Full Judgment Text
2025 INSC 1266
REPORTABLE
IN THE SUPREME COURT OF INDIA
(CRIMINAL APPELLATE JURISDICTION)
CRIMINAL APPEAL NO. 1755 OF 2011
HARIBHAU @ BHAUSAHEB DINKAR KHARUSE & ANR.
…APPELLANTS
VERSUS
THE STATE OF MAHARASHTRA …RESPONDENT
WITH
CRIMINAL APPEAL NO(s). 150-151 OF 2013
J U D G M E N T
VIPUL M. PANCHOLI, J.
1. Criminal Appeal No. 1755 of 2011 is an appeal filed under Section 379
of the Code of Criminal Procedure, 1973 (hereinafter referred to as
“ the CrPC ”) and Section 2(a) of the Supreme Court (Enlargement of
Criminal Appellate Jurisdiction) Act, 1970 (hereinafter referred to as
Signature Not Verified
Digitally signed by
KANCHAN CHOUHAN
Date: 2025.10.29
16:54:51 IST
Reason:
“ the Supreme Court Act ”), by Haribhau @ Bhausaheb Dinkar Kharuse
(accused no. 3/appellant no. 1) and Raju @ Rajendra Bhiwrao Shirwale
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Criminal Appeal No(s). 1755 of 2011 & 150-151 of 2013 Page 1 of 25
(accused no. 4/appellant no. 2), challenging the final judgment dated
02.02.2011 passed by the High Court of Judicature at Bombay in
Criminal Appeal No. 626 of 2001, whereby the High Court partly
allowed the said appeal and reversed the order of acquittal for the
offence punishable under Sections 302 and 307 read with Section 149
of the Indian Penal Code, 1860 (hereinafter referred to as “ the IPC ”),
vide the judgment dated 18.05.2001 passed by the VIII Additional
Sessions Judge, Pune, in Sessions Case No. 72 of 2000.
2. Criminal Appeal No. 150-151 of 2013 is an appeal filed under Section
379 of the CrPC and Section 2(a) of the Supreme Court Act, by
Subhash Raghunath Pawar (accused no. 6/appellant), challenging the
final judgment dated 02.02.2011 passed by the High Court of
Judicature at Bombay in Criminal Appeal No. 517 of 2001, whereby the
High Court dismissed the said appeal and confirmed the order of
conviction for the offence punishable under Section 307 read with
Section 149 of the IPC. The High Court also reversed the order of
acquittal for the offence punishable under Sections 302 read with
Section 149 of the IPC vide the judgment dated 18.05.2001 passed by
the VIII Additional Sessions Judge, Pune, in Sessions Case No. 72 of
2000.
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FACTUAL MATRIX
3. The brief facts of the present case as per the appellants is that from
25.04.1999 to 27.04.1999, several wedding ceremonies were held in
different branches of the Gholap family at village Kari, Pune District.
On 26.04.1999, during a wedding procession, Ankush Gholap was
assaulted on his head by Vitthal Deoba Gholap, brother of
Pandharinath Devba Gholap (accused no. 1). Ankush subsequently
registered a police complaint that same night with Bhor Police Station.
4. On 27.04.1999, Ankush, along with Dnyanoba Ravba Gholap, Rajendra
Gholap (PW-7) and Shivaji Sanas (PW-9), travelled to Bhor in a jeep
driven by Sopan Dagadu Gholap (PW-1). While returning, near Navi
Ali, they stopped. At this point, accused no. 1 and Maruti Ramchandra
Gholap (accused no. 2) arrived on a motorbike driven by accused no.
3. The accused no. 4 drove another motorbike with two pillion riders,
namely, Vitthal Baburao Shinde (accused no. 5) and accused no. 6. The
accused no. 3 removed the jeep’s keys and punched PW-1. Meanwhile,
the other accused persons dragged Ankush, PW-7 and PW-9 from the
jeep. The accused no. 1 and 2 attacked Ankush with sharp weapons,
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Criminal Appeal No(s). 1755 of 2011 & 150-151 of 2013 Page 3 of 25
causing his death on the spot while PW-7 and PW-9 sustained serious
injuries and PW-1 managed to escape and later reported the incident
to police.
5. The postmortem examination of Ankush (deceased) was conducted by
Dr. Praveen Chaudhary (PW-16), confirming death due to
haemorrhagic shock from multiple injuries caused by sharp weapons.
PW-7 and PW-9 were treated for grievous injuries at local hospitals.
The accused persons were arrested and the charge sheet was filed.
6. The Sessions Court framed charges against the accused persons for
committing offences punishable under Sections 147, 148, 149, 302, 307
of the IPC and alternatively under Sections 302, 307 read with Section
34 of the IPC. During the trial, 27 witnesses were examined. The
defence presented one alibi witness, Balasaheb Gholap (DW-1), for
accused no. 1 and 2.
7. The trial court, on 18.05.2001, convicted accused No. 1 and 2 for
committing offences punishable under Sections 302 and 307 of the
IPC, sentencing them to life imprisonment and rigorous imprisonment
for a period of seven years, respectively. The accused no. 6 was also
convicted for committing an offence punishable under Section 307 of
the IPC and sentenced to imprisonment for a period of seven years
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and was acquitted for the offence punishable under Section 302 read
with Section 149 of IPC. The accused no. 3, 4 and 5 were acquitted due
to insufficient evidence.
8. Before the High Court, accused no. 1, 2 and 6 filed appeals
challenging their convictions, while the State appealed the acquittal of
accused no. 3, 4 and 5. Vide the impugned judgment, the High Court
partly allowed the State’s appeal, reversing the acquittal of accused
no. 3 and 4. The High Court dismissed the appeals filed by accused no.
1, 2 and 6, confirming their convictions. The High Court further
reversed the acquittal of accused no. 6 under Section 302 read with
Section 149 of the IPC.
9. Vide the impugned judgment, accused no. 1, 2, 3, 4 and 6 were held
guilty for the offences punishable under Sections 147, 148, 149 and
Sections 302 and 307 read with Section 149 of the IPC and were
sentenced with rigorous imprisonment for life for the offence
punishable under Section 302 read with Section 149 of the IPC and
with rigorous imprisonment for ten years for the offence punishable
under Section 307 read with Section 149 of the IPC.
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10. Aggrieved by the impugned judgment, accused no. 3 and 4 (appellant
no. 1 and 2) and accused no. 6 (appellant) have filed the present
appeals.
SUBMISSIONS ON BEHALF OF APPELLANT NO. 1 & 2
11. Learned counsel for the appellant no. 1 and 2 contended that the High
Court erred in reversing a well-reasoned acquittal by the Trial Court
and raised the following grounds:
A. Ingredients of Section 149 of the IPC were not made out;
B. High Court overstepped its jurisdiction by interfering with a
plausible view of acquittal;
C. Contradictions among eyewitnesses of the incident in question;
and
D. No recovery or evidence against accused no. 3/appellant no. 1.
12. First , it was argued that Section 149 of the IPC requires proof of a
common object among at least five or more persons. The prosecution’s
own witnesses gave contradictory statements about whether accused
no. 3/appellant no. 1 possessed a knife.PW-1 made inconsistent claims
and admitted omissions in his earlier statements. No weapon was
recovered from accused no. 3/appellant no. 1 and there was no
evidence that he shared the intention to kill.
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13. Since accused no. 5 remained acquitted and accused no. 3/appellant
no. 1 was not proven guilty, only four persons could be said to have
participated, which is below the minimum threshold of five members
required under Section 141 of the IPC for constituting an unlawful
assembly. Moreover, there were no specific allegations of assault by
accused no. 4/appellant no. 2, further weakening the prosecution’s
case.
14. Reliance was placed on Daya Kishan v. State of Haryana, (2010) 5
SCC 81 and Naresh v. State of Haryana, (2023) 10 SCC 134, where this
Court held that mere presence in an unlawful assembly without
participation or intent cannot attract liability under Section 149 of the
IPC.
15. Secondly , learned counsel for the appellant no. 1 and 2 argued that the
High Court exceeded its jurisdiction by overturning a plausible and
well-reasoned acquittal. Relying upon Murugesan v. State, (2012) 10
SCC 383 (paras 32-34) and Siju Kurian v. State of Karnataka, (2023)
14 SCC 63 (para 21), it was submitted that a High Court can only
reverse an acquittal when the Trial Court’s view is perverse or
unreasonable. Since the Trial Court’s conclusions were based on a
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detailed assessment of contradictions and witness credibility, the High
Court’s interference was unwarranted.
16. Thirdly , it was submitted that the defence highlighted material
discrepancies between the statements of PW-1 and PW-7 regarding
the weapons used and the role of the accused persons. PW-7, one of
the injured eyewitnesses, was in critical condition when his statement
was recorded. The Trial Court observed that PW-7 was not medically
fit to give a coherent account at that time, undermining the reliability
of his testimony. Thus, these inconsistencies should have prevented
the High Court from relying on these witnesses.
