Full Judgment Text
2024 INSC 468
NON-REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.412 OF 2012
SURESH DATTU BHOJANE & ANR. …APPELLANTS
VERSUS
STATE OF MAHARASHTRA …RESPONDENT
With
CRIMINAL APPEAL NO. 651 OF 2013
SATISH RAMA BHOJANE …APPELLANT
VERSUS
THE STATE OF MAHARASHTRA …RESPONDENT
J U D G M E N T
PANKAJ MITHAL, J.
1. Counsel for the parties were heard.
2. Under challenge in the present criminal appeals is the judgment
and order dated 18.10.2010 of High Court of Judicature at
Signature Not Verified
Bombay whereby it has dismissed the criminal appeals of
Digitally signed by
Indu Marwah
Date: 2024.07.08
16:35:56 IST
Reason:
appellants confirming the judgment and order of the Trial Court
1
dated 21.02.2002 convicting accused Nos. 1-6 including the
present appellants (i.e. A-3, A-5 & A-6) for offences punishable
under Sections 147, 148, 302 r/w 149 and 307 r/w 149 of IPC
and at the same time acquitting A-7 and A-8.
3. The Trial Court vide judgment and order dated 21.02.2002
acquitted accused Nos. 7 & 8, convicted the remaining accused
Nos. 1-6 and sentenced them for an offence under Section 302
r/w 149 of IPC with rigorous imprisonment for life and fine of
Rs. 100/- and in default, to suffer further imprisonment for
period of 1 week.
4. There are two separate appeals arising out of impugned
judgment and order dated 18.10.2010 which have been clubbed
together vide order of this Court dated 22.04.2013. Criminal
Appeal No. 412/2012 has been filed by accused Nos. 5 & 6 and
Criminal Appeal No. 651/2013 has been filed by accused No. 3.
Therefore, in the present appeals, we are concerned only with
conviction of accused No. 3 (Satish Rama Bhojane), accused No.
5 (Suresh Dattu Bhojane) and accused No. 6 (Anna @Anil
Maruti Bhojane).
2
5. The allegations in the present appeals relate to a group assault
conducted by all accused persons with deadly weapons which
resulted in the death of one Mohan Mungase and injuries to his
brother Nandkumar Mungase (PW-5) and one Maruti Nakate
(PW-7).
6. The Trial Court records reveal that the prosecution case is, that
accused Nos. 2 and 3 are sons of Mama Bhojane and his wife
Chhaya (accused no. 8). Mama Bhojane was owner of one
country liquor shop at village Borale. He had entrusted the
country liquor shop to the accused No. 1. Later on, he entrusted
the country liquor shop to deceased Mohan Mungase and his
brother Nandkumar Mungase (PW-5) for the purpose of running
it. Hence, accused No.1 got annoyed over such entrustment of
the shop to deceased and his brother Nandkumar Mungase
(PW-5).
7. On 06.02.1999 at about 7:00 pm, the deceased Mohan
Mungase, his cousin Balu Mungase (PW-8), Anil Dhanve and
Yuvraj Mungase were sitting at shop of Shiva Chougule situated
at Village Borale. At that time accused Nos. 1, 3, 4, 5 and 6
3
came there and abused the deceased Mohan Mungase and
extended death threats. Thereafter, they went to the house of
Mama Bhojane.
8.
The deceased Mohan Mungase in order to apprise Mama
Bhojane about the incident also went to his house along with
Balu Mungase, Anil Dhanve and Yuvraj Mungase. When he
entered the house, he found that Mama Bhojane was not there
and instead his wife (A-8) was there along with all the accused.
9. At that time, a telephonic information was received by
Nandkumar Mungase (PW-5) at his residence that his brother
deceased Mohan Mungase has picked up some quarrel at the
house of Mama Bhojane. On receiving the said information,
Nandkumar Mungase (PW-5) arrived at the house of Mama
Bhojane and he was followed by his sister Savita (PW-4). It is
pertinent to note here that Nandkumar Mungase (PW-5) was
married on 04.02.1999 i.e. 2 days earlier to the incident and,
therefore, his sister had come to attend the marriage and was
staying with them.
