Balkrishna Bhoir Vs. The State of Maharashtra  Insc 590 (15 May 2007)
S.B. Sinha & Markandey Katju
CRIMINAL APPEAL NO. 417 OF 2006 AND CRIMINAL APPEAL NO. 416 OF 2006 S.B. Sinha,
1. These appeals arising out of the judgment and order dated 1.2.2005 passed
by a division Bench of the Bombay High Court were taken up for hearing together
and are being disposed of by this common judgment.
Altogether 7 persons were charged for commission of murder of one Ramdas on
3.2.1987 at 9 p.m. at his house. The accused were charged under Sections 147,
148, 302/149, 452 of the Indian Penal Code. Accused No. 3 was also charged for
causing simple hurt to P.W. 1 Kishor. The learned Trial Judge convicted the
accused persons. The High Court has affirmed the said judgment. It is stated
that during the course of the trial and/or pendency of the appeal, accused Nos.
1 to 3 have expired. Accused No. 6 has not preferred any special leave petition
2. The motive for commission of the offence is said to be that the deceased
and accused no. 1 had quarreled with each other about a fortnight prior to the
date of incident.
3. Prosecution case is said to be as under :
On 3.2.1987, the deceased Ramdas and his friend Kishor, P.W. 1, the first
informant were standing in front of the deceased's house. All the accused
persons allegedly came there at about 7.30 in the evening. Accused No. 1 asked
for a gold pendent from the deceased Ramdas which was the subject matter of the
dispute between the parties and in relation whereto quarrel had taken place as
the earlier occasion. The deceased, in response thereto is said to have stated,
that he had returned the said gold pendent to some persons hailing from
Panchpakhadi area. At that the accused No. 2 allegedly caught hold of the shirt
of the deceased, a scuffle ensued between the accused No. 2 and the deceased.
P.W. 1 with the wife of the accused No. 1 intervened and separated them.
Allegedly, the deceased touched the person of the wife of accused no. 1, for
which complaints were made by both the parties before the Outpost of the Police
at Kopri. However, no report was accepted and the police officers said to have
pacified allegedly pacified both the parties and sent them back. On 3.2.1987 at
about 7.30 p.m., P.W. 1 came to the house of the deceased. They went to a pan
stall and took a round in the Bazar. At about 9.00 p.m. both of them came back
to the house of the deceased. Ramdas expressed his desire to have his dinner
and requested P.W. 1 at his place to wait whereafter he promised to go to the
complainant's house. While P.W. 1 was sitting on the cot in the front room of
the deceased's house and the deceased Ramdas had been taking his dinner, he saw
6 to 7 persons coming to the front of the house. When he went out to see as to
who they were, found the accused persons standing there. Allegedly, accused No.
2 was having a knife in his hands, and the accused Nos. 3 to 6 were having
swords in their hands. P.W. 1 was asked to call the deceased to which he
replied that he was taking his dinner, and they could talk to him after he
finished taking meal. He was then allegedly assaulted by accused no. 3 by a
sword by its blunt side on the shoulder, whereafter the accused entered into
the house of the deceased. Baburao, father of the deceased who examined himself
as P.W. 5 tried to resist them and in the process, caught hold of the sword
which was in the hands of the accused no. 6 resulting in sustaining of bleeding
injuries. The accused allegedly entered into the room. The deceased was
assaulted with kicks and fist blows. Accused No. 2, Anil Mhatre stabbed the
deceased Ramdas with a knife. While the accused persons were going out of the
house, Bhaskar, brother of the deceased came whereupon accused No. 2 asked him
not to enter into the house. While P.W. 1 was going to report the matter to the
police Outpost Kopri, he met the other brother of the deceased, Sudhakar.
Sudhakar was asked by P.W. 1 to bring the deceased to the police outpost,
and he went to the police outpost. The deceased was brought to the said outpost
by Sudhakar, whereafter he was referred to the Civil Hospital. A doctor upon
examining him declared him dead. Complainant Kishor and witness Baburao were
also examined by the doctor. They were rendered medical assistance.
4. The short question which arises for consideration in these appeals is the
nature of involvement of the appellants before us. It is contended that the
appellants were unarmed, and they were not known to the deceased or his family
by even P.W. 1 Kishor. They had no motive to commit the crime.
5. The post mortem report shows that the following injuries were found on
the body of Ramdas:
"1. Stab wound on epigastric region right to midline 1" x
1/2" x deep to peritoneal cavity direct cavity direct into backward and
2. Incised wound over left index finger at metocarpus fallengial joint
1/2" x 1/4" x 1/8"
3. Incised wound on left thumb metocarpus fallengial joint 1/2" x
1/4" x 1/8""
6. Only injury no. 1 was found by the doctor to be sufficient in the natural
course to cause death.