17. Lastly , it was submitted that the Trial Court had categorically held that
there was no recovery from accused no. 3/appellant no. 1 and no
evidence that he had assaulted anyone or even possessed a weapon. It
found that the allegation that accused no. 3/appellant no. 1 held the
deceased while others attacked was unsupported by evidence.
18. Thus, learned counsel for the appellant no. 1 and 2 contended that the
Trial Court’s acquittal was based on a sound appreciation of evidence
and contradictions in witness statements. The High Court ignored
these crucial findings and erred in convicting appellant no. 1 and 2
without establishing their participation, intent or the existence of an
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Criminal Appeal No(s). 1755 of 2011 & 150-151 of 2013 Page 8 of 25
unlawful assembly. Therefore, the impugned judgment is liable to be
set aside and appellant no. 1 and 2 to be acquitted of all charges.
SUBMISSIONS ON BEHALF OF APPELLANT (ACCUSED NO. 6)
19. Learned counsel for the appellant (accused no. 6) submitted that the
evidence on record does not establish that appellant was a member of
an unlawful assembly sharing a common object under Section 149 of
the IPC to commit murder. The prosecution itself admitted that
appellant did not inflict any injury upon the deceased and the only
allegation against him is of causing hurt to PW-7. Consequently, the
finding of guilt under Section 302 read with Section 149 of the IPC is
unsustainable and the High Court erred in reversing the well-
reasoned acquittal by the Sessions Court. The evidence, at best, may
indicate participation in an incident resulting in hurt, but not in a
premeditated murder committed in furtherance of a common object.
20. It is further submitted that the incident in question occurred suddenly
and without premeditation. The Sessions Court, after examining the
evidence, particularly the testimony of PW-1, found material omissions
and contradictions regarding the alleged possession of knives and the
role of appellant. These omissions in the FIR and the witness’s
admission that certain facts were not recorded clearly indicate that the
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Criminal Appeal No(s). 1755 of 2011 & 150-151 of 2013 Page 9 of 25
alleged assault was a sudden incident, concluding within a short time.
Such circumstances negate any inference of a shared common object
to commit murder.
21. Moreover, appellant was not named in the FIR, which merely referred
to unidentified pillion riders accompanying another accused on a
motorcycle. The arrest and seizure proceedings are also doubtful, as
the panch witness turned hostile and the search of appellant’s house
was conducted even before his formal arrest, contrary to the
procedure established under the CrPC. These irregularities severely
undermine the credibility of the investigation and the prosecution’s
case.
22. Further, the identification parade was conducted after an inordinate
delay of 52 days and was procedurally flawed, as two accused persons
were shown together in the same parade. The Sessions Court rightly
found such identification unreliable. Reliance is placed on the
principles laid down in Shivaji Sahabrao Bobde v. State of
Maharashtra, (1973) 2 SCC 793 , where this Court held that an accused
must be proved guilty beyond all reasonable doubt and mere
suspicion cannot form the basis of conviction.
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23. Learned counsel for the appellant also relied on Chellappa v. State,
(2020) 5 SCC 160 (paras 10 and 11) , wherein it was held that when
there exists doubt as to whether the accused shared the common
intention to commit murder, the benefit of such doubt must go to the
accused. Similarly, in M.C. Ali & Anr. v. State of Kerala, (2010) 4 SCC
573 , this Court emphasized that if two views are reasonably possible,
the appellate court should not interfere with the acquittal recorded by
the trial court.
24. Thus, it is submitted that the impugned judgment is liable to be set
aside and the judgment passed by the Sessions Court is to be
restored.
SUBMISSIONS ON BEHALF OF RESPONDENT
25. Learned counsel for the respondent submitted that the conviction of
the appellants was based on the consistent and credible ocular
evidence of injured witnesses, duly corroborated by medical
evidence and recoveries made at the instance of the accused persons.
The High Court also relied on Section 149 of the IPC, holding that the
prosecution had proved beyond reasonable doubt the presence,
knowledge and participation of the appellants in the crime committed
on 27.04.1999, resulting in the death of the deceased.
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26. Section 149 of the IPC embodies the principle of vicarious liability,
holding every member of an unlawful assembly responsible for
offences committed in prosecution of its common object or for acts
they knew were likely to be committed. Reliance was placed on
Masalti v. State of U.P., AIR 1965 SC 202 and Lalji & Ors. v. State of
U.P., (1989) 1 SCC 437, which clarifies that once it is established that
an unlawful assembly existed and an offence was committed in
pursuant of its common object, every member is equally culpable,
irrespective of who inflicted the fatal act.
27. Applying this principle, learned counsel for the respondent
contended that the appellants, by riding the motorbikes carrying co-
accused persons armed with weapons to the crime scene, facilitated
the commission of murder and thus shared the requisite knowledge
and common object. The evidence on record, therefore, fully
established that the appellants were members of the unlawful
assembly at the relevant time and were rightly held guilty under
Sections 302 and 307 read with Section 149 of the IPC.
28. Thus, learned counsel for the respondent submitted that in light of the
evidence and settled legal principles, the present appeals are liable
to be dismissed as they are devoid of merit.
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ANALYSIS AND FINDINGS
29. We have heard learned counsel for the parties and perused the
material available on record. At the outset, it is well settled that
interference with an order of acquittal must be exercised with great
caution. However, such interference is justified where the findings of
the Trial Court are manifestly perverse, unreasonable or contrary to
the evidence on record. In Chandrappa v. State of Karnataka, (2007) 4
SCC 415 (para 42) , this Court held that an appellate court possesses
full power to review, reappreciate and reconsider the evidence upon
which the order of acquittal is founded and to reach its own
conclusions if the view taken by the trial court is not reasonably
sustainable.
30. Applying these principles to the present case, it is evident that the
acquittal recorded by the Trial Court suffered from a fundamental
misappreciation of evidence. The Trial Court overlooked the
consistent and corroborated testimony of injured eyewitnesses and
failed to appreciate the legal effect of the active participation of the
appellants as members of an unlawful assembly. The High Court, in
reversing the acquittal, has given cogent and well-reasoned findings
based on a proper appraisal of the record.
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Evidence on Record
31. The prosecution examined PW-1, PW-7 and PW-9 as eyewitnesses, of
whom PW-1 is the complainant, while PW-7 and PW-9 are injured
witnesses.
32. The relevant paragraph of the deposition of PW-1 reads as under:
“4. On 27.4.1999 … Bhausaheb Dinkar Kharuse came on his
motor-cycle and Pandharinath Deoba Gholap and Maruti
Ramchandra Gholap were sitting behind him on the motor-
cycle. The Rajendra Shira wale came on Bullet motor-cycle.
Behind him two unknown persons were sitting on the said
Bullet motor-cycle. I was knowing all these persons. The
persons are present today in the Court. I can identify them in
the Court. (The witness had gone near the dock of the
accused where they are sitting.) He pointed his finger
towards accd. No.1 and told that his name is Pandharinath
Deoba Gholap. (I verified the same. He has identified
correctly.) The witness pointed out the accused sitting at the
second place from the accused No.1, and told that his name
is Maruti Ramchandra Gholap. (I verified the same and found
that he had correctly identified accused No.2.) the witness
pointed the accused sitting at the third place and told his
name as Bhausaheb Dinkar Kharuse. (I verified and found
that he is accused No.3.) (The witness pointed out the finger
to the accused sitting at fourth place and told his name that
he is Rajendra Shirawale. (I verified and found that he is
accused No.4.) I can identify those unknown persons who
came on the Bullet motor-cycle of Rajendra Shirawale. (The
witness has pointed out the accused Nos.5 and 6.) Both the
motor-cycles were stopped on the left side of my jeep. All the
accused persons got down from the motor-cycles. The
accused persons removed weapons from the diccies of their
motor-cycles. The accused No.2 Maruti was possessing
Sattur, the accused No.1 Pandharinath and accused Nos.5
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and 6 were possessing knives (Suri), accused Nos.3
Bhausaheb and accd. No.4 Rajendra were possessing the
knives. Accused No.3 Bhausaheb came near my jeep and he
took off the key of my jeep. He gave first blow on my mouth.
Thereafter, he immediately went behind the jeep. I saw
black. All the accused were standing behind my jeep. They
opened the rear side door of my jeep. They pulled Ankush
Bhausaheb Gholap, Rajendra Maruti Gholap, Shivaji
Sakharam Sanas and Gynaba Nagu Gholap on road from my
jeep. The accused No.3 Bhausaheb was holding Ankush.
Accused No.1 Pancharinath and No.2 Maruti assaulted
Ankush on his stomach by Sattur and knife. Accused Nos.1
and 2 also assaulted Ankush on his head, stomach, back,
hand. The intestine of the Ankush was came out of his
stomach. He fall on ground. The accused Nos.1 and 2 and his
campanions, the campanions were accused No.3 and 4 and
unknown persons i.e. accused Nos.5 and 6 went towards
Rajendra Maruti Gholap and Shivaji Sakharam Sanas. They
assaulted them with weapons. I was afraid and therefore, I
got down from the jeep. The two unknown person came
towards me. They are accused Nos. 5 and 6, before the Court.
