Full Judgment Text
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PETITIONER:
ANSARAM RAMBHAU YOLVE & ORS.
Vs.
RESPONDENT:
STATE OF MAHARASTRA
DATE OF JUDGMENT: 12/02/1996
BENCH:
MUKHERJEE M.K. (J)
BENCH:
MUKHERJEE M.K. (J)
KIRPAL B.N. (J)
CITATION:
JT 1996 (3) 24 1996 SCALE (2)236
ACT:
HEADNOTE:
JUDGMENT:
J U D G M E N T
M.K. MUKHERJEE, J.
Eleven persons, including the right appellants in these
appeals, were indicted before the Sessions Judge, Beed in
Sessions Case No. 82 of 1982 for rioting and murders and
other allied offences in prosecution of their common
objects. The trial ended with an order of conviction and
sentence under Sections 325/149, 324/149, 323/149, 147 and
148 IPC recorded against all of them and also under Section
304 (Part I) IPC against two of them namely, Bajirao and
Dagdu and of acquittal in favour of the other three. The
cross case instituted against some of the witnesses of the
above trial and others, for rioting and assault, which was
also tried by the Sessions Judge (Sessions Case No. 9 of
1983) however ended in an order of acquittal of all the
persons arraigned. Against their convictions and sentences
the appellants preferred two appeals - one by Bajirao and
Dagdu and the other by the rest. The respondent-State of
Maharastra also preferred an appeal against the acquittal of
the appellants in respect of the charge under Section
302/149 IPC. A revision petition assailing the acquittal of
the accused persons in the cross case was also filed by the
appellant Ansaram. All the above matters were heard together
by the High Court and disposed of by a common judgment by
allowing the appeal of the State and dismissing the other
two appeals and the criminal revision petition. While
allowing the appeal of the State, the High Court convicted
all the appellants under Sections 302/149, 325/149, 324/149
IPC and sentenced them to different terms of imprisonment,
including life, and fine, with a direction that the
substantive sentences shall run concurrently. The High Court
also convicted five of the appellants under Section 148 IPC
and the other three under Section 147 IPC but no separate
sentence was passed for these convictions. The present
appeals have been filed by the appellants, in different
sets, under Section 379 Cr.P.C. and Supreme Court
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(Enlargement of Criminal Appellate Jurisdiction) Act, 1970
assailing the above judgment of the High Court.
We may at the outset point out that Mr. Lalit, the
learned counsel appearing on behalf of the appellants fairly
conceded that one of these appeals, namely, Criminal Appeal
No. 825 of 1985 which has been filed by the appellant
Ansaram challenging the dismissal of his revision petition
against the order of acquittal in the cross case could not
have been filed either under Section 379 Cr.P.C. or Supreme
Court (Enlargement of Criminal Appellate Jurisdiction) Act,
1970. We, therefore, dismiss Criminal Appeal No. 825 of 1985
as not maintainable.
Before we proceed to consider the facts on which the
parties have joined issue, we may refer to those which
remain uncontroverted. The appellants Bajirao, Ansaram,
Dadarao, Sarjarao and Haribhau are real brothers being sons
of late Rambhau Yelve. Of the other three appellants, Dagdu
is the son of Haribhau, Mantaram is the son of the mother’s
sister of Bajirao and Achit is the servant of Dadarao. The
sons of Rambhau (hereinafter referred to as the ‘Yelves’)
own survey No. 313 of village Gujarwadi. To the adjoining
north of this land is Survey No. 312, the eastern most strip
of which measuring 100’ x 40’, was jointly owned by Gana,
his son Sopan (the two deceased) and Nivrutti (P.W.11),
nephew of Gana. To the immediate west of that strip of land
are the strips of Dagdu, Devaibai and Vithal (P.W.1), in
that order. Vithal also owns a small strip of land adjoining
Gana’s land on the north. In between the lands of Yevles and
Gana runs a small Nala which is about 10 feet wide. On the
southern bank of the Nala, that is, on the northern bank of
the land of the accused there is a thick cactus growth.
According to the case of the prosecution even though
the land under the Nala was exclusively owned and possessed
by Gana, his son and nephew the accused persons were
disputing his such claim and on August 16, 1982 they
uprooted cactus plants along 12 feet and replanted them on
the southern bank of the Nala, apparently for extending the
boundary of their land.