4
10. Nandkumar Mungase (PW-5), upon reaching the house of Mama
Bhojane, saw his brother Mohan Mungase inside the house
along with all the 8 accused persons. Accused Nos. 1-4 were
armed with swords whereas accused No.7 had a scythe in his
hand. The accused No. 8 had chilli powder. Accused Nos. 1-8
together had attacked Mohan Mungase by swords and when he
tried to intervene, he too was assaulted with the swords but was
intervened by her sister Savita (PW-4) and was rescued. At that
very point of time, Maruti Nakate (PW-7) had also come to the
house and was also assaulted.
11. In the meantime, Anil Dhanve who had accompanied Mohan
Mungase to the house of Mama Bhojane, went to the police
outpost where police constable Mahadeo Metkari (PW-9) and
police constable Malkotgi were present. Upon being informed of
the quarrel, both of them proceeded to the house of Mama
Bhojane. When the police constables reached there, Savita
(PW-4) was fetching the injured Nandkumar Mungase (PW-5)
and Maruti Nakate (PW-7) out of the house. The accused Nos. 2
and 3, armed with swords, were still following the injured but
finding that the police have arrived, they closed the door from
5
inside. Thereafter, all the accused escaped the place of incident
through the roof of the house.
12. Police constable Mahadeo (PW-9) took the injured Nandkumar
Mungase (PW-5) and Maruti Nakate (PW-7) to the Mangalwedha
Police Station. Thereafter, they were sent to the Rural Hospital,
Mangalwedha from where they were referred to the Civil
Hospital, Solapur. Thereafter, Savita (PW-4) lodged the report at
2:15 am on the same night at Mangalwedha Police station.
Crime No. 10/99 under section 302 and 307 r/w 34 of the IPC
and under Section 135 of the Bombay Police Act was registered
on the basis of her report.
13. Charges (Exhibit 2) under Sections 148, 302 r/w. 149, 307 r/w.
149 of l.P.C. and Section 135 of the Bombay Police Act were
framed on 23.02.2000. The accused did not plead guilty to the
charges.
14. In all there were eight accused persons. They were as followed:
A-1 - Dhondappa
A-2 - Sachin
A-3 - Satish
6
A-4 - Manohar
A-5 - Suresh
A-6 - Anna Bhojane
A-7 - Kondabai Nakate
A-8 - Chaya Bhojane
15. It is pertinent to note that A-7 and A-8 were acquitted by the
Trial Court and there was no appeal filed against their acquittal
and as such the conviction remained as against A-1 to A-6. A-1
had died during the pendency of the appeal in the High Court
and his appeal stood abated. Thus, leaving A-2 to A-6 but in
appeals we are only concerned with three of them that is A-3,
A-5 & A-6.
16. The learned Trial Court held that the prosecution has succeeded
in establishing that the appellant accused Nos. 1-6, armed with
deadly weapons, had formed an unlawful assembly with
common object to commit murder of the deceased Mohan
Mungase and had injured two others.
17. The conviction is challenged herein mainly on the ground that
there was no active participation of the appellants i.e., A-5 &
7
A-6 visible from evidence on record so as to form a common
object which would warrant application of Section 149 of IPC.
18. The prosecution of the appellants hinges primarily on the
evidence of the informant, Savita (PW-4), sister of the deceased,
Nandkumar Mungase (PW-5), brother of the deceased and that
of the Constable Mahadeo (PW-9).
19. Nandkumar Mungase (PW-5) in his statement has clearly
described that he and the deceased Mohan Mungase were
looking after the Country Liquor Shop of Mama Bhojane for the
last 8 to 9 months before the date of incident. Earlier, the said
shop was managed by one of the accused Dhondappa (A-1). But
as the management was entrusted to him and his brother, he
got annoyed and used to abuse them. On the date of incident at
about 8.15 pm to 8.30 pm, he had received a telephonic call
which was picked up by his mother that there is a quarrel in
the house of Mama Bhojane. Therefore, he went running to the
said house and his sister Savita (PW-4) followed him. On
reaching the house he saw the accused Dhondappa (A-1),
Sachin (A-2), Satish (A-3) and Manohar (A-4), who were all
8
armed with swords, beating his brother Mohan Mungase. He
heard Dhondappa shouting not to leave Mohan Mungase and to
kill him. He then saw Dhondappa dealing a blow of the sword
on the head of his brother as a result of which he fell down.
