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PETITIONER: NAMDEO NANASAHEB MISAL, TANAJL GOVIND MISAL

       Vs.

RESPONDENT: THE STATE OF MAHARASHTRA

DATE OF JUDGMENT:       12/09/1997

BENCH: M. K. MUKHERJEE, M. JAGANNADHA RAO

ACT:

HEADNOTE:

JUDGMENT: Tanajl Govind Misal vs. The State of Maharashtra                             WITH             CRIMINAL APPEAL NOS. 501-502 OF 1987 Dadasahedb Patalu Misal V. The State of Maharashtra                             WITH             CRIMINAL APPEAL NOS. 503-504 OF 1987 Shrimant Vishwanath Misal V. State of Maharashtra                             WITH             CRIMINAL APPEAL NOS. 505-506 OF 1987 Babasahedb Chandu Misal & Ors. V. State of Maharashtra                             WITH             CRIMINAL APPEAL NOS. 507-508 OF 1987 Raosaheb Shripati Misal V. The State of Maharastra                             WITH             CRIMINAL APPEAL NOS. 509-510 OF 1987 Shahji Govind Misal V. The State of Maharashtra                             WITH             CRIMINAL APPEAL NOS. 511-512 OF 1987                       J U D G M E N T M.K. MUKHERJEE, J.      Twenty nine persons were arraigned before an Additional Sessions Judge of Solapur for rioting, two murders and other related offences.   The  trial Judge  convicted nineteen  of them under  Section 148, 302/149, 307/149 and 324/149 I.P.C. and acquitted  the rest.   For  the conviction under Section 302/149 I.P.C.   the  trial Judge  sentenced  three  of  the convicts to  imprisonment for life and the remaining sixteen to rigorous  imprisonment for  two years each and fine.  For

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the other  convictions he  sentenced them to different terms of  imprisonment   and  fine   with  a  direction  that  the substantive sentences shall run concurrently.  Assailing the above judgment  the nineteen  convicts filed  one  composite appeal.   The State also filed two appeals:  one for setting aside the acquittal of the ten accused persons and the other for enhancement  of the  sentences imposed upon the nineteen convicts.   A revision  application was  also filed  by  the complainant seeking  similar reliefs.   While  admitting the appeal of the convicts the High Court issued a suo motu rule calling upon them to show cause why their sentences recorded under Sections  302/149. 307/149  and 324/149 I.P.C.  should not be  enhanced.   In disposing  of all  the matters  by  a common judgment  the High Court set aside the convictions of five of  the nineteen convicts and upheld those of the other fourteen.   After upholding  the conviction  the High  Court enhanced the  sentences of  those convicts  who were imposed rigorous imprisonment  for two  years under  Section 302/149 I.P.C. to imprisonment for life.  Aggrieved by the dismissal of their  appeals the  fourteen convicts (who wee arrayed as A1 to  A8, A10,  A12, A13,  A17, A20  and A24 and henceforth will be  so referred to) have filed these appeals which have been heard together and this judgment will dispose of them. 2.   The prosecution case, briefly stated, is as under; (a)  In  village  Panchagaon  Khurd,  which  is  within  the jurisdiction of  Sangola Police  Station, there  is a  small uninhabited open  site (locally)  known as  ’Padik’) bearing Gram Panchayat No.106.  The above Padik along with the babul trees stating  thereon belonged  to and was in possession of Sheshappa Vithoba  Misal (P.W.15) and his associates.  On or about July  18, 1980  A1, A3, A5 and A6 cut some branches of those trees and left them there.  In the evening of July 29, 1980  P.W.15  and  some  of  his  associates  removed  those branches from  the Padik  and brought  them to  another open site near  the house  of one  Sida Pandurang.  When A6 asked P.W.15 about  such removal the latter replied that the trees belonged to  the.  He also questioned the right of A6 to cut them. (b)  On the  following morning  i.e. on  July 30, 1980 at or about 7  a.M. the  twenty nine  accused persons  along  with three more  namely, Dattu (since dead), Bhausaheb Sidram and appasaheb Saidram  (both absconding) came to the place where the branches were stacked, armed with deadly weapons such as axes, spears,  iron bars  and sticks  and  started  removing them.   On getting that information P.W.15, his brothers and associates reached  there and  asked the accused persons not to remove  the branches.  Immediately thereupon A1 inflicted an axe  blow on  the head of Ganpati felling him down.  When VIthoba went  to the  rescue of Ganpati, A2 inflicted an axe blow on  his head  who instantly  slumped  down.    All  the accused persons  then started assaulting Ganpati and VIthoba and other  members of the complainant party as a consequence whereof Ganpati and VIthoba breathed their last on the spot, while  Kashinath   (P.W.8),  Sarjarao   (P.W.12),  Murlidhar (P.W.14), Sheshappa (P.W.15) and Jalinder (P.W.17) sustained injuries.   During the  incident  A3  to  A7  also  received injuries (c)  Accompanied by  the other  four injured P.W.8 then went to Singola  Police Station  in  bus  and  lodged  the  First Information  Report   at  11.30  a.m.    In  course  of  the investigation  that   followed,  usual   steps  for  holding inquest,  preparing  panchnama  of  the  scene  of  offence, seizures of  blood stained  clothes were  taken and  the two dead bodies  were sent  to the  Medical Officer, Singola for autopsy.   All the  injured were  also sent  to the  Medical

