http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 7  

PETITIONER: ANSARAM RAMBHAU YOLVE & ORS.

       Vs.

RESPONDENT: STATE OF MAHARASTRA

DATE OF JUDGMENT:       12/02/1996

BENCH: MUKHERJEE M.K. (J) BENCH: MUKHERJEE M.K. (J) KIRPAL B.N. (J)

CITATION:  JT 1996 (3)    24        1996 SCALE  (2)236

ACT:

HEADNOTE:

JUDGMENT:                       J U D G M E N T M.K. MUKHERJEE, J.      Eleven persons, including the right appellants in these appeals, were  indicted before  the Sessions  Judge, Beed in Sessions Case  No. 82  of 1982  for rioting  and murders and other  allied   offences  in  prosecution  of  their  common objects. The  trial ended  with an  order of  conviction and sentence under  Sections 325/149,  324/149, 323/149, 147 and 148 IPC  recorded against all of them and also under Section 304 (Part  I) IPC  against two  of them  namely, Bajirao and Dagdu and  of acquittal  in favour  of the  other three. The cross case  instituted against  some of the witnesses of the above trial  and others,  for rioting and assault, which was also tried  by the  Sessions Judge  (Sessions Case  No. 9 of 1983) however  ended in  an order  of acquittal  of all  the persons arraigned.  Against their  convictions and sentences the appellants  preferred two  appeals -  one by Bajirao and Dagdu and  the other  by the  rest. The  respondent-State of Maharastra also preferred an appeal against the acquittal of the appellants  in  respect  of  the  charge  under  Section 302/149 IPC.  A revision petition assailing the acquittal of the accused  persons in the cross case was also filed by the appellant Ansaram. All the above matters were heard together by the  High Court  and disposed  of by a common judgment by allowing the  appeal of  the State  and dismissing the other two  appeals  and  the  criminal  revision  petition.  While allowing the  appeal of  the State, the High Court convicted all the  appellants under Sections 302/149, 325/149, 324/149 IPC and  sentenced them  to different terms of imprisonment, including  life,   and  fine,  with  a  direction  that  the substantive sentences shall run concurrently. The High Court also convicted  five of the appellants under Section 148 IPC and the  other three  under Section  147 IPC but no separate sentence was  passed  for  these  convictions.  The  present appeals have  been filed  by the  appellants,  in  different sets,  under   Section  379   Cr.P.C.  and   Supreme   Court

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 7  

(Enlargement of  Criminal Appellate  Jurisdiction) Act, 1970 assailing the above judgment of the High Court.      We may  at the  outset point  out that  Mr. Lalit,  the learned counsel appearing on behalf of the appellants fairly conceded that  one of these appeals, namely, Criminal Appeal No. 825  of 1985  which has  been  filed  by  the  appellant Ansaram challenging  the dismissal  of his revision petition against the  order of  acquittal in the cross case could not have been  filed either under Section 379 Cr.P.C. or Supreme Court (Enlargement  of Criminal Appellate Jurisdiction) Act, 1970. We, therefore, dismiss Criminal Appeal No. 825 of 1985 as not maintainable.      Before we  proceed to  consider the  facts on which the parties have  joined issue,  we may  refer  to  those  which remain  uncontroverted.  The  appellants  Bajirao,  Ansaram, Dadarao, Sarjarao  and Haribhau are real brothers being sons of late  Rambhau Yelve. Of the other three appellants, Dagdu is the  son of Haribhau, Mantaram is the son of the mother’s sister of  Bajirao and  Achit is the servant of Dadarao. The sons of  Rambhau (hereinafter  referred to  as the ‘Yelves’) own survey  No. 313  of village  Gujarwadi. To the adjoining north of this land is Survey No. 312, the eastern most strip of which  measuring 100’  x 40’,  was jointly owned by Gana, his son  Sopan (the  two deceased)  and  Nivrutti  (P.W.11), nephew of  Gana. To the immediate west of that strip of land are the  strips of  Dagdu, Devaibai  and Vithal  (P.W.1), in that order. Vithal also owns a small strip of land adjoining Gana’s land on the north. In between the lands of Yevles and Gana runs  a small  Nala which is about 10 feet wide. On the southern bank  of the Nala, that is, on the northern bank of the land of the accused there is a thick cactus growth.      According to  the case  of the  prosecution even though the land  under the Nala was exclusively owned and possessed by Gana,  his  son  and  nephew  the  accused  persons  were disputing his  such  claim  and  on  August  16,  1982  they uprooted cactus  plants along  12 feet and replanted them on the southern  bank of the Nala, apparently for extending the boundary of their land.      The prosecution  version as regards the incident of the murderous assault  is that on the following day, that is, on August 17,  1982 at  or about 7 A.M, Gana, Sopan and Nivruti (P.W.11) went  to their  land to  see the damage done by the accused persons on the previous day. While they were engaged in inspecting  removal of  the plants,  the accused  persons came there  variously armed,  While five  of them  (who  are amongst the appellants herein) were armed with axes the rest were armed  with sticks. Reaching there they surrounded Gana and Sopan  and started  beating them  with their  respective weapons. The  two victims raised alarms and hearing the same Vithal (P.W.1),  Jalinder (P.W.2),  Narayan (P.W.3), Eknath, Devaibai and Appa who were present in their respective lands nearby rushed to the scene. Three of them, namely, Nivrutti, Jalinder and Eknath were also beaten up by the accused. Gana and Sopan  who had in the meantime fallen down on the bed of the Nala  were then  removed by  the accused  to the  common bandh nearby  where they were further assaulted resulting in instant death  of Sopan and death of Gana a few hours later. Information about  the incident  was given  to the police by Vithal (P.W.1) and on that information a case was registered against the  accused persons  which ultimately  ended  in  a chargesheet.      The accused  persons pleaded  not guilty to the charges levelled against  them and  their defence  was, as it can be gathered  from   the  first  Information  Report  lodged  by appellant Ansaram  (which gave  rise to the cross case), the

