Ananta
Kathod Pawar & Ors Vs. The State of Maharashtra [1997] INSC 666 (14 August
1997)
M.K.
MUKHERJEE, S. SAGHIR AHMAD
ACT:
HEADNOTE:
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.
The
following Judgment of the Court was delivered:
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, 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 [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.
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