above observations and findings, the  trial Court  was  not  at  all  justified  in convicting the  appellants for  rioting  or  for  the  other offences  with   the  aid  of  Section  149  I.P.C.  Equally untenable is  the High  Court’s  affirmation  of  the  above convictions for  the evidence  on record clearly establishes the findings  recorded by  the trial  Court.  Once the trial Court found  that there  was a sudden and free fight between the two groups in which members of both the groups sustained injuries, the trial Court should have held that there was no scope for  convicting members  of one  of those groups under Sections  147  or  1481  I.P.C.  and  for  that  matter  for substantive offences  with the aid of Section 149 I.P.C.  In such a  case, the  accused persons would be liable for their individual acts and would not be liable vicariously.  In the instant case,  we are  unable to  convict the appellants for their individual  acts also  as no specific evidence was led by the prosecution in that regard. 4.   For the foregoing discussion, we allow this appeal, set aside the  impugned order  of convictions  and sentences and acquit the  appellants of the charges levelled against them. The fine if paid, be refunded to the appellants.