They came to assault me. I ran towards market. Those
persons who assaulted us i.e. the accd. before the Court
stated their motor-cycles and went away I case near my
jeep.”
33. The relevant paragraph of the deposition of PW-7 reads as under:
“3. On 27.4.1999 … Haribhau alias Bhausaheb Dinkar
Kharuse came on his motor-cycle. Pandharinath Deoba
Gholap and Maruti Ramchandra Gholap were sitting behind
him on his motor-cycle. With the said motorcycle another
motor-cycle came. Raju Shirawale was driving that motor-
cycle. Behind him Subhash Raghunath Pawar and one person
wearing red colour shirt were sitting. I know all the persons
whose named I have stated above. I can identify them. They
are present in Court. (The witness went to the dock of the
accused and pointed out one accused, and told his name as
Pandharinath Deoba Gholap. The accused was asked to
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Criminal Appeal No(s). 1755 of 2011 & 150-151 of 2013 Page 15 of 25
stand. I asked his name and he told his name as
Pandharinath Deoba Gholap. The witness pointed one of the
accused and told his name as Maruti Ramchandra Gholap. I
asked the name of the accused and he told his name as
Maruti Ramchandra Gholap. He is accused No.2. The witness
pointed one of the accused sitting in the dock and told his
name as Haribhau alias Bhausaheb Dinkar Kharuse. The
accused told his name as Haribhau Dinkar Kharuse. He is
accused No.3. The witness pointed one of the accused sitting
in the dock and told his name as Raju alias Rajendra Bhivrao
Shirawale. I asked the name to the accd. and he told his
name as Raju Bhivrao Shirawale. He is accused No.4. Then
witness pointed his finger to one of the accused sitting in the
dock that he is the same per who worn the red colour shirt
on that day. I asked him his name. He told his name as Vitthal
Baburao Shinde. He is accused No.5. The witness pointed his
finger towards one of the accd. sitting in the dock and told
his name Subhash Raghunath Pawar. I asked his name. He
told him name Subhash Raghunath Pawar. I asked his name.
He told his name Subhash Raghunath Pawar. He is accused
No.6. The motor-cycles were stopped on the left side of the
jeep. All the accused down from the motor-cycles. The
accused persons removed the weapons from the diccies of
the motorcycles. The accused No.1 Maruti Gholap was
holding Sattur in his hand. The accused No.1 Pandharinath
Gholap was holding knife (suri). (The accused No.4 Raju
Shirwale, accd. No.5 Vitthal Shinde i.e. the person who worn
the red shirt, accd. No.6 Subhash Pawar/were holding knives.
(Accd. No.3 Bhausaheb went near Sopan. He removed the
keys jeep and gave fist below on the fact of Sopan Dagadu
Gholap. (By that time, accused No.1 Pandharinath, No.2-
Maruti, accd. No.4 Rajendra, accused No.5 Vitthal i.e. the
person wearing red shirt and accused No.6 Subhash came
behind the jeep. The accused No.3 Haribhau also came
behind the jeep. They opened the backside door of the jeep.
They dragged us out of the jeep. They dragged Ankush
Gholap, Shivaji Sanas, and myself, out of the jeep. After
dragging out of the jeep, accused No.3 Bhausaheb Kharuse
caught hold Ankush. Thereafter, accused No.1 Pandharinath
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Criminal Appeal No(s). 1755 of 2011 & 150-151 of 2013 Page 16 of 25
accused No.2 Maruti assaulted Ankush by Sattur and knife,
Ankush was assaulted at his chest, stomack backside of the
head and back. The intestine of the Ankush came out of the
stomach and he fall, on ground. Thereafter, the accused
started assaulting Shivaji Sanas. Shivaji Sanas rescued
himself from the hands of the accused and ran away. Accused
No.4 Raju caught hold of me. The accused No.6 Subhash
inflicted two blows on my chest. Accused No. 2 Maruti
inflicted blows on my back. I fall in front of the shop of
Mhasawade by haltering. The persons who had worn red
shirt, accused No. 5 inflicted blows on my right hand.”
34. The relevant paragraph of the deposition of PW-9 reads as under:
“3. On 27.4.1999 … Bhausabeb Kharuse came on
motorcycle, along with Pandharinath Deoba Gholap and
Maruti Ramchandra Gholap. With them, Raju Shirawale, came
on bullet motor-cycle with Subhash Pawar and one unknown
person wearing red shirt. The above persons came on the
motorcycles, are known to me. I can identify them, if shown to
me. They are present in the court-hall. (The witness went to
the dock where the accused persons are sitting. He touched
one accused sitting amongst others, and told his name as
Pandharinath Gholap. I verified the same. The accused told
his name as Pandharinath Gholap. He is accused told his
name as Pandharinath Gholp. He is accused No.1. The
witness pointed finger to one person of the accused sitting
amongst others and told his name as Maruti Gholap. The
accused told his name Maruti Gholap. He is accused No.2.
The witness pointed one of the accused sitting sitting
amongst the other and told his name as Bhausaheb Kharuse.
The accused told his name as Haribhau Dinkar Kharuse. He
is accused No.3. The witness pointed one of the accused
sitting amongst the others and told his name as Raju
Shirawale. The accused stood up and told his name as Raju
Shirawale. He is accused No.4. The witness pointed one of
the accused sitting in the dock and told his name as Subhash
Pawar. The accused stood and told his name as Subhash
Raghunath Pawar. He is accused No.6. The witness pointed
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one of the accused sitting in the dock and told that he is
unknown person who was wearing red shirt at that time. The
accused stood and hold his name Vitthal Baburao Shinde. He
is accused No. 5. The accused persons stopped their motor-
cycles by the side of our jeep. They got down from the motor-
cycles. They removed the weapons from the diccies of their
motor-cycles. The accused No.2 Maruti Gholap was holding
Sattur in his hand. Accused No. 1 Pandharinath Gholap
accused No. 3 Haribhau Kharuse, accused No.4 Raju
Shirawale, accused No.5 who was wearing red shirt and
accused No. 6 Subhash were holding knives in their hands.
Accused No.3 Bhausaheb Kharuse then went to Sopan
Gholap. All other accused came behind our jeep. They
opened the back-door of the jeep and dragged us out of the
jeep. Accused No.3 Bhausaheb Kharuse ought hold Ankush.
The accused No.2 Maruti and accused No.1 Pandharinath
assaulted Ankush by Sattur and knife. Ankush was assaulted
on his stomach, chest, on both the hands, back his head, and
on legs. The intestine of the Ankush came out of the stomach,
and he fall down on earth. Thereafter, the accused No.1
Pandharinath, accused No.2 Maruti, accused No.6 Subhash
and accused No.5 unknown person wearing red shirt and
accused No.4 Raju Shirawale came to me. The accused No.2
Maruti Gholap inflicted blow on backside of my head,
accused No.6 Subhash Pawar inflicted blow on my hand,
accused No.1 Pandharinath Gholap inflicted blow on my
waist. I feel uneasy and I fell down on the earth. All the
accused then went towards the Rajendra Gholap and
assaulted him. In order to save myself I ran towards
vegetable market.”
35. On a careful perusal of the above depositions, it is revealed that the
testimonies of the eyewitnesses are natural, coherent and mutually
corroborative on all material particulars. They consistently deposed
that on 27.04.1999, the accused persons, including the present
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appellants, arrived at the scene on two motorcycles armed with
deadly weapons such as knives and sattur . The appellants actively
facilitated the commission of the offence by accompanying the co-
accused persons, ensuring the confinement of the victims and
participating in the coordinated assault.
36. PW-1 and PW-7 categorically stated that appellant no. 1 and 2
(accused no. 3 and 4) were among those who surrounded the
deceased and the injured witnesses, thereby preventing their escape
and were fully aware that the co-accused persons were armed. The
evidence further establishes that appellant (accused no.6) inflicted
grievous injuries upon PW-7, demonstrating his direct participation in
the attack. PW-9 corroborated these accounts and unambiguously
identified all three appellants as members of the group acting in
concert and sharing a common objective.
37. The consistent narrative of these eyewitnesses leaves no room for
doubt that appellants no. 1 and 2 (accused no. 3 and 4), by
transporting the armed assailants to the spot and facilitating the
attack, and appellant (accused no. 6), by inflicting injuries during the
assault, were integral participants in the execution of the unlawful
design.
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Medical Corroboration
38. The High Court also noted the medical evidence in the present case,
which reads as under:
“8. As noted earlier P.W.16- had conducted postmortem
examination of the dead body of Ankush on 27th April, 1999
at about 2.30 p.m., and sent the postmortem report at Exhibit
70. As per Dr. Praveen Haribhau Chaudhary the deceased
Ankush had sustained the following injuries:-…
9. … The Medical Officer further stated that the external as
well as internal injuries could be caused by hard and sharp
weapon like that of Sattur and knife, articles 7, 9 and 10
shown to him in the Court while he was in the witness box.
