Full Judgment Text
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PETITIONER:
PUNDALIK MAHADU BHANE & ORS.
Vs.
RESPONDENT:
STATE OF MAHARASHTRA
DATE OF JUDGMENT: 14/08/1997
BENCH:
M. K. MUKHERJEE, S. SAGHIR AHMAD
ACT:
HEADNOTE:
JUDGMENT:
J U D G M E N T
MUKHERJEE, J.
In Sessions Case No. 233 of 1979, 12 persons were tried
by the Additional Sessions Judge, Thane for rioting,
committing murder and other allied offences. Of them 2 were
acquitted and the other 10 (who were arrayed as accused Nos.
1 to 10 and henceforth will be referred to) were convicted
under Section 148 I.P.C. Besides, A-1 to A-3 were convicted
under Section 302/34 I.P.C. and the remaining 7 under
Sections 324/149 and 323/149 I.P.C. Against their
convictions and sentences, A-1 to A-10 preferred an appeal
which was disposed of by the High Court, by affirming their
convictions, maintaining the sentences awarded to A-1 to A-3
for their convictions under Sections 302/34 and 148 I.P.C.
and reducing the substantive sentences of the remaining 7 to
the period already undergone and imposing a sentence of
fine. Assailing the above judgment of the High Court, only
A-1 to A-3 filed this appeal after obtaining special leave.
During the pendency of this appeal A-1 died and hence the
appeal so far as he is concerned stands abated.
2. The prosecution case as unfolded during trial is as
under:
(a) Kathod (P.W.3) has three sons named Anant (P.W.2),
Krishna and Haribhau (the deceased) Rama (P.W.1) and
Bama (P.W.4) are the sons of Barku, brother of P.W.3.
A-1 to A-10 are also related to each other. The
agricultural land belonging to the family of P.W.1
adjoins that of Tukaram (A-5). As the land of A-5 is on
a level lower than that of P.W.3, during monsoon the
accumulated rain water of the land of P.W.3 flows down
to the land of A-5.
(b) On June 23, 1978 at or about 9.00 A.M. when P.W.2 went
to plough their land, he found that it was submerged in
water. He then removed a portion of the bound of the
land as a result whereof the discharged water started
flowing into the land of A-5. Seeing the water flowing
into his land A-5, who was then present there, took
exception to such discharge of water; and over this
issue, a quarrel ensued between P.W.2 and A-5.
Ultimately however, A-5 changed the flow of water by
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closing the bound and the water started flowing through
the land of P.W.2. P.W.2 then left the place in a huff
and reported the incident to his family members.
(c) On the following day, i.e. June 24, 1978, at or about
7.30 A.M. when P.W.1 was returning from the field after
answering the call of nature and had reached near the
Primary School building, he found all the accused
present there armed with sticks. Seeing him they threw
a challenge that they were prepared to fight and asked
him to call his associates. Immediately thereupon A-4
and A-6 struck P.W.1 with their respective sticks.
P.W.1 then raised shouts and hearing the same Anant
(P.W.2), Haribhau (the daceased), Kathod (P.W.3), Bama
(P.W.4), Harish Chandra (P.W.5), Moti Ram (P.W.6) and
one Gopinath Pawar rushed to his rescue. The accused
then started beating them also with their sticks. In
the meantime, Pundalik P.W.10), Vishnu (P.W.12) and
other villagers gathered there and stopped the assault.
It was then found that Haribhau and P.W.4 were lying on
the ground with serious injuries on their heads and
other parts of the bodies. The other persons who
sustained injuries at the hands of the appellants were
the above witnesses. Haribhau was immediately taken to
Central Hospital, Ulhasnagar where he was admitted as
an indoor patient. At or about 8 A.M. P.W.1 went to
Hill Line Police Station, Ulhasnagar and lodged a
report about the incident. On that information a case
was registered and P.S.I. Kamble (P.W.21) took up
investigation.
(d) Dr. Datte (P.W.22) examined Haribhau at 9.15 A.M. but
within two hours he succumbed to his injuries. After
inquest was held on his dead body by P.W.21, P.W.22
held the postmortem examination. On completion of
investigation P.W.21 submitted charge-sheet and in due
course the case was committed to the Court of Session.
3. The accused pleaded not guilty to the charges levelled
against them. Their specific defence was that on the day in
question, when A-5 was going to his field he was assaulted
by the prosecution witnesses on account of the incident that
took place on the previous day over the flow of the rain
water. It was their further defence that A-1 to A-2 A-4 to
A-7 and A-10 were also assaulted by the complainant party.