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 7  

statements made  by them  in their examination under section 313 Cr.P.C.  and the  suggestions  put  to  the  prosecution witnesses, that  the Nala  in question  did not  exclusively belong to  the deceased  but was  in possession  of both the parties. On  August 16,  1982 the  two deceased and Nivrutti had tried  to uproot  the cactus plants from the boundary of their land,  but owing  to the  resistance  offered  by  the servants and  the ladies  of their  household they  had fled away. As  regards the  incident of  August  17,  1982  their version was that the appellants Bajirao and Ansaram had gone to their field to see the damage done to their cactus growth and the appellants Dagdu and Achit had taken bullocks to the field for  grazing. Reaching  there they  found Gana, Sopan, Nivrutti, Eknath  and Julinder  present in  their land armed with axes and Gana cutting cactus from the boundary of their land. When  Bajirao remonstrated  with Gana as to why he was cutting the  cactus the  latter threatened  them  with  dire consequences. Thereupon  Gana and  Sopan started  assaulting Bajirao and Ansaram with axes. When the other two appellants present there rushed to their rescue Sopan, Eknath, Nivrutti and Julinder  joined Gana  in the assault. In the melee that ensued Bajirao and Dagdu snatched the axes from the hands of Eknath and  Nivrutti threw them there and straight away went to the  police station where Ansaram lodged information. The other four  appellants denied  there presence at the time of the incident  and  contended  that  they  had  been  falsely implicated.      On consideration  of the  evidence adduced during trial the learned  trial Judge held that the bed of the Nala along its entire width belonged to and was in actual possession of the two deceased only and that the appellants had nothing to do with  it. Regarding  the incident  of August 16, 1982 the learned Judge held that the appellants had tried to uproot a part of  their own  cactus growth and shifted it towards the north. So  far as  the main  incident of August 17, 1982 was concerned the  learned Judge  held that  the appellants  had formed themselves  into an  unlawful assembly to prevent the two deceased  and their  party from  restoring the  previous position of  the cactus growth and, therefore, it could only be said  that common  object of  that assembly  was to cause injuries and not to commit murder. In negativing the plea of right of  private defence  claimed  by  the  appellants  the learned Judge  observed that  neither side had presented the true version of the incident before the Court. In conclusion the learned  Judge constructed  his version  of the incident which is reproduced below:      "It is  therefore on  the basis  of      the   above    discussion   it   is      acceptable that  the eight  accused      Nos. 1  to  4  and  7  to  10  (the      appellants)  had   participated  in      this maramari.  They had gone there      to see  that the  deceased  do  not      uproot the  cactus. Hence  they had      assembled there  for this  purpose.      When the  deceased and  others came      there was  a verbal altercation. So      at this  time these accused persons      would have  the  common  object  of      preventing  Gana   or  Sopan   from      uprooting  the  cactus.  Thereafter      the  exchange  of  words  developed      into Maramari.  Thus these  accused      had participated  in  the  Maramari      with an  object to prevent Gana and