7. The injuries on the person of Kishor was only a clean wound on left infra
clavicular region middle third of the clavic 1/4 cm x 1/4 cm x 1/4 cm.
whereas Baburao suffered the following injuries:- "Clean incised wound
on the right hand at the distal former kreez 1/2 cm. 1/2 cm x 1/4 cm. and on
first web space 1/2 cm. x 1/2 cm x 1/2 cm. Injury on first web space is also a
clean incised wound and it is injury no. 2.
Clean incised wound on left thumb terminal fale x 1/2 cm. x 1/2 cm. x 1/2
8. Indisputably, a vital injury was caused to the deceased by the accused
No. 2, while other injuries found on his person were caused only by blows.
The accused No. 3 is said to have caused injury to P.W. 1, but no specific
overt act was attributed to any of the appellants before us. No witness stated
before the trial court in regard to the specific roles played by each of the
9. The learned counsel for the appellants questioned the identification of
the appellants by the prosecution witnesses before us. Admittedly, test
identification parades were held for identification of the accused persons.
The first test identification parade was held only in respect of accused
Nos. 1 to 4, whereas the second test identification parade was held in respect
of accused Nos. 5 to 7. It is, therefore, evident that even the identity of the
appellants before us was in doubt.
10. Even the full name of the appellant Sunil was not disclosed in the First
Information Report. He in the test identification parade was not identified by
witnesses Ratna Kajale, Sudhakar Kajale, Bhaskar Kajale and even the first
informant Kishor and was identified only by the father of the deceased Baburao
Kajale. Even Baburao did not attribute any specific overt act so far as the
said Sunil is concerned. He did not say that Sunil was having any weapon.
11. P.W. Nos. 2 to 4 did not identify the accused No. 4 and accused No. 7
being the appellants in Criminal Appeal Nos. 415 of 2006 and 416 of 2006
12. Indisputably, all the witnesses are interested witnesses. P.W. 1 was the
complainant. P.W. 2 Ratna was allegedly at the relevant time have been named to
the deceased. P.W.4 is Bhaskar, brother of the deceased. P.W. 5, Baburao was
the father of the deceased. P.W. 3 Sunil was also one of the brothers of the
13. The learned Trial Judge did not place any reliance whatsoever on the
evidence of P.W. 5 Baburao and P.W. 3 Sunil. We have noticed hereinbefore that
only one stab injury was inflicted on the deceased by accused No. 2. It was not
14. Mr. V.A. Mohta, learned senior counsel appearing on behalf of the
appellant would submit that in the aforementioned fact situation, no case has
been made out to arrive at a finding that the appellants herein had a common
object to cause the death of the deceased Ramdas.
15. The learned Trial Judge as also the High Court proceeded on the basis
that for establishing common object, no prior meeting of mind was necessary.
According to the courts below, it may develop on the spot. The dispute between
the parties which was said to be the motive for committing the offences was an
ornament. First of the quarrels between the accused No. 1 and the deceased took
place a fortnight prior to the date of occurrence.
Appellants herein were not involved. Accused No. 1 on the one hand and the
deceased on the other quarreled on the second occasion. A scuffle took place.
The wife of the accused No. 1 and P.W. 1 tried to intervene. The deceased
allegedly at that time touched the person of the wife of accused No. 1. They
went to lodge their respective complaints but then the matter was settled.
Accused No. 1 therefore may have a grudge as against the deceased, who had
touched his wife. It is unlikely that the appellants before us, who were wholly
unarmed and who were even not known to the deceased would form a common object
to cause his death. Had it been so, they would have gone armed with weapons.
Specific overt acts had not been attributed against them. Allegations made in the
first information report show that whereas the accused Nos. 3 and 6 were armed
with sword, accused No. 2 had a knife. The knife was used by accused No. 2 all
of a sudden. Evidently nobody wanted to cause any serious injury to others. The
medical evidence does not specifically mention as to how the wounds were
caused. The size of the wound shows that nobody had used any weapon with much
force. The wounds might have also been caused during scuffle.
16. In the aforementioned situation, it is difficult to apply the test of
common object. Mr. Sushil Karanjkar, learned counsel appearing on behalf of the
respondent, however, would inter alia rely upon a decision of this court in
Bishna alias Bhiswadeb Mahato and Others v. State of W.B. [(2005) 12 SCC 657].
In that case itself, it was held "62. For the purpose of attracting
Section 149 IPC, it is not necessary that there should be a pre-concert by way
of a meeting of the persons of the unlawful assembly as to the common object.
If a common object is adopted by all the persons and shared by them, it would
serve the purpose."
17. Section 149 per se constitutes a substantive offence. The object of this
section is to make clear that an accused person whose case falls within its
terms cannot put forward the defence that he did not, with his own hand, commit
the offence committed in prosecution of the common object of the unlawful
assembly or such as the members of the assembly knew to be likely to be
committed in prosecution of that object. Unlawful assembly was formed originally
to assault and something might have happened all of a sudden.