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Officer   for    examination   and   treatment.      Certain incriminating weapons were also recovered at the instance of some of  the accused  persons during  investigation.   After completion of  investigation  the  police  submitted  charge sheet and  In usual  course the  case was  committed to  the Court of Session. 3.   The accused  persons pleaded  not guilty to the charges levelled against  them and  contended  that  they  had  been falsely implicated.   Some  of them  took the  plea of alibi while others,  through A1 gave a written statement detailing their version of the incident.  The version so given is that the open  space whereon babul trees grew belonged to some of them and  for years together they had been cutting the trees for using  them as fuel.  As in previous years, they had cut the tress  some 15  days prior to the incident and left them there to dry.  In the evening of July 29 1980 when A3 and A6 saw that some members of the complainant party were carrying those cut  branches in the bullock-cart of P.W.12, A3 and A6 accosted them  and asked  them not to do so.  Without paying any heed  to their objection, the members of the complainant party carried  the branches  to the  farm of  Sida Pandurang Misal and  kept them there.  A6 had then told them that they would take  away the branches on the next day.  Accordingly, when in  the following  morning A1 along with ten to fifteen persons were  going to the farm of Sida Pandurang Misal with axes and  sticks to remove the thorny branches, they saw the complainant party  approaching  them  armed  with  axes  and sticks.   While they  were at  some distance  from  them  A5 requested Ganpati  (P.W.2) to  be prudent  and get the claim regarding the  trees decided  by a  competent Court  of  law Instead of  heeding  to  his  advice,  the  members  of  the complainant party started beating them with sticks and axes. At that  stage they  9th accused  persons) attacked  them in self defence.   They  asserted that they had no intention to beat any  of the  persons of  the complainant  party.   They lastly stated  that A9, A11, A12, A14, A15, A18,  A19, A21, A22 and  A25 to  A28 were  not present at all at the time of the incident. 4.   From the respective cases of the parties narrated above the following  undisputed facts emerge: (i) On or about July 18, 1980  some of  the accused  persons cut some branches of babul trees  from the Padik and left them there; (ii) In the evening of  July 29,  1980 some  members of  the complainant party removed those branches from the Padik and brought them to another  open site  near the  house  of  Sida  Pandurang, inspite of  objections raised by some members of the accused party. At  that time,  one of  them namely A6 told that they would take  away the branches on the next day.; (iii) On the following morning  i.e. on July 30, 1980 at or about 7 A.M., some of  the accused  persons went  to remove those branches armed with  axes and  sticks; and  (iv) a  little  later  an incident of  assault took  place in which two members of the complainant party,  namely, Ganpati  and  Vithoba  met  with their  death  and  five  members  of  each  of  the  parties sustained injuries. 5.   With the above uncontroverted factual matrix, the trial Judge proceeded  to consider  the questions of fact on which the parties  had joined  issue.  On a detailed discussion of the evidence  adduced by  the prosecution  (no  witness  was examined on  behalf on  the appellants) the trial Judge held that the  complainant party  was in actual possession of the Padik and  the babul  trees standing  thereon and  that  the accused party  had  no  concern  whatsoever  with  the  said property so  as to  entitle them to exercise their purported right of  private defence  in respect  thereof.   The  trial