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 7  

    Sopan from  uprooting  the  cactus.      Thus it  can be  accepted that  the      assembly had assaulted Gana, Sopan,      Nivrutti, Eknath  and  Jalinder  to      prevent  them  from  uprooting  the      cactus. It  can  also  be  accepted      that the  injuries  to  these  five      injured persons  were caused by the      members of  this unlawful  assembly      while  trying   to  achieve   their      object of preventing Gana and Sopan      from  uprooting  the  cactus.  Also      from the  earlier discussion it can      be accepted that initially only the      Maramari with  sticks  took  place.      Therefore from  these circumstances      accused can be accepted to have the      common object  of the  assembly  of      beating  with  sticks  and  causing      injuries  with   sticks.   It   can      therefore  be  accepted  that  when      Gana, Sopan,  Nivrutti, Eknath  and      Jalinder  resisted   and  had  also      caused injuries  to accused  Nos. 1      to 4  including injuries with sharp      edged weapon, the accused Nos. 1 to      3  used  axes.  Hence  under  these      peculiar   circumstances    it   is      difficult to accept that the common      object of the assembly was to cause      injuries which  would be sufficient      in normal course of nature to cause      death.  This  is  made  more  clear      because only  one incised injury is      caused to Gana and only the incised      injuries are caused to Sopan on his      head. One  incised injury is caused      to  the   area   of   Sopan.   This      therefore  makes   out   that   the      intention of  the common  object of      the assembly could not have been to      cause  death   of  Sopan   or  Gana      otherwise  there  would  have  been      numerous incised injuries." In disagreeing  with the  ultimate order  of the trial Judge the  High   Court  first   referred  to   the  patent  legal infirmities appearing therein. It first pointed out that not only the conviction recorded against all the appellants both under Sections 147 and 148 IPC was legally impermissible but the learned  Judge did  not even care to ascertain whether a particular appellant  was carrying  a deadly  weapon  before invoking the later Section. The High Court then noticed that the  trial  Judge  had  given  the  benefit  of  the  Fourth Exception to Section 300 IPC to appellants Bajirao and Dagdu in utter  disregard of  the provisions  thereof and made the following observations:      "On reading it, even a laymen would      realise that  for attraction of the      exception a  number  of  conditions      must be  fulfilled. The death ought      to be  caused in  a  sudden  fight,      without premeditation,  in the heat      of passion,  upon a sudden quarrel.      Then the  offender should  not have      taken any  undue advantage or acted

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 7  

    in a  cruel or  unusual manner.  We      may repeat  that the  two  deceased      had  each  sustained  more  than  a      dozen of  injuries.  It  is  common      ground that the dispute between the      two sides  over the  Nala, had been      smouldering for  a number of years.      The learned  Judge expressly  holds      that  the   accused   persons   had      appears on  the scene  of 17th with      the avowed  object of  resisting by      force any  attempt on  the part  of      Gana  and   party  to  restore  the      cactus hedge to its original place.      It is difficult to appreciate how a      fight     arising      in     these      circumstances could be legitimately      termed   as    a   fight    without      premeditation  or   in  a  heat  of      passion or upon a sudden quarrel." The High  Court next  held  that  the  appreciation  of  the evidence  by   the  trial  judge  was,  to  say  the  least, superficial and  ambivalent and  to draw such conclusions it referred to various observations made by him. The High Court then  proceeded   to  discuss   the  evidence  and  on  such discussion held that the finding of the trial Court that the land under  the Nala  exclusively belonged  to  and  was  in possession of  Gana and  that the appellants had no right to it, possessor  or proprietary  was correct and, consequently the appellants  had no right of private defence of property. The next  question which  the High Court posed for an answer was whether  the appellants  could claim  right  of  private defence of  their persons  in the  context of  the fact that four of them had sustained some injuries in the incident. To answer this  question the  High Court discussed the evidence of the eye witnesses and held that having regard to the fact that on August 16, 1982 the accused persons had uprooted the cactus and  thorny fencing, it was evident that their object was to  consolidate the  encroachment on  Gana’s land  right upto northern  bank. Judged  in that background, it could be safely concluded  that when  on the  following day they came armed with  axes and  sticks and  inflicted 40  injuries  on their adversaries,  they were the aggressors. As regards the injuries found  on the  person of the accused the High Court observed that  they  were  minor  and  superficial  and  the evidence on record was so clear and cogent to prove that the appellants were  the aggressors  that it  far outweighed the effect of  the omission  on the  part of  the prosecution to explain the  injuries. In  making the above observations the High Court drew inspirations from the judgment of this Court in Lakshmi  Singh vs.  State of  Bihar AIR  1976 SC 2263 and Ramlagan Singh  Vs. State  of Bihar AIR 1972 SC 2593. Lastly the High  Court took  up the  question as  to what  was  the common object  of the  unlawful assembly  which  caused  the death of  Gana and  Sopan and injured others. The finding of the High Court in this regard is as under:      "The extent of violence indulged in      by them  and the  damage brought on      Gana and  party,  loaves  no  doubt      about  the  common  object  of  the      Assembly. Needless  to say,  it was      to commit murderous assault on Gana      and his associates. The lower Court      has resorted to a strange reasoning      for its  conclusion that the common