Then the accused Sachin (A-2), Satish (A-3) and Manohar (A-4)
assaulted him with swords. He and his sister kept on shouting
not to beat him but in vain. The accused Dhondappa (A-1)
rather gave a sword blow to him on his right hand, the other
accused Sachin (A-2) and Satish (A-3) hit him on the right
shoulder and below the left side of the throat. Before they could
give any other blow to him, his sister Savita (PW-4) intervened
and at the same time one of his friends Maruti Nakate (PW-7)
also arrived. A sword blow was also given on the back of Maruti
Nakate (PW-7), then his sister Savita (PW-4) pushed him and
Maruti Nakate outside the house. Meanwhile, somebody
informed that the police had arrived. The accused persons on
hearing this closed the door of the house and escaped. The
police sent us to the Police Station from where we were referred
to the Government hospital Mangalwedha and finally to the Civil
Hospital Sholapur.
9
20. There are no material contradictions in the testimony of the
aforesaid Nandkumar Mungase (PW-5) and his statement could
not be shaken even in the cross-examination. No doubt, he has
not assigned any specific role to A-5 and A-6, nonetheless, he
had repeatedly mentioned that 7 accused persons were present
at the scene of the crime which means there were three other
persons in addition to A-1 to A-4 who were armed with swords.
21. The informant Savita (PW-4) in her statement clearly mentioned
that though she was married outside the village, she had come
to the Village Borale to take care of her sick mother and for the
marriage of her brother Nandkumar Mungase (PW-5). Her
brother Mohan Mungase and Nandkumar Mungase used to run
Country Liquor Shop. On the date of the incident, while she was
cooking in the house, a telephonic call was received by her
mother which was handed over to his brother Nandkumar
Mungase (PW-5) who after attending the call immediately left for
the house of Mama Bhojane where her other brother Mohan
Mungase has picked up quarrel with some persons. She
followed his brother Nandkumar Mungase (PW-5) and came to
the house of Mama Bhojane. There was electric light in the
10
house and she saw the accused Dhondappa (A-1), Sachin (A-2),
Satish (A-3), Manohar (A-4), Anna Bhojane (A-6) Kondabai
Nakate (A-7) and the wife of Mama Bhojane i.e. Chaya Bhojane
(A-8). The accused Kondabai Nakate (A-7) was having scythe
whereas others were armed with swords. The accused Chaya
Bhonaje (A-8) was having chilli powder. She saw all the accused
assaulting Mohan Mungase with swords. She and her brother
Nandkumar Mungase kept on shouting not to assault him but
Satish (A-3) kept on assaulting her brother with the sword, even
Maruti Nakate (PW-7) who came and tried to intervene was not
spared and was hit in the back. She saw the accused climbing
staircase running out from the backside of the house. The
injured were taken to the Police Station and then to hospital in
a jeep and she lodged the report at the Police Station. Her
evidence could not be dislodged through cross-examination,
rather it supported the prosecution version as also the
statement of his brother Nandkumar Mungase (PW-5).
22. The police constable Mahadeo (PW-9) accompanied by constable
Malkotgi reached the place of occurrence of the crime on
receiving information of the quarrel from one Anil Dhanve of the
11
Village Borale. When he reached, there was a crowd opposite to
the house. He saw two men and a woman coming out of the
house. The accused Sachin (A-2) and Satish (A-3) were at the
door of the house, ready to assault these two men who on seeing
the police closed the door. He saw Mohan Mungase lying in the
pool of blood inside the house through the gap between the two
doors. He saw accused Dhondappa (A-1), Sachin (A-2), Satish
(A-3) and Manohar (A-4) inside the house armed with swords
and Kondabai (A-7) armed with scythe. Then he saw the
accused running away by jumping over roof of the house.
Nandkumar Mungase (PW-5) had sustained bleeding injuries on
his right hand and the neck. Maruti Nakate (PW-7) was also
injured in the back. Both the injured were taken to hospital by
the people. He i.e. constable Mahadeo (PW-9) and constable
Malkotgi did not go with them to the hospital but went to the
police out post which is ½ km. away from the place of crime.
23. A reading of the statement of Constable Mahadeo (PW-9) also
reveals the same story as narrated by Nandkumar Mungase
(PW-5) and Savita (PW-4). There appears to be no direct conflict
between his statement and that of other two material witnesses.
12
24. One another eye-witness Balu Mungase (PW-8) though had
turned hostile, but has repeated the same story that the
accused persons were armed with swords and that Savita (PW-
4) took Nandkumar Mungase (PW-5) and Maruti Nakate (PW-7)
outside the house. Both of them had sustained injuries;
Nandkumar Mungase on his hand and neck and Maruti Nakate
on his back.
