07 May 1996
Supreme Court
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PREM RAJ AND ANR. Vs STATE OF MAHARASHTRA


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PETITIONER: PREM RAJ AND ANR.

       Vs.

RESPONDENT: STATE OF MAHARASHTRA

DATE OF JUDGMENT:       07/05/1996

BENCH: MUKHERJEE M.K. (J) BENCH: MUKHERJEE M.K. (J) KURDUKAR S.P. (J)

CITATION:  JT 1996 (6)   117        1996 SCALE  (4)252

ACT:

HEADNOTE:

JUDGMENT:                             And                 CRIMINAL APPEAL NO. 617/1996                              In (Special Leave Petition(Crl.) No. 659 of 1996) Munna @ Narendra V. State of Maharashtra                          O R D E R      Special leave in both the petitions granted. 2.   These two criminal appeals are filed by accused Nos. 1, 4  and   7  (appellants)   challenging  the   legality   and correctness of the impugned judgment and order dated 15-2-1995 passed  by the High Court of Judicature at Bombay, Nagpur  Bench,   affirming  conviction  and  sentence  under sections 147, 148, 302 read with 149 IPC. Both these appeals arise out of a common impugned judgment and, therefore, they are being disposed of by this judgment. 3.   The complainant  Raja Ram  Kolhe  is  the  resident  of village Mohgaon Bhadade. Chhatrasal (since deceased) was one of the  sons of said Raja Ram. The incident in question took place on  21-9-1991 at about 3.00 p.m. Fifteen days prior to the said  incident, a  quarrel took place between Chhatrasal and Vasanta  (A-2) over  liquor. On  21-9-1991 at about 3.00 p.m. Chhatrasal  had gone  to the  shop of Chindu (PW 5) for shaving. At  that time, all the seven accused who were armed with deadly  weapons like  spear and bamboo sticks formed an unlawful assembly  and assaulted  Chhatrasal and dragged him on the  road. They  continued assaulting  Chhatrasal even on the  road.   Chhatrasal  sustained   bleeding  injuries  and collapsed on  the ground  and ultimately  succumbed  to  the injuries. The  complaint about  the incident  was lodged  at about 2.00  a.m. on  22-9-1991.  The  investigating  officer carried out  the necessary  investigation and  arrested  the accused. After  completing the  investigation, seven accused were put  up for  trial for  the offences  punishable  under sections 147,  148, 302  read with section 149 of the Indian

