Full Judgment Text
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 6
CASE NO.:
Appeal (crl.) 415 of 2006
PETITIONER:
Sunil Balkrishna Bhoir
RESPONDENT:
The State of Maharashtra
DATE OF JUDGMENT: 15/05/2007
BENCH:
S.B. Sinha & Markandey Katju
JUDGMENT:
J U D G M E N T
WITH
CRIMINAL APPEAL NO. 417 OF 2006
AND
CRIMINAL APPEAL NO. 416 OF 2006
S.B. Sinha, J.
1. These appeals arising out of the judgment and order dated 1.2.2005
passed by a division Bench of the Bombay High Court were taken up for
hearing together and are being disposed of by this common judgment.
Altogether 7 persons were charged for commission of murder of one
Ramdas on 3.2.1987 at 9 p.m. at his house. The accused were charged
under Sections 147, 148, 302/149, 452 of the Indian Penal Code. Accused
No. 3 was also charged for causing simple hurt to P.W. 1 Kishor. The
learned Trial Judge convicted the accused persons. The High Court has
affirmed the said judgment. It is stated that during the course of the trial
and/or pendency of the appeal, accused Nos. 1 to 3 have expired. Accused
No. 6 has not preferred any special leave petition before us.
2. The motive for commission of the offence is said to be that the
deceased and accused no. 1 had quarreled with each other about a fortnight
prior to the date of incident.
3. Prosecution case is said to be as under :
On 3.2.1987, the deceased Ramdas and his friend Kishor, P.W. 1, the
first informant were standing in front of the deceased’s house. All the
accused persons allegedly came there at about 7.30 in the evening. Accused
No. 1 asked for a gold pendent from the deceased Ramdas which was the
subject matter of the dispute between the parties and in relation whereto
quarrel had taken place as the earlier occasion. The deceased, in response
thereto is said to have stated, that he had returned the said gold pendent to
some persons hailing from Panchpakhadi area. At that the accused No. 2
allegedly caught hold of the shirt of the deceased, a scuffle ensued between
the accused No. 2 and the deceased. P.W. 1 with the wife of the accused
No. 1 intervened and separated them. Allegedly, the deceased touched the
person of the wife of accused no. 1, for which complaints were made by
both the parties before the Outpost of the Police at Kopri. However, no
report was accepted and the police officers said to have pacified allegedly
pacified both the parties and sent them back. On 3.2.1987 at about 7.30
p.m., P.W. 1 came to the house of the deceased. They went to a pan stall
and took a round in the Bazar. At about 9.00 p.m. both of them came back
to the house of the deceased. Ramdas expressed his desire to have his dinner
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 6
and requested P.W. 1 at his place to wait whereafter he promised to go to the
complainant’s house. While P.W. 1 was sitting on the cot in the front room
of the deceased’s house and the deceased Ramdas had been taking his
dinner, he saw 6 to 7 persons coming to the front of the house. When he
went out to see as to who they were, found the accused persons standing
there. Allegedly, accused No. 2 was having a knife in his hands, and the
accused Nos. 3 to 6 were having swords in their hands. P.W. 1 was asked to
call the deceased to which he replied that he was taking his dinner, and they
could talk to him after he finished taking meal. He was then allegedly
assaulted by accused no. 3 by a sword by its blunt side on the shoulder,
whereafter the accused entered into the house of the deceased. Baburao,
father of the deceased who examined himself as P.W. 5 tried to resist them
and in the process, caught hold of the sword which was in the hands of the
accused no. 6 resulting in sustaining of bleeding injuries. The accused
allegedly entered into the room. The deceased was assaulted with kicks and
fist blows. Accused No. 2, Anil Mhatre stabbed the deceased Ramdas with
a knife. While the accused persons were going out of the house, Bhaskar,
brother of the deceased came whereupon accused No. 2 asked him not to
enter into the house. While P.W. 1 was going to report the matter to the
police Outpost Kopri, he met the other brother of the deceased, Sudhakar.
Sudhakar was asked by P.W. 1 to bring the deceased to the police outpost,
and he went to the police outpost. The deceased was brought to the said
outpost by Sudhakar, whereafter he was referred to the Civil Hospital. A
doctor upon examining him declared him dead. Complainant Kishor and
witness Baburao were also examined by the doctor. They were rendered
medical assistance.
4. The short question which arises for consideration in these appeals is
the nature of involvement of the appellants before us. It is contended that
the appellants were unarmed, and they were not known to the deceased or
his family by even P.W. 1 Kishor. They had no motive to commit the crime.
