Namdeo
Nanasaheb Misal, Tanajl Govind Misal Vs. The State of Maharashtra [1997] INSC
729 (12 September 1997)
M. K.
MUKHERJEE, M. JAGANNADHA RAO
ACT:
HEADNOTE:
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
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 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 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 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 & State of Rajasthan - A.I.R. 1976 S.C. 912 and Ishwar
Singh 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 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 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 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.
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