18. Common object is defined under Section 141 of the Indian Penal Code in
the following terms:- "141. Unlawful assembly. An assembly of five or
more persons is designated an 'unlawful assembly', if the common object of he
persons composing that assembly is- First To overawe by criminal force, or
show of criminal force, the Central or any State Government or Parliament or
the Legislature of any State, or any public servant in the exercise of the
lawful power of such public servant;
or Second - To resist the execution of any law, or of any legal process; or
Third To commit any mischief or criminal trespass, or other offence; or Fourth
By means of criminal force, or show of criminal force, to any person, to take
or obtain possession of any property, or to deprive any person of the enjoyment
of a right of way, or of the use of water or other incorporeal right of which
he is in possession or enjoyment, or to enforce any right or supposed right; or
Fifth. By means of criminal force, or show of criminal force, to compel any
person to do what he is not legally bound to do, or to omit to do what he is
legally entitled to do."
19. Section 142 provides that whoever being aware of facts which render any
assembly an unlawful assembly, intentionally joins that assembly, or continues
in it, is said to be a member of an unlawful assembly.
20. The question which is required to be seen in each case is, what was the
initial common object, if at all.
21. In Ram Dular Rai and Others v. State of Bihar [AIR 2004 SC 1043], this
"7...Section 149 does not require that all the five persons must be
identified. What is required to be established is the presence of five persons
with a common intention of doing an act. If that is established merely because
the other persons present are not identified that does not in any way affect
applicability of Section 149, IPC."
22. In Munna Chanda v State of Assam [(2006) 3 SCC 752], this Court in the fact
situation obtaining therein held:- "12. It is, thus, essential to prove
that the person sought to be charged with an offence with the aid of Section
149 was a member of the unlawful assembly at the time the offence was
13. The appellants herein were not armed with weapons. They except Bhuttu
were not parties to all the three stages of the dispute. At the third stage of
the quarrel, they wanted to teach the deceased and others a lesson. For picking
up quarrel, they wanted to teach the deceased and others a lesson. For picking
up quarrel with Bhuttu, they might have become agitated and asked for apologies
from Moti. Admittedly, it was so done at the instance of Nirmal, Moti was
assaulted by Bhuttu at the instance of Ratan. However, it cannot be said that
they had common object of intentional killing of the deceased. Moti, however,
while being assaulted could free himself from the grip of the appellants and
fled from the scene. The deceased was being chased not only by the appellants
herein but by many others. He was found dead the next morning. There is,
however, nothing to show as to what role the appellants either conjointly or
separately played. It is also not known as to whether if one or all of the
appellants were present, when the last blow was given. Who are those who had
assaulted the deceased is also not known. At whose hands he received injuries
is again a mystery. Neither Section 34 nor Section 149 of the Penal Code is,
therefore, attracted (See Dharam Pal v State of Haryana and Shambhu Kuer v
State of Bihar)."
23. Yet again in Mummidi Hemadri and Ors. v State of Andhra Pradesh [2007
(4) SCALE 431], a division bench of this Court opined as under:- "14.
Section 149 IPC, consists of two parts. The first part of the section means
that the offence to be committed in prosecution of the common object must be
one which is committed with a view to accomplish the common object. In order
that the offence may fall within the first part, the offence must be connected
immediately with the common object of the unlawful assembly of which the
accused was a member. Even if the offence committed is not in direct
prosecution of the common object of the assembly, it may yet fall under Section
141 IPC, if it can be held that the offence was such as the members knew was
likely to be committed and this is what is required in the second part of the
section. The purpose for which the members of the assembly set out or desired
to achieve is the object. If the object desired by all the members is the same,
the knowledge that is the object which is being pursued is shared by all the
members and they are in general agreement as to how it is to be achieved and
that is now the common object of the assembly. An object is entertained in the
human mind, and it being merely a mental attitude, no direct evidence can be
available and, like intention, has generally to be gathered from the act which
the person commits and the result therefrom....."
[See also Radha Mohan Singh alias Lal Saheb and Others v. State of U.P.,
(2006) 1 SCC (Cri) 661 and Rabindra Mahto and Another v. State of Jharkhand
(2006) 10 SCC 432]
24. Applying the tests laid down by this Court in the aforementioned
decisions, we are of the opinion that no case had been made out as against the
appellants to arrive at a conclusion that they are guilty of commission of an
offence under Section 302/149. We would assume that they were guilty under
Section 452 of the Indian Penal Code but they have remained in custody for
sufficiently long time. We, therefore, are of the opinion that having regard to
the facts and circumstances of this case, these appeals should be accepted.
Appellants herein are in custody. They are directed to be set at liberty in
connection with certain other offences. The appeals are allowed and the impugned
judgment is set aside.