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 6 of 7  

    object was  restricted  to  causing      ordinary injuries only. The learned      judge observes that had the accused      persons really  intended to  commit      murderous assault,  then they would      not have  spared lives of Jalindar,      Eknath,   Nivrutti,   Vithal,   his      brother Munja,  Devaibai and others      who had  come to  the rescue of the      deceased. The  learned  Judge  also      feels that if the common object was      to commit  murder,  the  assailants      would have  dealt greater number of      axe  blows  on  the  heads  of  the      deceased  and   other  victims   of      assault.   We    cannot    persuade      ourselves  to  endorse  this  queer      reasoning.  The  learned  Judge  is      pegging  his  standards  too  high,      when he  thinks that  the  assembly      would have  killed  all  the  eight      persons or at least used their axes      mofe liberally  than they  actually      did, if  the common  object was  to      mount  a   murderous  assault.   We      reiterate  our   finding  that  the      performance  of   the  assembly  is      spectacular enough  to credit  them      with   the    common   object    of      committing  murderous  assault.  As      the barest minimum, the members did      know that  it was quite likely that      in an  assault by  a group of eight      armed with  axes  and  sticks,  the      offence   or    murder   could   be      committed.  The   latter  part   of      Section   149   IPC   also   stands      squarely attracted." We have  heard the learned counsel appearing for the parties and have  considered the  judgments  in  the  light  of  the evidence on  record. In  view of  the concurrent findings of the learned  Courts below,  that the deceased were the owner and in  possession of  the land  under the Nala and that the appellants had  no  right,  title,  interest  or  possession therein it  must  be  held  that  the  appellants  were  not entitled to  any right  of private  defence of  property. As regards the  manner in  which the  incident took  place  the prosecution rested  its case upon the evidence of Vithal (PW 1), Jalinder  (PW 2),  Narayan (PW 3), Eknath, Nivrutti, (PW 11). Their claim that they had witnessed the incident stands corroborated by the fact that they were named as the rioters in the  counter case.  The fact  that Nivrutti  (PW 11), and Jalinder (PW2)  sustained injuries in the incident also goes a long  way in  support of  the  probative  value  of  their evidence.  Their   evidence  unmistakably  proves  that  the appellants had  come to  the field armed with axe and lathis and attacked  the complainant  party without any provocation whatsoever.  When  their  evidence  is  road  alongwith  the medical evidence  that the  injuries sustained  by the  four accused were  minor and  superfluous, it  cannot but be said that the  finding of the High Court that the appellants were the aggressors  and therefore,  they had  also no  right  of private defence of person is unexceptionable.      Coming now  to the  question as  to what was the common object of  the unlawful  assembly it  is  evident  from  the

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 7 of 7  

circumstances leading  to the  incident, the manner in which it took  place, the  weapons used and the nature, number and location of  the injuries  inflicted upon  the two  deceased that the  appellants had  come to  the field  for  murderous assault. The  High Court  was, therefore, fully justified in reversing the  finding of the trial Court in this regard and holding that the appellants shared such a common object.      Mr. Lalit  brought to  our notice quite a few omissions in the police statements of the eye witnesses as regards the lndividual role  played by  the appellants  in the  assault. Having carefully  gone through those admission we are unable to hold  that they  are material omissions, for they related only to the actual portions of the body where the individual appellants  inflicted   the   blows   and   not   to   their participation  in   the  assault   itself.  Mr.  Lalit  also strenuously  argued  before  us  that  even  if  the  entire prosecution case  was accepted  the appellants  Bajirao  and Dagdu who  assaulted the  deceased with  axes could  only be held liable  under Section  302 read  with Section 34 of the Indian Penal  Code for  they might have the common intention to cause  the death  of the  two victims but it could not be said that  all the  members of  the unlawful assembly shared such a  common object as they had only used sticks for which they could  be liable  under Section 325 or 323 IPC with the aid of Section 149 IPC. We do not find any substance in this contention for  the evidence on record clearly shows that it was only  after the two deceased were assaulted with axes by the two appellants that the other appellants started beating them with  lathis resulting  in a  number of injuries, which according to  the doctor  could be caused thereby, including fractures; and  that clearly indicates that they also wanted to ensure their deaths.      On the conclusions as above we do not find any merit in these  appeals,   which  are   accordingly  dismissed.   The appellants, who  are on  bail, will  now surrender  to their bail bonds to serve out the remainder of the sentence.