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Judge  further   held  that   the  accused  party  were  the aggressors and,  therefore, they  had no  right  of  private defence of  their bodies  also.   In effect he held that all the  nineteen   accused  (whom   he  convicted)  had  formed themselves into  an unlawful assembly with the common object of committing  the murders  and assault;    and  accordingly convicted them  in the manner stated earlier.  In appeal the High Court  re-appraised the  entire evidence  and concurred with each  of the  findings of  fact recorded  by the  trial Judge against the appellants. 6.   Mr.  Lalit,  the  learned  counsel  appearing  for  the appellants first  submitted that  the Courts below failed to appreciate that  the manner in which the incident took place and the  members of  both the parties sustained injuries was clearly  indicative  of  a  free  fight  between  them  and, therefore,  none  of  the  appellants  could  be  convicted. According to  Mr. Lalit, in case of a free fight an offender can be  made liable  for his  own act  and  not  vicariously liable for the acts of others. Mr. Lalit next contended that if it  was to  be held that it was not a case of free fight, the acts of the appellants would be protected by their right of private  defence of  their property  and persons.  At the worst it  could be  said that  some of  them  exceeded  such right, in  which case  only those appellants would be liable for punishment  under Section 304 and not 302 I.P.C., argued Mr. Lalit.  Mr. Lalit  lastly submitted  that  even  if  the entire case  of the  prosecution was accepted as true, still all the  appellants could  not be  said to  have shared  the common object  of committing  the  murders  of  Ganpati  and Vithoba.  In celebrating this contention Mr. Lalit submitted that from the manner in which - according to the prosecution - the  incident took  place it  was evident  that the  fatal blows inflicted  by A1  upon Ganpati  and by A2 upon Vithoba were their individual acts for which they could be convicted under  Section  302  I.P.C.  (simpliciter),  but  the  other appellants could  not be held liable for those acts with the aid of  Section 149  I.P.C. as  there  was  no  material  to indicate that  they shared  the common  object of committing such murders. 7.   So  far  as  the  first  contention  of  Mr.  Lalit  is concerned  law   is  now   well-settled  that  if  a  sudden unpremeditated free  fight takes  place between  two groups, the members  thereof  cannot  be  said  to  have  formed  an unlawful assembly  within the  meaning of Section 141 I.P.C. In such  a case  each of  them would  be  liable  for  their individual acts  and not  for the  acts of  others. (Lalji & Ors. Vs  State of  U.P.   A.I.R. 1973  S.C. 2505,  Puran Vs. State of  Rajasthan -  A.I.R. 1976 S.C. 912 and Ishwar Singh Vs. Sate  of U.P.  - A.I.R.  1975 S.C.  2423).    The  above principle however  has no manner of application to the facts of the instant case as the concurrent findings of the Courts below -  Which in  our opinion are unexceptionable - clearly and completely rule out a conclusion of sudden unpremediated free fight’ between the parties.  The findings also negative the second  contention of  Mr. Lalit.    To  appreciate  the findings recorded  by the  High Court  in this regard we may now refer to the evidence; first he medical evidence. 8.   Dr.  Suryawanshi  (P.W.19)  who  held  the  post-mortem examination upon  the two  deceased, found  nine injuries on the person of Ganpati.  Seven of them were incised injuries, one was  a contusion  and  the  other  a  fracture  of  left maxilla.   On internal examination he found fractures of the base of  the skull and severe damage to the right pleura and corresponding part  of the  lung.  He also found the larynx, trachea and  large vessels  cut.  He opined that the incised