25. In view of the aforesaid testimony of the eye-witnesses, the
courts below have rightly held that the deceased Mohan
Mungase was killed by the accused persons on the fateful day
in the house of Mama Bhojane.
26. The only point which arises for consideration is whether in the
facts and circumstances of the case, the accused A-5 and A-6
could also be convicted as they were not alleged to have been
armed with any weapon and have not been assigned any specific
role.
27. The aforesaid accused persons may not be armed and may not
have been assigned any specific role but nonetheless their
presence at the scene of the crime along with other accused
13
persons is duly established. They were held to be part of the
unlawful assembly with common object. The evidence of
Nandkumar Mungase (PW-5) proves the presence of Suresh (A-
5) and Anna (A-6). He has also stated that they were armed with
swords at the material time. They were likely to strike him with
sword but was timely saved by Savita (PW-4). The testimony of
Savita (PW-4) also speaks about the armed presence of both the
above accused and that they have gheraoed the deceased
Mohan Mungase. The evidence of both the above eye-witnesses
clearly proves that both of them were present at the scene of the
crime and were having the common object to kill Mohan
Mungase. All of them had joined together and have come to the
house of Mama Bhojane after a quarrel was picked up with the
deceased Mohan Mungase earlier to the incident at the shop of
Shiva Chougale situate in the village.
28. The accused A-5 and A-6 are undoubtedly part of unlawful
assembly and were having the common object viz the killing of
deceased Mohan Mungase and his brother Nandkumar
Mungase. They had a clear motive for the above purpose as the
country liquor shop which was settled in favour of A-1 was
14
subsequently entrusted to the deceased and his brother by the
owner Mama Bhojane. The accused A-5 and A-6 were present
even at the time when the deceased was threatened with dire
consequences while he was sitting on the platform of a shop just
before the fatal incident. They both were present in the house of
Mama Bhojane when the crime took place. The assembly of all
the accused persons in the house of Mama Bhojane with the
deadly weapons was apparently for the purposes of teaching a
lesson to the deceased and his brother to settle the score arising
from the entrustment of the country liquor shop. Therefore,
both A-5 and A-6 were certainly part of the unlawful assembly
having the common object and as such are guilty of the offence
as envisaged under Section 149 of the IPC.
29. The accused A-5 and A-6 have been charged under Section 149
IPC. Therefore, their presence with the other co-accused
amounted to an unlawful assembly which is sufficient for
conviction, even if they may have not actively participated in the
commission of the crime. It goes without saying that when the
15
charge is under Section 149, the presence of the accused as part
1
of the unlawful assembly itself is sufficient for conviction .
30. In view of the aforesaid testimony of the eye-witnesses and the
concurrent findings of the facts recorded by the courts below
about the presence of A-5 and A-6 at the scene of the crime as
part of unlawful assembly and their active role in surrounding
the deceased with the common intention to kill him, we are of
the opinion that they cannot escape the conviction.
31. Besides the above, there is hardly any scope for interference
with the conviction and sentence of A-3. He has been assigned
an active role in the crime. All the eyewitness has categorically
stated about his presence and that he was armed with deadly
weapon, i.e., sword and that he had also wielded blows not only
upon the deceased but upon the injured persons. In the light of
the aforesaid evidence, there is no flaw in his conviction.
32. The submission that he has already undergone over 13 years of
incarceration and therefore some leniency be shown and his
sentence be reduced to that he had already undergone or
1
Yunis alias Kariya vs. State of Madhya Pradesh, AIR 2003 SC 539
16
alternatively he may be prematurely released has no substance.
The minimum sentence for committing murder is life
imprisonment and therefore is not liable to be reduced. In the
event he has already undergone sufficiently long incarceration
and is eligible for remission, he may or as a matter of fact even
the others are at liberty to apply for remission for premature
release in accordance with the policy of the State. In the event
any such application or representation is made by any of the
appellants, the same shall be considered most expeditiously by
the authority concerned in accordance with law and in the light
of the remission policy of the State in vogue.
33. The appeals lack merit and are dismissed with the above
observations.
……………………………….. J.
(ABHAY S. OKA)
……………………………….. J.
(PANKAJ MITHAL)
NEW DELHI;
JULY 08, 2024.
17