In support of their case they exhibited the first
information report that A-5 lodged against some of the
members of the complainant party and further brought on
record the fact that on completion of the investigation in
that case 11 persons, including some of the prosecution
witnesses, were charge-sheeted and subsequently committed to
the Count of Session to stand trial under Sections 148, 323,
324/149 and 307/149 I.P.C.
4. On perusal of the judgment of the trial Court we find
that after a detailed discussion of the evidence adduced
during trial, the trial Court recorded the following
findings:
"In my opinion, the circumstances
and the evidence taken together
would show that there was free
fight between the party of the
prosecution and the Party of the
accused and such a free fight was
premeditated one. There was motive
for both the sides to attack on the
other, The version of the
prosecution witnesses stated above
that they were attracted due to be
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and cry, appears to be unreliable.
It was rightly submitted by Mr.
Ovalekar that it was improbable for
the witnesses to come from the
different localities and on arrival
to see the only incident of accused
nos. 1 to 3 assaulting Haribhau
with sticks and bana. However this
would not mean that these witnesses
were not at all present. On the
contrary, in my opinion, all these
persons must have come together
near the school and the party of
the accused was already there. The
evidence of P.W.3 Kathod explains
how both the parties gathered near
the school Kathod saw accused No. 1
to 10 passing by the road in front
of his house and accused no. 5
Tukaram threatening him to come to
wards Dhoknil land. True it is that
P.W. 3 Kathod was omitted to state
this version before police but
under the circumstances, I find
such a version quite probably and
fitted in the circumstances. The
number of injuries by prosecution
witnesses, as well as that by
accused would go to show that the
assault was during the course of
free fight and not as and when the
witnesses came."
<emphasis supplied)
5. In appeal the High Court concurred with the above
findings of the trial Court as would be evident from the
following passage of its judgment:
"Exhibit 18, further shows that
when P.W.1 Rama was assaulted the
rest of the prosecution witnesses
came there and although P.W.1 Rama
has stated that they were also
assaulted by the accused it will
not be too far fetched to fight
which must have ensued between the
two parties who were armed. The
prosecution witnesses have also
admitted that as a result of the
same incident accused No. 5 Tukaram
has logged a complaint against them
and they were also tried in the
companion case for having caused
injuries to some of the accused.
Except saying that the prosecution
witnesses themselves assaulted the
accused with deadly weapons, which
one cannot expect in a case like
the present one where two parties
come together to try their
strength, the version given by the
prosecution witnesses about the
assault made by the accused on each
one of the injured persons is
substantially corroborated by the
medical evidence that has been
produced in this case."
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(emphasis supplied)
6. After having gone through the entire record we are of
the opinion that the above concurrent findings of the
learned Courts below are substantially correct and are based
upon reasonable appreciation of the evidence. But then,
having recorded such findings the learned Courts below were
not justified in convicting the appellants for rioting, for
the law is now well-settled that in the case of a sudden and
free fight each of the persons involved therein can be held
liable for his individual act and not vicariously liable for
the acts of others. [Lalji and Ors. Vs. The State of U.P.
AIR 1973 S.C. 2505, Ishwar Singh Vs. The State of U.P. AIR
1976 S.C. 2423 ]. The convictions of the two surviving
appellants under Section 148 IPC cannot, therefore, be
sustained.
7. Coming now to their individual acts we find that each
of them assaulted the deceased with sticks resulting in
grievous injuries on his person. Both of them (now that A-1
is died) are therefore liable for conviction under Section
325 I.P.C. We, therefore, set aside the convictions of A-2
and A-3 namely Balram Kundalik Bhane and Undrya Baglya Bhane
respectively under Sections 148 and 302/34 I.P.C. From the
record we find that they have already served more than 3-1/2
years of their sentences. In consideration thereof and the
fact that since the incident took place more than 19 years
have elapsed, we sentence them to the period already
undergone and a fine of Rs. 2,500/- each. In default of
payment of fine they shall suffer rigorous imprisonment for
1-1/2 years each. The fine should be paid within 6 weeks,
falling which the two appellants should be sent to prison to
serve the sentence imposed by us for default in payment of
the fine. The entire fine, if realised, shall be paid to the
widow of the deceased Haribhau. The appeal is thus disposed
of.