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injury on  the neck  (6" x  5" deep  to the spinal cord) was fatal.   On the  dead body  of Vithoba  he found  two inside wounds and one contused lacerated wound.  One of the incised wounds was  over the  neck, cutting  large blood vessels and causing fracture  to the  cervical vertebra.  As regards the five eye-witnesses  whom he  examined, we get that P.W.8 had seven, P.W.12  two, P.W.14 five, P.W.15 seventeen and P.W.17 eight injuries.   While the injuries on the persons of P.Ws. 8, 12 and 17 were simple, P.W.14 had a fracture of the right frontal bone  and P.W.15  had a  number of  fractures on his face.   So far  as the  accused are  concerned, P.W.19 found that A3  had one,  A4 five,  A5 four,  A6 two  and A7  three injuries. P.W.19 testified that the injuries of A5, A6 and A were insignificant,  but A4  had a fracture of the left ulna and A3 had a simple injury on the forehead. 9.   To narrate  the events  that took place on that fateful morning in  which the  above injuries  were suffered  by the members of  both  the  parties,  the  prosecution  examined, besides the above five injured eye-witness, Yashoda (P.W.5), Sopan (P.W.10) and Hari (P.W.11).  The High Court found them to be  reliable witnesses  and on an elaborate discussion of their evidence  held that  the assault  started with the axe blow given  by A1  on the neck of Ganpati at the place where the cut  branches were  kept,  when  the  latter  asked  the accused persons  not to take them away and this was followed by a  similar blow  inflicted by A2 on Vithoba when he tried to rescue  Ganpati.   Scanning the evidence further the High Court held  that the  prosecution succeeded  in conclusively establishing that  A3, A5  and A6 also assaulted Ganpati and A2 and A4 assaulted Vithoba. 10.  The High Court next posed the question which of the two rival  groups   were  the  aggressors  and  considering  the sequence of  events answered  the  same  in  favour  of  the prosecution.   Agreeing with the findings of the trial Court the High  Court concluded  that the  Padik belonged  to  the complainant party  and that  the accused  had  no  right  of private defence  either of  property or person.  In arriving at that  conclusion the  High Court not only relied upon the eye-witnesses but also upon the fact that the total tally of injuries suffered  by the  members of  the complainant party went upto  51, while  the corresponding  tally for  the five injured on  the accused  side was  just 15,  and except  one fracture of  the left  ulna of  A4 all  other injuries  were insignificant. 11.  Coming now to the third contention of Mr. Lalit we find that to ascertain what was the common object of the unlawful assembly which attacked the complainant party the High Court first pointed  out that  to decide  the  same  the  relevant considerations were,  inter alia,  the motive,  the  weapons used in  the attack  and the  conduct of the assailants both before and  at the  time of  the attack.  Applying the above principles  the   High  Court   observed   that   taking   a comprehensive  view  of  all  the  relevant  materials,  the conclusion was  irresistible that  the common  object of the unlawful assembly was to remove babul wood from the scene of offence  at   any  cost,  even  by  committing  murders,  if necessary.   After having  considered the  evidence  in  the light of  the sequence  of events  we are  however unable to fully subscribe to the above view of the High Court.  Judged in the  connect of  the admitted  fact that  on the previous evening i.e.  in the evening of July 29, 1980, A6 had openly given out  that on  the next  morning they  would remove the babul trees it is obvious that when on the following morning the accused party came to the sport armed with axes, spears, this etc.   their  purpose was  to remove the babul trees at