The prosecution version as regards the incident of the
murderous assault is that on the following day, that is, on
August 17, 1982 at or about 7 A.M, Gana, Sopan and Nivruti
(P.W.11) went to their land to see the damage done by the
accused persons on the previous day. While they were engaged
in inspecting removal of the plants, the accused persons
came there variously armed, While five of them (who are
amongst the appellants herein) were armed with axes the rest
were armed with sticks. Reaching there they surrounded Gana
and Sopan and started beating them with their respective
weapons. The two victims raised alarms and hearing the same
Vithal (P.W.1), Jalinder (P.W.2), Narayan (P.W.3), Eknath,
Devaibai and Appa who were present in their respective lands
nearby rushed to the scene. Three of them, namely, Nivrutti,
Jalinder and Eknath were also beaten up by the accused. Gana
and Sopan who had in the meantime fallen down on the bed of
the Nala were then removed by the accused to the common
bandh nearby where they were further assaulted resulting in
instant death of Sopan and death of Gana a few hours later.
Information about the incident was given to the police by
Vithal (P.W.1) and on that information a case was registered
against the accused persons which ultimately ended in a
chargesheet.
The accused persons pleaded not guilty to the charges
levelled against them and their defence was, as it can be
gathered from the first Information Report lodged by
appellant Ansaram (which gave rise to the cross case), the
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statements made by them in their examination under section
313 Cr.P.C. and the suggestions put to the prosecution
witnesses, that the Nala in question did not exclusively
belong to the deceased but was in possession of both the
parties. On August 16, 1982 the two deceased and Nivrutti
had tried to uproot the cactus plants from the boundary of
their land, but owing to the resistance offered by the
servants and the ladies of their household they had fled
away. As regards the incident of August 17, 1982 their
version was that the appellants Bajirao and Ansaram had gone
to their field to see the damage done to their cactus growth
and the appellants Dagdu and Achit had taken bullocks to the
field for grazing. Reaching there they found Gana, Sopan,
Nivrutti, Eknath and Julinder present in their land armed
with axes and Gana cutting cactus from the boundary of their
land. When Bajirao remonstrated with Gana as to why he was
cutting the cactus the latter threatened them with dire
consequences. Thereupon Gana and Sopan started assaulting
Bajirao and Ansaram with axes. When the other two appellants
present there rushed to their rescue Sopan, Eknath, Nivrutti
and Julinder joined Gana in the assault. In the melee that
ensued Bajirao and Dagdu snatched the axes from the hands of
Eknath and Nivrutti threw them there and straight away went
to the police station where Ansaram lodged information. The
other four appellants denied there presence at the time of
the incident and contended that they had been falsely
implicated.
On consideration of the evidence adduced during trial
the learned trial Judge held that the bed of the Nala along
its entire width belonged to and was in actual possession of
the two deceased only and that the appellants had nothing to
do with it. Regarding the incident of August 16, 1982 the
learned Judge held that the appellants had tried to uproot a
part of their own cactus growth and shifted it towards the
north. So far as the main incident of August 17, 1982 was
concerned the learned Judge held that the appellants had
formed themselves into an unlawful assembly to prevent the
two deceased and their party from restoring the previous
position of the cactus growth and, therefore, it could only
be said that common object of that assembly was to cause
injuries and not to commit murder. In negativing the plea of
right of private defence claimed by the appellants the
learned Judge observed that neither side had presented the
true version of the incident before the Court. In conclusion
the learned Judge constructed his version of the incident
which is reproduced below:
"It is therefore on the basis of
the above discussion it is
acceptable that the eight accused
Nos. 1 to 4 and 7 to 10 (the
appellants) had participated in
this maramari. They had gone there
to see that the deceased do not
uproot the cactus. Hence they had
assembled there for this purpose.
When the deceased and others came
there was a verbal altercation. So
at this time these accused persons
would have the common object of
preventing Gana or Sopan from
uprooting the cactus. Thereafter
the exchange of words developed
into Maramari. Thus these accused
had participated in the Maramari
with an object to prevent Gana and
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Sopan from uprooting the cactus.