He also stated that all the injuries were ante-mortem and
fresh and they were sufficient to cause death in the ordinary
course of nature. In his opinion the deceased died due to
haemorrhagic shock due to multiple injuries to vital organs
like heart, liver, kidney, intestinal vessels and brain.
10. P.W.9- Shivaji Sakharam Sanas was also examined by him
on 27th April, 1999 when he was taken to the Rural Hospital,
Bhor without a police yadi. He had prepared emergency
case papers for the patient (accused No.69) and as per him
the injuries were grievous in nature. The following external
injuries were seen on the person of Shivaji Sakharam Sanas:-
…
He also stated that if the patient would not have got proper
treatment immediately, he would have landed in
haemorrhagic shock due to blood loss which would have
possibly caused his death. Hence the patient was
immediately referred to Sassoon Hospital at Pune for further
treatment because the injuries required expert
management. As per the evidence of P.W.19 Dr. P.K. Sancheti,
P.W.9 - Shivaji Sakharam Sanas came to be admitted in the
Sancheti Hospital at Pune on 27th April, 1999 at about 5.00
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Criminal Appeal No(s). 1755 of 2011 & 150-151 of 2013 Page 20 of 25
p.m., and apart from the injuries noted by P.W.16, Shivaji had
sustained the following injuries on his person:-…
P.W.19 stated before the Court that the injuries on the had
was of grievous nature and they could be caused by sharp
and hard object like that of Sattur and knife shown to him in
the Court. The injury on the hand could be possible by the
knife as was shown to him. He also stated that Shivaji was
issued a certificate on 6th May, 1999 and came to be
discharged on the same day. He had placed before the Court
the medical papers at Exhibit 76. He also admitted that he
had treated Shivaji on 27th April, 1999 between 5.30 p.m. to
6.00 p.m., and Shivaji had given the history of assault.
11. As per P.W.21- Dr. Yogesh Pralhad Chaudhary, P.W.7-
Rajendra Maruti Gholap was admitted at the KEM Hospital
on 27th April, 1999 at 3.00 p.m., and he was discharged on
18th May, 1999 and the medical history was recorded in the
case papers placed before the Court at Exhibit 79. He was
operated on 28th April, 1999 and consequently on 13th May,
1999. When he had examined P.W.7-Rajendra Maruti Gholap
on 27th April, 1999 the following injuries were noticed on his
person: …
12. As per Dr. Yogesh Pralhad Chaudhary all the injuries
could have been caused within 5 to 6 hours and by sharp
weapons like sattur and knife. Article 7, 10, 40, 41 and 42
were shown to him before the Court. The injuries on the back
had caused the perforation of anterior and posterior wall of
descending colon which had caused feacal leak and
peritonitis. The injuries on the chest and back were sufficient
to cause death in the ordinary course of nature individually
and collectively. P.W. 7- Rajendra Maruti Gholap was treated
by Dr. S.A. Patki and his team. The history of the patient was
recorded as it was told by the accompanying person i.e.
Baburao Kothawale the father-in-law and the patient was
brought from Goregaonkar Hospital at Bhor by him. The
Doctor had noticed fracture on the 5th rib of the chest and
was described as a serious injury. The said facture could
have been caused by Article 7 if it was used by force. If the
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Criminal Appeal No(s). 1755 of 2011 & 150-151 of 2013 Page 21 of 25
knifes were used by force from the sharp edge they would
cause incised wound and if the blow is given by the sharp
side, then the edges of the wound would be clean-cut. He
denied the suggestion that the injury on the chest and
corresponding internal injury were not sufficient to cause
death in the ordinary course of nature.”
39. The medical evidence provides strong corroboration to the
prosecution’s case and reinforces the credibility of the eyewitness
testimonies. PW-16, the doctor who conducted the post-mortem on the
deceased, noted multiple incised and penetrating wounds on vital
organs, such as the heart, liver and brain, injuries sufficient in the
ordinary course of nature to cause death due to haemorrhagic shock.
Similarly, PW-7 and PW-9 sustained grievous injuries, including rib
fractures and internal perforations, as confirmed by two doctors, PW-
19 and PW-21, both of whom testified that the injuries were caused by
sharp and hard weapons like knives and sattur .
40. These medical findings align perfectly with the ocular evidence and
highlight the brutal and coordinated nature of the attack. The timing,
nature and multiplicity of injuries clearly indicate a deliberate and
orchestrated assault executed in furtherance of a common unlawful
object. The harmony between the medical and ocular evidence leaves
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Criminal Appeal No(s). 1755 of 2011 & 150-151 of 2013 Page 22 of 25
no scope for doubt as to the active participation of the appellants in
the premeditated attack.
Common Object and Vicarious Liability
41. The principal defence advanced on behalf of the appellants is that
there was no common object to commit murder and, at best, the
intention was only to cause hurt. This contention is untenable in light of
the evidence on record. The prosecution has clearly established that
all the accused persons, including the appellants, arrived together,
armed with lethal weapons and jointly executed a deliberate and
coordinated assault on the deceased and other victims. The nature of
the weapons used, coupled with the ferocity and precision of the
attack, unmistakably demonstrates that the common object of the
assembly extended well beyond merely causing hurt and
encompassed the commission of murder.
42. Section 149 of the IPC unequivocally provides that every member of
an unlawful assembly is guilty of an offence committed in prosecution
of the common object or of one which such members knew to be
likely committed in furtherance thereof. In Masalti (supra) (para 17) ,
this Court clarified that it is not necessary for each member of the
unlawful assembly to have committed a specific overt act. Once
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Criminal Appeal No(s). 1755 of 2011 & 150-151 of 2013 Page 23 of 25
participation and sharing of the common object are proved, every
member becomes vicariously liable for offences committed in
prosecution of that object.
43. In the present case, the evidence conclusively establishes that all
three appellants were members of an unlawful assembly that carried
out a premeditated and violent attack resulting in the death of the
deceased and grievous injuries to PW-7 and PW-9. The role of
appellant (accused no. 6) in inflicting serious injuries upon PW-7
demonstrates his direct involvement and awareness of the collective
design. The appellant no. 1 and 2 (accused no. 3 and 4), who
transported the armed assailants to the scene, played an equally
crucial role by facilitating the attack and ensuring its execution in
furtherance of the common object.
44. The cumulative evidence clearly shows that the appellants were not
passive spectators but active participants and facilitators in a
deliberate and planned assault. Their conduct and presence at the
scene, in concert with the armed co-accused persons, establish their
common intention and vicarious liability under Sections 302 and 307
read with Section 149 of the IPC.
CONCLUSION
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Criminal Appeal No(s). 1755 of 2011 & 150-151 of 2013 Page 24 of 25
45. Upon a comprehensive appraisal of the entire record, this Court finds
that the prosecution has proved beyond reasonable doubt that all
three appellants were members of an unlawful assembly sharing the
common object to commit murder and grievous assault. The ocular
testimonies of PW-1, PW-7 and PW-9, being natural, cogent and
corroborated by medical evidence, clearly establish the active
participation of the appellants in a concerted and premeditated
attack. The appellants have failed to raise any reasonable doubt or to
demonstrate any perversity in the findings of the High Court.
46. The High Court was correct in holding that the Trial Court’s acquittal
was unsustainable, as it failed to properly appreciate the material
evidence and adopted an implausible view contrary to the record. The
impugned judgment of the High Court reflects a careful and reasoned
reappraisal of the evidence and cannot be said to suffer from any
illegality, perversity or infirmity.
47. In view of the consistent and corroborated ocular and medical
evidence, coupled with the established presence and active
participation of accused no. 3, 4 and 6 (the appellants herein) in
furtherance of the common object, this Court finds no error in the
conviction recorded by the High Court. The ingredients of Section 149
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Criminal Appeal No(s). 1755 of 2011 & 150-151 of 2013 Page 25 of 25
of the IPC stand fully satisfied, rendering each appellant vicariously
liable for the offences committed in prosecution of the unlawful
object.
48. Accordingly, this Court finds no merit in the present appeals. The
conviction and sentence imposed on accused no. 3, 4 and 6 (the
appellants herein) by the High Court vide the impugned judgment
dated 02.02.2011 are affirmed. The appeals are dismissed as devoid of
merit.
.........……….…………………….J.
[PRASHANT KUMAR MISHRA]
....….....………………………….J.
[VIPUL M. PANCHOLI]
NEW DELHI,
OCTOBER 29, 2025.
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Criminal Appeal No(s). 1755 of 2011 & 150-151 of 2013 Page 26 of 25
REPORTABLE
IN THE SUPREME COURT OF INDIA
(CRIMINAL APPELLATE JURISDICTION)
CRIMINAL APPEAL NO. 1755 OF 2011
HARIBHAU @ BHAUSAHEB DINKAR KHARUSE & ANR.
…APPELLANTS
VERSUS
THE STATE OF MAHARASHTRA …RESPONDENT
WITH
CRIMINAL APPEAL NO(s). 150-151 OF 2013
J U D G M E N T
VIPUL M. PANCHOLI, J.