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any cost  and cause  such injury  as may  be  necessary  for achieving that  object.   Along with  the  above  facts  and circumstances when  the injuries  sustained  by  P.W.15  are taken notice  of, it  appears to  us that  all  the  accused shared the  common object  of causing  grievous hurt  to the members  of   the  complainant  party.    it  was,  however, contended by  Mr. Lalit  that the weapons were being carried by the accused to help them in removing the branches as they were thorny,  but we  fin this contention too tenuous.  From the manner  in which  A1 suddenly  started  the  assault  on Ganpati immediately  after all  the accused  persons reached the spot  followed by  the assault  on  Vithoba  by  A2  and subsequent assaults  on the  former by  A3, A5 and A6 and on the latter  by A4,  it cannot  be conclusively said that the other accused  persons knew  that the murders were likely to be committed  in prosecution of their common object so as to attract the  second part  of Section  149  I.P.C.  In  other words, in  conjointly committing  the two  murders - that of Ganpati by  A1, A3,  A5 and A6 and of Vithoba by A2 and A4 - the above six accused persons acted beyond the common object of the  unlawful assembly.   It  is true  that the mere fact that no overt act has been attributed to the accused persons except A1  to A6  in the  two murders  is not  sufficient to exonerate them  form the charge under Section 302/149 I.P.C. But applicability  of Section 149 I.P.C. would depend on the facts of  each case.   In  the instant case we are satisfied that  the  accused  shared  the  common  object  of  causing grievous hurt  by deadly  weapons to  the two deceased - and not of  their murders  -  and  P.W.15,  who  also  sustained grievous injuries.   They  would, therefore,  be  guilty  of rioting as  also an offence under Section 326/149 I.P.C. but not under  Section 302/149  I.P.C. A1,  A3, A5  and  A6  are however guilty  of the  offence under  Section 302/34 I.P.C. for committing  the murder  of Ganpati.  Similarly A2 and A4 are guilty  under Section  392/34 I.P.C.  for committing the murder of Vithoba. 12.  That  brings   us  to   the  individual  roles  of  the appellants, other  than A1  to A6.   From the record we find that A7, A8, A10, A12, A13  to A17  have been  identified by two  or   more  witnesses   as  the   miscreants.      Their participation  in  the  incident,  therefore,  stands  fully established.   As regards  A20 he was identified only by one witness,  namely,  P.W.17  as  one  of  the  miscreants  who assaulted Jalinder.   But  then we  find that  in the  first statement that  he made  before the  police he  did not name him.     He  is,  therefore,  entitled  to  the  benefit  of reasonable doubt.  Similar benefit should also go to A24 for though PW.8 testified about his involvement in the incident, in the F.I.R. he did not assign him any role. 13.  For the foregoing discussion we alter the conviction of A1 (Dadasaheb  Patalu Misal), A2 (Pandurang Bhimrao Bhagat), A3  (Raosaheb   Shripati  Misal),  A4  (Shrimant  Vishwanath Misal), A5  (Tanaji Govind  Misal) and  A6  (Shahaji  Govind Misal) under  Section 302/149  I.P.C. to  one under  Section 302/34 I.P.C.  For the  altered conviction,  we maintain the sentences of  imprisonment for  life imposed upon A1, A2 and A3 by the trial Judge, as affirmed by the High Court and the enhanced sentences of imprisonment for life imposed for life imposed upon  A4,  A5  and  A6  by  the  High  Court.    The conviction of  A7 (Namdeo  Nanasaheb Moisal),  A8 (Babasaheb Chandu Misal),  A10 (Vasant  Shamrao Bhagat),  A12 (Abasaheb Bhimrao Bhagat),  A13 (Bappusaheb  Bhimrao Bhagat)  and  A17 (Mahadeo Patalu  Misal) under Section 302/149 I.P.C. for the two murders  is altered  to one  under Section 26/149 I.P.C. and for  the altered conviction they are sentenced to suffer

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rigorous imprisonment  for three years each.  The conviction of appellant  Nos. A1  to A8,  A10, A12,  A13 and  A17 under Section 307/149  I.P.C. for  attempting to commit the murder of P.W.15 is altered to one under Section 326/149 I.P.C. and they are  sentenced to suffer rigorous imprisonment of three years each.   The  conviction  and  sentence  under  Section 324/149 i.P.C.  and the  conviction under Section 148 I.P.C. of  the   above  twelve   appellants  are   upheld.    Their substantive sentences  shall run  concurrently.   The  above twelve appellants  who are  on bail  will now  surrender  to their bail  bonds to  serve out  the  sentences.    All  the convictions  of   A20  (Kashinath   Daulu  Misal)   and  A24 (Ramchandra Nivrutti  Bhagat) are  set aside  and  they  are acquitted of  all the  charges.   They are  discharged  from their  respective  bail  bonds.    The  appeals  are,  thus, disposed of.