Thus it can be accepted that the
assembly had assaulted Gana, Sopan,
Nivrutti, Eknath and Jalinder to
prevent them from uprooting the
cactus. It can also be accepted
that the injuries to these five
injured persons were caused by the
members of this unlawful assembly
while trying to achieve their
object of preventing Gana and Sopan
from uprooting the cactus. Also
from the earlier discussion it can
be accepted that initially only the
Maramari with sticks took place.
Therefore from these circumstances
accused can be accepted to have the
common object of the assembly of
beating with sticks and causing
injuries with sticks. It can
therefore be accepted that when
Gana, Sopan, Nivrutti, Eknath and
Jalinder resisted and had also
caused injuries to accused Nos. 1
to 4 including injuries with sharp
edged weapon, the accused Nos. 1 to
3 used axes. Hence under these
peculiar circumstances it is
difficult to accept that the common
object of the assembly was to cause
injuries which would be sufficient
in normal course of nature to cause
death. This is made more clear
because only one incised injury is
caused to Gana and only the incised
injuries are caused to Sopan on his
head. One incised injury is caused
to the area of Sopan. This
therefore makes out that the
intention of the common object of
the assembly could not have been to
cause death of Sopan or Gana
otherwise there would have been
numerous incised injuries."
In disagreeing with the ultimate order of the trial Judge
the High Court first referred to the patent legal
infirmities appearing therein. It first pointed out that not
only the conviction recorded against all the appellants both
under Sections 147 and 148 IPC was legally impermissible but
the learned Judge did not even care to ascertain whether a
particular appellant was carrying a deadly weapon before
invoking the later Section. The High Court then noticed that
the trial Judge had given the benefit of the Fourth
Exception to Section 300 IPC to appellants Bajirao and Dagdu
in utter disregard of the provisions thereof and made the
following observations:
"On reading it, even a laymen would
realise that for attraction of the
exception a number of conditions
must be fulfilled. The death ought
to be caused in a sudden fight,
without premeditation, in the heat
of passion, upon a sudden quarrel.
Then the offender should not have
taken any undue advantage or acted
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in a cruel or unusual manner. We
may repeat that the two deceased
had each sustained more than a
dozen of injuries. It is common
ground that the dispute between the
two sides over the Nala, had been
smouldering for a number of years.
The learned Judge expressly holds
that the accused persons had
appears on the scene of 17th with
the avowed object of resisting by
force any attempt on the part of
Gana and party to restore the
cactus hedge to its original place.
It is difficult to appreciate how a
fight arising in these
circumstances could be legitimately
termed as a fight without
premeditation or in a heat of
passion or upon a sudden quarrel."
The High Court next held that the appreciation of the
evidence by the trial judge was, to say the least,
superficial and ambivalent and to draw such conclusions it
referred to various observations made by him. The High Court
then proceeded to discuss the evidence and on such
discussion held that the finding of the trial Court that the
land under the Nala exclusively belonged to and was in
possession of Gana and that the appellants had no right to
it, possessor or proprietary was correct and, consequently
the appellants had no right of private defence of property.