1. Criminal Appeal No. 1755 of 2011 is an appeal filed under Section 379
of the Code of Criminal Procedure, 1973 (hereinafter referred to as
“ the CrPC ”) and Section 2(a) of the Supreme Court (Enlargement of
Criminal Appellate Jurisdiction) Act, 1970 (hereinafter referred to as
Signature Not Verified
Digitally signed by
KANCHAN CHOUHAN
Date: 2025.10.29
16:54:51 IST
Reason:
“ the Supreme Court Act ”), by Haribhau @ Bhausaheb Dinkar Kharuse
(accused no. 3/appellant no. 1) and Raju @ Rajendra Bhiwrao Shirwale
_____________________________________________________________________________________________
Criminal Appeal No(s). 1755 of 2011 & 150-151 of 2013 Page 1 of 25
(accused no. 4/appellant no. 2), challenging the final judgment dated
02.02.2011 passed by the High Court of Judicature at Bombay in
Criminal Appeal No. 626 of 2001, whereby the High Court partly
allowed the said appeal and reversed the order of acquittal for the
offence punishable under Sections 302 and 307 read with Section 149
of the Indian Penal Code, 1860 (hereinafter referred to as “ the IPC ”),
vide the judgment dated 18.05.2001 passed by the VIII Additional
Sessions Judge, Pune, in Sessions Case No. 72 of 2000.
2. Criminal Appeal No. 150-151 of 2013 is an appeal filed under Section
379 of the CrPC and Section 2(a) of the Supreme Court Act, by
Subhash Raghunath Pawar (accused no. 6/appellant), challenging the
final judgment dated 02.02.2011 passed by the High Court of
Judicature at Bombay in Criminal Appeal No. 517 of 2001, whereby the
High Court dismissed the said appeal and confirmed the order of
conviction for the offence punishable under Section 307 read with
Section 149 of the IPC. The High Court also reversed the order of
acquittal for the offence punishable under Sections 302 read with
Section 149 of the IPC vide the judgment dated 18.05.2001 passed by
the VIII Additional Sessions Judge, Pune, in Sessions Case No. 72 of
2000.
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Criminal Appeal No(s). 1755 of 2011 & 150-151 of 2013 Page 2 of 25
FACTUAL MATRIX
3. The brief facts of the present case as per the appellants is that from
25.04.1999 to 27.04.1999, several wedding ceremonies were held in
different branches of the Gholap family at village Kari, Pune District.
On 26.04.1999, during a wedding procession, Ankush Gholap was
assaulted on his head by Vitthal Deoba Gholap, brother of
Pandharinath Devba Gholap (accused no. 1). Ankush subsequently
registered a police complaint that same night with Bhor Police Station.
4. On 27.04.1999, Ankush, along with Dnyanoba Ravba Gholap, Rajendra
Gholap (PW-7) and Shivaji Sanas (PW-9), travelled to Bhor in a jeep
driven by Sopan Dagadu Gholap (PW-1). While returning, near Navi
Ali, they stopped. At this point, accused no. 1 and Maruti Ramchandra
Gholap (accused no. 2) arrived on a motorbike driven by accused no.
3. The accused no. 4 drove another motorbike with two pillion riders,
namely, Vitthal Baburao Shinde (accused no. 5) and accused no. 6. The
accused no. 3 removed the jeep’s keys and punched PW-1. Meanwhile,
the other accused persons dragged Ankush, PW-7 and PW-9 from the
jeep. The accused no. 1 and 2 attacked Ankush with sharp weapons,
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Criminal Appeal No(s). 1755 of 2011 & 150-151 of 2013 Page 3 of 25
causing his death on the spot while PW-7 and PW-9 sustained serious
injuries and PW-1 managed to escape and later reported the incident
to police.
5. The postmortem examination of Ankush (deceased) was conducted by
Dr. Praveen Chaudhary (PW-16), confirming death due to
haemorrhagic shock from multiple injuries caused by sharp weapons.
PW-7 and PW-9 were treated for grievous injuries at local hospitals.
The accused persons were arrested and the charge sheet was filed.
6. The Sessions Court framed charges against the accused persons for
committing offences punishable under Sections 147, 148, 149, 302, 307
of the IPC and alternatively under Sections 302, 307 read with Section
34 of the IPC. During the trial, 27 witnesses were examined. The
defence presented one alibi witness, Balasaheb Gholap (DW-1), for
accused no. 1 and 2.
7. The trial court, on 18.05.2001, convicted accused No. 1 and 2 for
committing offences punishable under Sections 302 and 307 of the
IPC, sentencing them to life imprisonment and rigorous imprisonment
for a period of seven years, respectively. The accused no. 6 was also
convicted for committing an offence punishable under Section 307 of
the IPC and sentenced to imprisonment for a period of seven years
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Criminal Appeal No(s). 1755 of 2011 & 150-151 of 2013 Page 4 of 25
and was acquitted for the offence punishable under Section 302 read
with Section 149 of IPC. The accused no. 3, 4 and 5 were acquitted due
to insufficient evidence.
8. Before the High Court, accused no. 1, 2 and 6 filed appeals
challenging their convictions, while the State appealed the acquittal of
accused no. 3, 4 and 5. Vide the impugned judgment, the High Court
partly allowed the State’s appeal, reversing the acquittal of accused
no. 3 and 4. The High Court dismissed the appeals filed by accused no.
1, 2 and 6, confirming their convictions. The High Court further
reversed the acquittal of accused no. 6 under Section 302 read with
Section 149 of the IPC.
9. Vide the impugned judgment, accused no. 1, 2, 3, 4 and 6 were held
guilty for the offences punishable under Sections 147, 148, 149 and
Sections 302 and 307 read with Section 149 of the IPC and were
sentenced with rigorous imprisonment for life for the offence
punishable under Section 302 read with Section 149 of the IPC and
with rigorous imprisonment for ten years for the offence punishable
under Section 307 read with Section 149 of the IPC.
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Criminal Appeal No(s). 1755 of 2011 & 150-151 of 2013 Page 5 of 25
10. Aggrieved by the impugned judgment, accused no. 3 and 4 (appellant
no. 1 and 2) and accused no. 6 (appellant) have filed the present
appeals.
SUBMISSIONS ON BEHALF OF APPELLANT NO. 1 & 2
11. Learned counsel for the appellant no. 1 and 2 contended that the High
Court erred in reversing a well-reasoned acquittal by the Trial Court
and raised the following grounds:
A. Ingredients of Section 149 of the IPC were not made out;
B. High Court overstepped its jurisdiction by interfering with a
plausible view of acquittal;
C. Contradictions among eyewitnesses of the incident in question;
and
D. No recovery or evidence against accused no. 3/appellant no. 1.
12. First , it was argued that Section 149 of the IPC requires proof of a
common object among at least five or more persons. The prosecution’s
own witnesses gave contradictory statements about whether accused
no. 3/appellant no. 1 possessed a knife.PW-1 made inconsistent claims
and admitted omissions in his earlier statements. No weapon was
recovered from accused no. 3/appellant no. 1 and there was no
evidence that he shared the intention to kill.
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Criminal Appeal No(s). 1755 of 2011 & 150-151 of 2013 Page 6 of 25
13. Since accused no. 5 remained acquitted and accused no. 3/appellant
no. 1 was not proven guilty, only four persons could be said to have
participated, which is below the minimum threshold of five members
required under Section 141 of the IPC for constituting an unlawful
assembly. Moreover, there were no specific allegations of assault by
accused no. 4/appellant no. 2, further weakening the prosecution’s
case.
14. Reliance was placed on Daya Kishan v. State of Haryana, (2010) 5
SCC 81 and Naresh v. State of Haryana, (2023) 10 SCC 134, where this
Court held that mere presence in an unlawful assembly without
participation or intent cannot attract liability under Section 149 of the
IPC.
15. Secondly , learned counsel for the appellant no. 1 and 2 argued that the
High Court exceeded its jurisdiction by overturning a plausible and
well-reasoned acquittal. Relying upon Murugesan v. State, (2012) 10
SCC 383 (paras 32-34) and Siju Kurian v. State of Karnataka, (2023)
14 SCC 63 (para 21), it was submitted that a High Court can only
reverse an acquittal when the Trial Court’s view is perverse or
unreasonable. Since the Trial Court’s conclusions were based on a
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Criminal Appeal No(s). 1755 of 2011 & 150-151 of 2013 Page 7 of 25
detailed assessment of contradictions and witness credibility, the High
Court’s interference was unwarranted.
16. Thirdly , it was submitted that the defence highlighted material
discrepancies between the statements of PW-1 and PW-7 regarding
the weapons used and the role of the accused persons. PW-7, one of
the injured eyewitnesses, was in critical condition when his statement
was recorded. The Trial Court observed that PW-7 was not medically
fit to give a coherent account at that time, undermining the reliability
of his testimony. Thus, these inconsistencies should have prevented
the High Court from relying on these witnesses.
17. Lastly , it was submitted that the Trial Court had categorically held that
there was no recovery from accused no. 3/appellant no. 1 and no
evidence that he had assaulted anyone or even possessed a weapon. It
found that the allegation that accused no. 3/appellant no. 1 held the
deceased while others attacked was unsupported by evidence.