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Penal Code.      The defence  of the  accused was  that of total denial. The defence,  however, examined  Madhaorao Umathe (DW 1) and Pandurang Gathe (DW 2) as their defence witnesses.      The VIIth  Addl. Sessions Judges Nagpur on appraisal of oral and  documentary evidence on record by his judgment and order dated  19-6-1993 found  the appellants  and other four accused guilty  of offences  for which  they were tried. The learned trial  Judge accordingly  sentenced all  the accused for various  terms of  rigorous imprisonment  including life imprisonment.  Aggrieved  by  this  judgment  and  order  of convictions all  the seven  accused preferred  one  criminal appeal before the High Court of judicature at Bombay, Nagpur Bench. The  High Court  on re-appraisal  of the  evidence on record concurred  with the findings of guilt recorded by the learned Trial  Judge and  accordingly by  its  judgment  and order dated 15-2-1995 dismissed the appeal. 4.   The appellants  aggrieved by  the  aforesaid  order  of conviction and sentence preferred these two appeals. 5.   Mr. Daga, learned Advocate appearing in support of both these appeals  urged that  the impugned  order of conviction and  sentence   is  unsustainable.  He  submitted  that  the evidence on  record does  not refer  to any overt-act on the part of  the appellants.  The appellants  were found  guilty with the aid of section 149 IPC, ignoring the fact that they had not  participated in the said assault on Chhatrasal. The learned Advocate  further urged that evidence on record does not prove  beyond reasonable  doubt that the appellants were members of an unlawful assembly sharing the common object to commit the  murder of  Chhatrasal and in prosecution thereof committed his murder. Mr. Daga, therefore, urged that in the absence of proof of common object of an unlawful assembly to commit the  murder of  Chhatrasal, the  appellants cannot be convicted under  section 302  with the  aid of  149 IPC.  He urged that  assuming, that the appellants did participate in the said assault, with the bamboo sticks and as per the post mortem examination  report, the  injuries referable  to  the assault  by   bamboo  stick   were  simple  in  nature,  the conviction of the appellants under section 302 read with 149 IPC is illegal. 6.   Mr. Jadhav, learned Advocate appearing for the State of Maharashtra supported the impugned judgment. 7.   We have  carefully perused  the judgment  of the  trial court as  well as  the High Court. We have also gone through the materials  on record.  It is  not and cannot be disputed that Chhatrasal had sustained as many as six injuries out of which three injuries were punctured wounds and the remaining were contusions  over the vital parts of the body. Dr. Ashok Panbudey (PW  6) who  performed the autopsy on the dead body of Chhatrasal  opined that  the cause  of death  was due  to shock and  haemorrhage and  due to  injuries to  the  middle cranial fossa  (right side)  and injuries  to the  liver and right kidney.  Dr. Ashok Panbudey (PW 6) further opined that these injuries  were ante mortem and they were sufficient to cause the  death of  Chhatrasal. We  see  no  hesitation  in accepting the  finding of  the courts  below that Chhatrasal died because  of the  injuries sustained  by him  during the assault in question on 21-9-1991. 8.   Coming  to   the  complicity  of  the  appellants,  the prosecution case principally rests on the evidence of Chindu (PW 5)  who runs a barber shop where Chhatrasal had gone for shaving. He  is an eye witness to the entire incident and at the earliest opportunity, he had disclosed all details about the assault  to Raja  Ram (PW 1) father of Chhatrasal and Om Narayan (PW  4). We have gone through the evidence of Chindu

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and in our opinion, the Courts below have committed no error in accepting  the evidence of Chindu (PW 5) as trust worthy. We have  also gone  through the  evidence of Raja Ram (PW 1) and Om  Narayan (PW 4) who have again consistently supported the prosecution story. On the basis of the evidence of these witnesses, the  courts below  have held  that the appellants and other  four accused  had come  together to  the shop  of Chindu (PW  5) and  assaulted Chhatrasal  at  the  shop  and thereafter dragged  him on the road and continued to assault him. The  evidence of  the above  prosecution witnesses also finds support  from the medical evidence. We, therefore, see no infirmity in the findings recorded by the courts below as regards the  complicity of  the appellants  alongwith  other four accused.  The appellants  were the  members of unlawful assembly and  shared common  object to  commit the murder of Chhatrasal. 9.   Mr. Daga strenuously urged that there is no evidence on the record  to hold  that the  appellants  shared  a  common object alongwith  Vasanta accused  No. 2 who caused injuries by spear  resulting in  to the  death of  Chhatrasal. In the absence of  any positive  evidence on  record. counsel urged that the  appellants are  entitled for  benefit of doubt and they be acquitted of an offence punishable under section 302 read with  149 of  the Indian  Penal code. We do not see any substance in  this contention because the evidence on record is to  the contrary.  The contention of the learned advocate for the  appellants that there is no overt-act attributed to the appellants  by the  prosecution witnesses  in untenable. The evidence on record clearly establishes the common object of the unlawful assembly to commit murder of Chhatrasal. The preparation with  Which they  came together  and  thereafter assaulted Chhatrasal  leaves no  manner of doubt about their common object.  It is  not possible  to accept  any  of  the contentions raised  by Mr. Daga on behalf of the appellants. There is  no substance  in both  the  appeals.  Appeals  are accordingly dismissed.  If  the  appellants/accused  are  on bail, they  shall surrender  to their bailbonds forthwith to serve out their respective remaining terms of sentences.