The next question which the High Court posed for an answer
was whether the appellants could claim right of private
defence of their persons in the context of the fact that
four of them had sustained some injuries in the incident. To
answer this question the High Court discussed the evidence
of the eye witnesses and held that having regard to the fact
that on August 16, 1982 the accused persons had uprooted the
cactus and thorny fencing, it was evident that their object
was to consolidate the encroachment on Gana’s land right
upto northern bank. Judged in that background, it could be
safely concluded that when on the following day they came
armed with axes and sticks and inflicted 40 injuries on
their adversaries, they were the aggressors. As regards the
injuries found on the person of the accused the High Court
observed that they were minor and superficial and the
evidence on record was so clear and cogent to prove that the
appellants were the aggressors that it far outweighed the
effect of the omission on the part of the prosecution to
explain the injuries. In making the above observations the
High Court drew inspirations from the judgment of this Court
in Lakshmi Singh vs. State of Bihar AIR 1976 SC 2263 and
Ramlagan Singh Vs. State of Bihar AIR 1972 SC 2593. Lastly
the High Court took up the question as to what was the
common object of the unlawful assembly which caused the
death of Gana and Sopan and injured others. The finding of
the High Court in this regard is as under:
"The extent of violence indulged in
by them and the damage brought on
Gana and party, loaves no doubt
about the common object of the
Assembly. Needless to say, it was
to commit murderous assault on Gana
and his associates. The lower Court
has resorted to a strange reasoning
for its conclusion that the common
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object was restricted to causing
ordinary injuries only. The learned
judge observes that had the accused
persons really intended to commit
murderous assault, then they would
not have spared lives of Jalindar,
Eknath, Nivrutti, Vithal, his
brother Munja, Devaibai and others
who had come to the rescue of the
deceased. The learned Judge also
feels that if the common object was
to commit murder, the assailants
would have dealt greater number of
axe blows on the heads of the
deceased and other victims of
assault. We cannot persuade
ourselves to endorse this queer
reasoning. The learned Judge is
pegging his standards too high,
when he thinks that the assembly
would have killed all the eight
persons or at least used their axes
mofe liberally than they actually
did, if the common object was to
mount a murderous assault. We
reiterate our finding that the
performance of the assembly is
spectacular enough to credit them
with the common object of
committing murderous assault. As
the barest minimum, the members did
know that it was quite likely that
in an assault by a group of eight
armed with axes and sticks, the
offence or murder could be
committed. The latter part of
Section 149 IPC also stands
squarely attracted."
We have heard the learned counsel appearing for the parties
and have considered the judgments in the light of the
evidence on record. In view of the concurrent findings of
the learned Courts below, that the deceased were the owner
and in possession of the land under the Nala and that the
appellants had no right, title, interest or possession
therein it must be held that the appellants were not
entitled to any right of private defence of property. As
regards the manner in which the incident took place the
prosecution rested its case upon the evidence of Vithal (PW
1), Jalinder (PW 2), Narayan (PW 3), Eknath, Nivrutti, (PW
11). Their claim that they had witnessed the incident stands
corroborated by the fact that they were named as the rioters
in the counter case. The fact that Nivrutti (PW 11), and
Jalinder (PW2) sustained injuries in the incident also goes
a long way in support of the probative value of their
evidence. Their evidence unmistakably proves that the
appellants had come to the field armed with axe and lathis
and attacked the complainant party without any provocation
whatsoever. When their evidence is road alongwith the
medical evidence that the injuries sustained by the four
accused were minor and superfluous, it cannot but be said
that the finding of the High Court that the appellants were
the aggressors and therefore, they had also no right of
private defence of person is unexceptionable.
Coming now to the question as to what was the common
object of the unlawful assembly it is evident from the
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circumstances leading to the incident, the manner in which
it took place, the weapons used and the nature, number and
location of the injuries inflicted upon the two deceased
that the appellants had come to the field for murderous
assault. The High Court was, therefore, fully justified in
reversing the finding of the trial Court in this regard and
holding that the appellants shared such a common object.
Mr. Lalit brought to our notice quite a few omissions
in the police statements of the eye witnesses as regards the
lndividual role played by the appellants in the assault.
Having carefully gone through those admission we are unable
to hold that they are material omissions, for they related
only to the actual portions of the body where the individual
appellants inflicted the blows and not to their
participation in the assault itself. Mr. Lalit also
strenuously argued before us that even if the entire
prosecution case was accepted the appellants Bajirao and
Dagdu who assaulted the deceased with axes could only be
held liable under Section 302 read with Section 34 of the
Indian Penal Code for they might have the common intention
to cause the death of the two victims but it could not be
said that all the members of the unlawful assembly shared
such a common object as they had only used sticks for which
they could be liable under Section 325 or 323 IPC with the
aid of Section 149 IPC. We do not find any substance in this
contention for the evidence on record clearly shows that it
was only after the two deceased were assaulted with axes by
the two appellants that the other appellants started beating
them with lathis resulting in a number of injuries, which
according to the doctor could be caused thereby, including
fractures; and that clearly indicates that they also wanted
to ensure their deaths.
On the conclusions as above we do not find any merit in
these appeals, which are accordingly dismissed. The
appellants, who are on bail, will now surrender to their
bail bonds to serve out the remainder of the sentence.