18. Thus, learned counsel for the appellant no. 1 and 2 contended that the
Trial Court’s acquittal was based on a sound appreciation of evidence
and contradictions in witness statements. The High Court ignored
these crucial findings and erred in convicting appellant no. 1 and 2
without establishing their participation, intent or the existence of an
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Criminal Appeal No(s). 1755 of 2011 & 150-151 of 2013 Page 8 of 25
unlawful assembly. Therefore, the impugned judgment is liable to be
set aside and appellant no. 1 and 2 to be acquitted of all charges.
SUBMISSIONS ON BEHALF OF APPELLANT (ACCUSED NO. 6)
19. Learned counsel for the appellant (accused no. 6) submitted that the
evidence on record does not establish that appellant was a member of
an unlawful assembly sharing a common object under Section 149 of
the IPC to commit murder. The prosecution itself admitted that
appellant did not inflict any injury upon the deceased and the only
allegation against him is of causing hurt to PW-7. Consequently, the
finding of guilt under Section 302 read with Section 149 of the IPC is
unsustainable and the High Court erred in reversing the well-
reasoned acquittal by the Sessions Court. The evidence, at best, may
indicate participation in an incident resulting in hurt, but not in a
premeditated murder committed in furtherance of a common object.
20. It is further submitted that the incident in question occurred suddenly
and without premeditation. The Sessions Court, after examining the
evidence, particularly the testimony of PW-1, found material omissions
and contradictions regarding the alleged possession of knives and the
role of appellant. These omissions in the FIR and the witness’s
admission that certain facts were not recorded clearly indicate that the
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Criminal Appeal No(s). 1755 of 2011 & 150-151 of 2013 Page 9 of 25
alleged assault was a sudden incident, concluding within a short time.
Such circumstances negate any inference of a shared common object
to commit murder.
21. Moreover, appellant was not named in the FIR, which merely referred
to unidentified pillion riders accompanying another accused on a
motorcycle. The arrest and seizure proceedings are also doubtful, as
the panch witness turned hostile and the search of appellant’s house
was conducted even before his formal arrest, contrary to the
procedure established under the CrPC. These irregularities severely
undermine the credibility of the investigation and the prosecution’s
case.
22. Further, the identification parade was conducted after an inordinate
delay of 52 days and was procedurally flawed, as two accused persons
were shown together in the same parade. The Sessions Court rightly
found such identification unreliable. Reliance is placed on the
principles laid down in Shivaji Sahabrao Bobde v. State of
Maharashtra, (1973) 2 SCC 793 , where this Court held that an accused
must be proved guilty beyond all reasonable doubt and mere
suspicion cannot form the basis of conviction.
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Criminal Appeal No(s). 1755 of 2011 & 150-151 of 2013 Page 10 of 25
23. Learned counsel for the appellant also relied on Chellappa v. State,
(2020) 5 SCC 160 (paras 10 and 11) , wherein it was held that when
there exists doubt as to whether the accused shared the common
intention to commit murder, the benefit of such doubt must go to the
accused. Similarly, in M.C. Ali & Anr. v. State of Kerala, (2010) 4 SCC
573 , this Court emphasized that if two views are reasonably possible,
the appellate court should not interfere with the acquittal recorded by
the trial court.
24. Thus, it is submitted that the impugned judgment is liable to be set
aside and the judgment passed by the Sessions Court is to be
restored.
SUBMISSIONS ON BEHALF OF RESPONDENT
25. Learned counsel for the respondent submitted that the conviction of
the appellants was based on the consistent and credible ocular
evidence of injured witnesses, duly corroborated by medical
evidence and recoveries made at the instance of the accused persons.
The High Court also relied on Section 149 of the IPC, holding that the
prosecution had proved beyond reasonable doubt the presence,
knowledge and participation of the appellants in the crime committed
on 27.04.1999, resulting in the death of the deceased.
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Criminal Appeal No(s). 1755 of 2011 & 150-151 of 2013 Page 11 of 25
26. Section 149 of the IPC embodies the principle of vicarious liability,
holding every member of an unlawful assembly responsible for
offences committed in prosecution of its common object or for acts
they knew were likely to be committed. Reliance was placed on
Masalti v. State of U.P., AIR 1965 SC 202 and Lalji & Ors. v. State of
U.P., (1989) 1 SCC 437, which clarifies that once it is established that
an unlawful assembly existed and an offence was committed in
pursuant of its common object, every member is equally culpable,
irrespective of who inflicted the fatal act.
27. Applying this principle, learned counsel for the respondent
contended that the appellants, by riding the motorbikes carrying co-
accused persons armed with weapons to the crime scene, facilitated
the commission of murder and thus shared the requisite knowledge
and common object. The evidence on record, therefore, fully
established that the appellants were members of the unlawful
assembly at the relevant time and were rightly held guilty under
Sections 302 and 307 read with Section 149 of the IPC.
28. Thus, learned counsel for the respondent submitted that in light of the
evidence and settled legal principles, the present appeals are liable
to be dismissed as they are devoid of merit.
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Criminal Appeal No(s). 1755 of 2011 & 150-151 of 2013 Page 12 of 25
ANALYSIS AND FINDINGS
29. We have heard learned counsel for the parties and perused the
material available on record. At the outset, it is well settled that
interference with an order of acquittal must be exercised with great
caution. However, such interference is justified where the findings of
the Trial Court are manifestly perverse, unreasonable or contrary to
the evidence on record. In Chandrappa v. State of Karnataka, (2007) 4
SCC 415 (para 42) , this Court held that an appellate court possesses
full power to review, reappreciate and reconsider the evidence upon
which the order of acquittal is founded and to reach its own
conclusions if the view taken by the trial court is not reasonably
sustainable.
30. Applying these principles to the present case, it is evident that the
acquittal recorded by the Trial Court suffered from a fundamental
misappreciation of evidence. The Trial Court overlooked the
consistent and corroborated testimony of injured eyewitnesses and
failed to appreciate the legal effect of the active participation of the
appellants as members of an unlawful assembly. The High Court, in
reversing the acquittal, has given cogent and well-reasoned findings
based on a proper appraisal of the record.
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Criminal Appeal No(s). 1755 of 2011 & 150-151 of 2013 Page 13 of 25
Evidence on Record
31. The prosecution examined PW-1, PW-7 and PW-9 as eyewitnesses, of
whom PW-1 is the complainant, while PW-7 and PW-9 are injured
witnesses.
32. The relevant paragraph of the deposition of PW-1 reads as under:
“4. On 27.4.1999 … Bhausaheb Dinkar Kharuse came on his
motor-cycle and Pandharinath Deoba Gholap and Maruti
Ramchandra Gholap were sitting behind him on the motor-
cycle. The Rajendra Shira wale came on Bullet motor-cycle.
Behind him two unknown persons were sitting on the said
Bullet motor-cycle. I was knowing all these persons. The
persons are present today in the Court. I can identify them in
the Court. (The witness had gone near the dock of the
accused where they are sitting.) He pointed his finger
towards accd. No.1 and told that his name is Pandharinath
Deoba Gholap. (I verified the same. He has identified
correctly.) The witness pointed out the accused sitting at the
second place from the accused No.1, and told that his name
is Maruti Ramchandra Gholap. (I verified the same and found
that he had correctly identified accused No.2.) the witness
pointed the accused sitting at the third place and told his
name as Bhausaheb Dinkar Kharuse. (I verified and found
that he is accused No.3.) (The witness pointed out the finger
to the accused sitting at fourth place and told his name that
he is Rajendra Shirawale. (I verified and found that he is
accused No.4.) I can identify those unknown persons who
came on the Bullet motor-cycle of Rajendra Shirawale. (The
witness has pointed out the accused Nos.5 and 6.) Both the
motor-cycles were stopped on the left side of my jeep. All the
accused persons got down from the motor-cycles. The
accused persons removed weapons from the diccies of their
motor-cycles. The accused No.2 Maruti was possessing
Sattur, the accused No.1 Pandharinath and accused Nos.5
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Criminal Appeal No(s). 1755 of 2011 & 150-151 of 2013 Page 14 of 25
and 6 were possessing knives (Suri), accused Nos.3
Bhausaheb and accd. No.4 Rajendra were possessing the
knives. Accused No.3 Bhausaheb came near my jeep and he
took off the key of my jeep. He gave first blow on my mouth.
Thereafter, he immediately went behind the jeep. I saw
black. All the accused were standing behind my jeep. They
opened the rear side door of my jeep. They pulled Ankush
Bhausaheb Gholap, Rajendra Maruti Gholap, Shivaji
Sakharam Sanas and Gynaba Nagu Gholap on road from my
jeep. The accused No.3 Bhausaheb was holding Ankush.
Accused No.1 Pancharinath and No.2 Maruti assaulted
Ankush on his stomach by Sattur and knife. Accused Nos.1
and 2 also assaulted Ankush on his head, stomach, back,
hand. The intestine of the Ankush was came out of his
stomach. He fall on ground. The accused Nos.1 and 2 and his
campanions, the campanions were accused No.3 and 4 and
unknown persons i.e. accused Nos.5 and 6 went towards
Rajendra Maruti Gholap and Shivaji Sakharam Sanas. They
assaulted them with weapons. I was afraid and therefore, I
got down from the jeep. The two unknown person came
towards me. They are accused Nos. 5 and 6, before the Court.
They came to assault me. I ran towards market. Those
persons who assaulted us i.e. the accd. before the Court
stated their motor-cycles and went away I case near my
jeep.”
33. The relevant paragraph of the deposition of PW-7 reads as under:
“3. On 27.4.1999 … Haribhau alias Bhausaheb Dinkar
Kharuse came on his motor-cycle. Pandharinath Deoba
Gholap and Maruti Ramchandra Gholap were sitting behind
him on his motor-cycle. With the said motorcycle another
motor-cycle came. Raju Shirawale was driving that motor-
cycle. Behind him Subhash Raghunath Pawar and one person
wearing red colour shirt were sitting. I know all the persons
whose named I have stated above. I can identify them. They
are present in Court. (The witness went to the dock of the
accused and pointed out one accused, and told his name as
Pandharinath Deoba Gholap. The accused was asked to
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Criminal Appeal No(s). 1755 of 2011 & 150-151 of 2013 Page 15 of 25
stand. I asked his name and he told his name as
Pandharinath Deoba Gholap. The witness pointed one of the
accused and told his name as Maruti Ramchandra Gholap. I
asked the name of the accused and he told his name as
Maruti Ramchandra Gholap. He is accused No.2. The witness
pointed one of the accused sitting in the dock and told his
name as Haribhau alias Bhausaheb Dinkar Kharuse. The
accused told his name as Haribhau Dinkar Kharuse. He is
accused No.3. The witness pointed one of the accused sitting
in the dock and told his name as Raju alias Rajendra Bhivrao
Shirawale. I asked the name to the accd. and he told his
name as Raju Bhivrao Shirawale. He is accused No.4. Then
witness pointed his finger to one of the accused sitting in the
dock that he is the same per who worn the red colour shirt
on that day. I asked him his name. He told his name as Vitthal
Baburao Shinde. He is accused No.5. The witness pointed his
finger towards one of the accd. sitting in the dock and told
his name Subhash Raghunath Pawar. I asked his name. He
told him name Subhash Raghunath Pawar. I asked his name.
He told his name Subhash Raghunath Pawar. He is accused
No.6. The motor-cycles were stopped on the left side of the
jeep. All the accused down from the motor-cycles. The
accused persons removed the weapons from the diccies of
the motorcycles. The accused No.1 Maruti Gholap was
holding Sattur in his hand. The accused No.1 Pandharinath
Gholap was holding knife (suri). (The accused No.4 Raju
Shirwale, accd. No.5 Vitthal Shinde i.e. the person who worn
the red shirt, accd. No.6 Subhash Pawar/were holding knives.
(Accd. No.3 Bhausaheb went near Sopan. He removed the
keys jeep and gave fist below on the fact of Sopan Dagadu
Gholap. (By that time, accused No.1 Pandharinath, No.2-
Maruti, accd. No.4 Rajendra, accused No.5 Vitthal i.e. the
person wearing red shirt and accused No.6 Subhash came
behind the jeep. The accused No.3 Haribhau also came
behind the jeep. They opened the backside door of the jeep.
They dragged us out of the jeep. They dragged Ankush
Gholap, Shivaji Sanas, and myself, out of the jeep. After
dragging out of the jeep, accused No.3 Bhausaheb Kharuse
caught hold Ankush. Thereafter, accused No.1 Pandharinath
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Criminal Appeal No(s). 1755 of 2011 & 150-151 of 2013 Page 16 of 25
accused No.2 Maruti assaulted Ankush by Sattur and knife,
Ankush was assaulted at his chest, stomack backside of the
head and back. The intestine of the Ankush came out of the
stomach and he fall, on ground. Thereafter, the accused
started assaulting Shivaji Sanas. Shivaji Sanas rescued
himself from the hands of the accused and ran away. Accused
No.4 Raju caught hold of me. The accused No.6 Subhash
inflicted two blows on my chest. Accused No. 2 Maruti
inflicted blows on my back. I fall in front of the shop of
Mhasawade by haltering. The persons who had worn red
shirt, accused No. 5 inflicted blows on my right hand.”
34. The relevant paragraph of the deposition of PW-9 reads as under:
“3. On 27.4.1999 … Bhausabeb Kharuse came on
motorcycle, along with Pandharinath Deoba Gholap and
Maruti Ramchandra Gholap. With them, Raju Shirawale, came
on bullet motor-cycle with Subhash Pawar and one unknown
person wearing red shirt. The above persons came on the
motorcycles, are known to me. I can identify them, if shown to
me. They are present in the court-hall. (The witness went to
the dock where the accused persons are sitting. He touched
one accused sitting amongst others, and told his name as
Pandharinath Gholap. I verified the same. The accused told
his name as Pandharinath Gholap. He is accused told his
name as Pandharinath Gholp. He is accused No.1. The
witness pointed finger to one person of the accused sitting
amongst others and told his name as Maruti Gholap. The
accused told his name Maruti Gholap. He is accused No.2.
The witness pointed one of the accused sitting sitting
amongst the other and told his name as Bhausaheb Kharuse.
The accused told his name as Haribhau Dinkar Kharuse. He
is accused No.3. The witness pointed one of the accused
sitting amongst the others and told his name as Raju
Shirawale. The accused stood up and told his name as Raju
Shirawale. He is accused No.4. The witness pointed one of
the accused sitting in the dock and told his name as Subhash
Pawar. The accused stood and told his name as Subhash
Raghunath Pawar. He is accused No.6. The witness pointed
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Criminal Appeal No(s). 1755 of 2011 & 150-151 of 2013 Page 17 of 25
one of the accused sitting in the dock and told that he is
unknown person who was wearing red shirt at that time. The
accused stood and hold his name Vitthal Baburao Shinde. He
is accused No. 5. The accused persons stopped their motor-
cycles by the side of our jeep. They got down from the motor-
cycles. They removed the weapons from the diccies of their
motor-cycles. The accused No.2 Maruti Gholap was holding
Sattur in his hand. Accused No. 1 Pandharinath Gholap
accused No. 3 Haribhau Kharuse, accused No.4 Raju
Shirawale, accused No.5 who was wearing red shirt and
accused No. 6 Subhash were holding knives in their hands.
Accused No.3 Bhausaheb Kharuse then went to Sopan
Gholap. All other accused came behind our jeep. They
opened the back-door of the jeep and dragged us out of the
jeep. Accused No.3 Bhausaheb Kharuse ought hold Ankush.
The accused No.2 Maruti and accused No.1 Pandharinath
assaulted Ankush by Sattur and knife. Ankush was assaulted
on his stomach, chest, on both the hands, back his head, and
on legs. The intestine of the Ankush came out of the stomach,
and he fall down on earth. Thereafter, the accused No.1
Pandharinath, accused No.2 Maruti, accused No.6 Subhash
and accused No.5 unknown person wearing red shirt and
accused No.4 Raju Shirawale came to me. The accused No.2
Maruti Gholap inflicted blow on backside of my head,
accused No.6 Subhash Pawar inflicted blow on my hand,
accused No.1 Pandharinath Gholap inflicted blow on my
waist. I feel uneasy and I fell down on the earth. All the
accused then went towards the Rajendra Gholap and
assaulted him. In order to save myself I ran towards
vegetable market.”
35. On a careful perusal of the above depositions, it is revealed that the
testimonies of the eyewitnesses are natural, coherent and mutually
corroborative on all material particulars. They consistently deposed
that on 27.04.1999, the accused persons, including the present
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Criminal Appeal No(s). 1755 of 2011 & 150-151 of 2013 Page 18 of 25
appellants, arrived at the scene on two motorcycles armed with
deadly weapons such as knives and sattur . The appellants actively
facilitated the commission of the offence by accompanying the co-
accused persons, ensuring the confinement of the victims and
participating in the coordinated assault.
36. PW-1 and PW-7 categorically stated that appellant no. 1 and 2
(accused no. 3 and 4) were among those who surrounded the
deceased and the injured witnesses, thereby preventing their escape
and were fully aware that the co-accused persons were armed. The
evidence further establishes that appellant (accused no.6) inflicted
grievous injuries upon PW-7, demonstrating his direct participation in
the attack. PW-9 corroborated these accounts and unambiguously
identified all three appellants as members of the group acting in
concert and sharing a common objective.
37. The consistent narrative of these eyewitnesses leaves no room for
doubt that appellants no. 1 and 2 (accused no. 3 and 4), by
transporting the armed assailants to the spot and facilitating the
attack, and appellant (accused no. 6), by inflicting injuries during the
assault, were integral participants in the execution of the unlawful
design.
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Criminal Appeal No(s). 1755 of 2011 & 150-151 of 2013 Page 19 of 25
Medical Corroboration
38. The High Court also noted the medical evidence in the present case,
which reads as under:
“8. As noted earlier P.W.16- had conducted postmortem
examination of the dead body of Ankush on 27th April, 1999
at about 2.30 p.m., and sent the postmortem report at Exhibit
70. As per Dr. Praveen Haribhau Chaudhary the deceased
Ankush had sustained the following injuries:-…
9. … The Medical Officer further stated that the external as
well as internal injuries could be caused by hard and sharp
weapon like that of Sattur and knife, articles 7, 9 and 10
shown to him in the Court while he was in the witness box.
He also stated that all the injuries were ante-mortem and
fresh and they were sufficient to cause death in the ordinary
course of nature. In his opinion the deceased died due to
haemorrhagic shock due to multiple injuries to vital organs
like heart, liver, kidney, intestinal vessels and brain.
10. P.W.9- Shivaji Sakharam Sanas was also examined by him
on 27th April, 1999 when he was taken to the Rural Hospital,
Bhor without a police yadi. He had prepared emergency
case papers for the patient (accused No.69) and as per him
the injuries were grievous in nature. The following external
injuries were seen on the person of Shivaji Sakharam Sanas:-
…
He also stated that if the patient would not have got proper
treatment immediately, he would have landed in
haemorrhagic shock due to blood loss which would have
possibly caused his death. Hence the patient was
immediately referred to Sassoon Hospital at Pune for further
treatment because the injuries required expert
management. As per the evidence of P.W.19 Dr. P.K. Sancheti,
P.W.9 - Shivaji Sakharam Sanas came to be admitted in the
Sancheti Hospital at Pune on 27th April, 1999 at about 5.00
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Criminal Appeal No(s). 1755 of 2011 & 150-151 of 2013 Page 20 of 25
p.m., and apart from the injuries noted by P.W.16, Shivaji had
sustained the following injuries on his person:-…
P.W.19 stated before the Court that the injuries on the had
was of grievous nature and they could be caused by sharp
and hard object like that of Sattur and knife shown to him in
the Court. The injury on the hand could be possible by the
knife as was shown to him. He also stated that Shivaji was
issued a certificate on 6th May, 1999 and came to be
discharged on the same day. He had placed before the Court
the medical papers at Exhibit 76. He also admitted that he
had treated Shivaji on 27th April, 1999 between 5.30 p.m. to
6.00 p.m., and Shivaji had given the history of assault.
11. As per P.W.21- Dr. Yogesh Pralhad Chaudhary, P.W.7-
Rajendra Maruti Gholap was admitted at the KEM Hospital
on 27th April, 1999 at 3.00 p.m., and he was discharged on
18th May, 1999 and the medical history was recorded in the
case papers placed before the Court at Exhibit 79. He was
operated on 28th April, 1999 and consequently on 13th May,
1999. When he had examined P.W.7-Rajendra Maruti Gholap
on 27th April, 1999 the following injuries were noticed on his
person: …
12. As per Dr. Yogesh Pralhad Chaudhary all the injuries
could have been caused within 5 to 6 hours and by sharp
weapons like sattur and knife. Article 7, 10, 40, 41 and 42
were shown to him before the Court. The injuries on the back
had caused the perforation of anterior and posterior wall of
descending colon which had caused feacal leak and
peritonitis. The injuries on the chest and back were sufficient
to cause death in the ordinary course of nature individually
and collectively. P.W. 7- Rajendra Maruti Gholap was treated
by Dr. S.A. Patki and his team. The history of the patient was
recorded as it was told by the accompanying person i.e.
Baburao Kothawale the father-in-law and the patient was
brought from Goregaonkar Hospital at Bhor by him. The
Doctor had noticed fracture on the 5th rib of the chest and
was described as a serious injury. The said facture could
have been caused by Article 7 if it was used by force. If the
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Criminal Appeal No(s). 1755 of 2011 & 150-151 of 2013 Page 21 of 25
knifes were used by force from the sharp edge they would
cause incised wound and if the blow is given by the sharp
side, then the edges of the wound would be clean-cut. He
denied the suggestion that the injury on the chest and
corresponding internal injury were not sufficient to cause
death in the ordinary course of nature.”
39. The medical evidence provides strong corroboration to the
prosecution’s case and reinforces the credibility of the eyewitness
testimonies. PW-16, the doctor who conducted the post-mortem on the
deceased, noted multiple incised and penetrating wounds on vital
organs, such as the heart, liver and brain, injuries sufficient in the
ordinary course of nature to cause death due to haemorrhagic shock.
Similarly, PW-7 and PW-9 sustained grievous injuries, including rib
fractures and internal perforations, as confirmed by two doctors, PW-
19 and PW-21, both of whom testified that the injuries were caused by
sharp and hard weapons like knives and sattur .
40. These medical findings align perfectly with the ocular evidence and
highlight the brutal and coordinated nature of the attack. The timing,
nature and multiplicity of injuries clearly indicate a deliberate and
orchestrated assault executed in furtherance of a common unlawful
object. The harmony between the medical and ocular evidence leaves
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Criminal Appeal No(s). 1755 of 2011 & 150-151 of 2013 Page 22 of 25
no scope for doubt as to the active participation of the appellants in
the premeditated attack.
Common Object and Vicarious Liability
41. The principal defence advanced on behalf of the appellants is that
there was no common object to commit murder and, at best, the
intention was only to cause hurt. This contention is untenable in light of
the evidence on record. The prosecution has clearly established that
all the accused persons, including the appellants, arrived together,
armed with lethal weapons and jointly executed a deliberate and
coordinated assault on the deceased and other victims. The nature of
the weapons used, coupled with the ferocity and precision of the
attack, unmistakably demonstrates that the common object of the
assembly extended well beyond merely causing hurt and
encompassed the commission of murder.
42. Section 149 of the IPC unequivocally provides that every member of
an unlawful assembly is guilty of an offence committed in prosecution
of the common object or of one which such members knew to be
likely committed in furtherance thereof. In Masalti (supra) (para 17) ,
this Court clarified that it is not necessary for each member of the
unlawful assembly to have committed a specific overt act. Once
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Criminal Appeal No(s). 1755 of 2011 & 150-151 of 2013 Page 23 of 25
participation and sharing of the common object are proved, every
member becomes vicariously liable for offences committed in
prosecution of that object.
43. In the present case, the evidence conclusively establishes that all
three appellants were members of an unlawful assembly that carried
out a premeditated and violent attack resulting in the death of the
deceased and grievous injuries to PW-7 and PW-9. The role of
appellant (accused no. 6) in inflicting serious injuries upon PW-7
demonstrates his direct involvement and awareness of the collective
design. The appellant no. 1 and 2 (accused no. 3 and 4), who
transported the armed assailants to the scene, played an equally
crucial role by facilitating the attack and ensuring its execution in
furtherance of the common object.
44. The cumulative evidence clearly shows that the appellants were not
passive spectators but active participants and facilitators in a
deliberate and planned assault. Their conduct and presence at the
scene, in concert with the armed co-accused persons, establish their
common intention and vicarious liability under Sections 302 and 307
read with Section 149 of the IPC.
CONCLUSION
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Criminal Appeal No(s). 1755 of 2011 & 150-151 of 2013 Page 24 of 25
45. Upon a comprehensive appraisal of the entire record, this Court finds
that the prosecution has proved beyond reasonable doubt that all
three appellants were members of an unlawful assembly sharing the
common object to commit murder and grievous assault. The ocular
testimonies of PW-1, PW-7 and PW-9, being natural, cogent and
corroborated by medical evidence, clearly establish the active
participation of the appellants in a concerted and premeditated
attack. The appellants have failed to raise any reasonable doubt or to
demonstrate any perversity in the findings of the High Court.
46. The High Court was correct in holding that the Trial Court’s acquittal
was unsustainable, as it failed to properly appreciate the material
evidence and adopted an implausible view contrary to the record. The
impugned judgment of the High Court reflects a careful and reasoned
reappraisal of the evidence and cannot be said to suffer from any
illegality, perversity or infirmity.
47. In view of the consistent and corroborated ocular and medical
evidence, coupled with the established presence and active
participation of accused no. 3, 4 and 6 (the appellants herein) in
furtherance of the common object, this Court finds no error in the
conviction recorded by the High Court. The ingredients of Section 149
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Criminal Appeal No(s). 1755 of 2011 & 150-151 of 2013 Page 25 of 25
of the IPC stand fully satisfied, rendering each appellant vicariously
liable for the offences committed in prosecution of the unlawful
object.
48. Accordingly, this Court finds no merit in the present appeals. The
conviction and sentence imposed on accused no. 3, 4 and 6 (the
appellants herein) by the High Court vide the impugned judgment
dated 02.02.2011 are affirmed. The appeals are dismissed as devoid of
merit.
.........……….…………………….J.
[PRASHANT KUMAR MISHRA]
....….....………………………….J.
[VIPUL M. PANCHOLI]
NEW DELHI,
OCTOBER 29, 2025.
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