5. The post mortem report shows that the following injuries were found
on the body of Ramdas:
"1. Stab wound on epigastric region right to midline 1" x
1/2" x deep to peritoneal cavity direct cavity direct into
backward and upward.
2. Incised wound over left index finger at metocarpus
fallengial joint 1/2" x 1/4" x 1/8"
3. Incised wound on left thumb metocarpus fallengial
joint 1/2" x 1/4" x 1/8""
6. Only injury no. 1 was found by the doctor to be sufficient in the
natural course to cause death.
7. The injuries on the person of Kishor was only a clean wound on left
infra clavicular region middle third of the clavic 1/4 cm x 1/4 cm x 1/4 cm.
whereas Baburao suffered the following injuries:-
"Clean incised wound on the right hand at the distal
former kreez 1/2 cm. 1/2 cm x 1/4 cm. and on first
web space 1/2 cm. x 1/2 cm x 1/2 cm. Injury on first
web space is also a clean incised wound and it is
injury no. 2.
Clean incised wound on left thumb terminal fale x 1/2
cm. x 1/2 cm. x 1/2 cm."
8. Indisputably, a vital injury was caused to the deceased by the accused
No. 2, while other injuries found on his person were caused only by blows.
The accused No. 3 is said to have caused injury to P.W. 1, but no specific
overt act was attributed to any of the appellants before us. No witness stated
before the trial court in regard to the specific roles played by each of the
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 6
appellants.
9. The learned counsel for the appellants questioned the identification of
the appellants by the prosecution witnesses before us. Admittedly, test
identification parades were held for identification of the accused persons.
The first test identification parade was held only in respect of accused Nos. 1
to 4, whereas the second test identification parade was held in respect of
accused Nos. 5 to 7. It is, therefore, evident that even the identity of the
appellants before us was in doubt.
10. Even the full name of the appellant Sunil was not disclosed in the
First Information Report. He in the test identification parade was not
identified by witnesses Ratna Kajale, Sudhakar Kajale, Bhaskar Kajale and
even the first informant Kishor and was identified only by the father of the
deceased Baburao Kajale. Even Baburao did not attribute any specific overt
act so far as the said Sunil is concerned. He did not say that Sunil was
having any weapon.
11. P.W. Nos. 2 to 4 did not identify the accused No. 4 and accused No. 7
being the appellants in Criminal Appeal Nos. 415 of 2006 and 416 of 2006
respectively.
12. Indisputably, all the witnesses are interested witnesses. P.W. 1 was
the complainant. P.W. 2 Ratna was allegedly at the relevant time have been
named to the deceased. P.W.4 is Bhaskar, brother of the deceased. P.W. 5,
Baburao was the father of the deceased. P.W. 3 Sunil was also one of the
brothers of the deceased.
13. The learned Trial Judge did not place any reliance whatsoever on the
evidence of P.W. 5 Baburao and P.W. 3 Sunil. We have noticed
hereinbefore that only one stab injury was inflicted on the deceased by
accused No. 2. It was not repeated.
14. Mr. V.A. Mohta, learned senior counsel appearing on behalf of the
appellant would submit that in the aforementioned fact situation, no case has
been made out to arrive at a finding that the appellants herein had a common
object to cause the death of the deceased Ramdas.
15. The learned Trial Judge as also the High Court proceeded on the basis
that for establishing common object, no prior meeting of mind was
necessary. According to the courts below, it may develop on the spot. The
dispute between the parties which was said to be the motive for committing
the offences was an ornament. First of the quarrels between the accused
No. 1 and the deceased took place a fortnight prior to the date of occurrence.
Appellants herein were not involved. Accused No. 1 on the one hand and
the deceased on the other quarreled on the second occasion. A scuffle took
place. The wife of the accused No. 1 and P.W. 1 tried to intervene. The
deceased allegedly at that time touched the person of the wife of accused
No. 1. They went to lodge their respective complaints but then the matter
was settled. Accused No. 1 therefore may have a grudge as against the
deceased, who had touched his wife. It is unlikely that the appellants before
us, who were wholly unarmed and who were even not known to the
deceased would form a common object to cause his death. Had it been so,
they would have gone armed with weapons. Specific overt acts had not been
attributed against them. Allegations made in the first information report
show that whereas the accused Nos. 3 and 6 were armed with sword,
accused No. 2 had a knife. The knife was used by accused No. 2 all of a
sudden. Evidently nobody wanted to cause any serious injury to others. The
medical evidence does not specifically mention as to how the wounds were
caused. The size of the wound shows that nobody had used any weapon
with much force. The wounds might have also been caused during scuffle.
16. In the aforementioned situation, it is difficult to apply the test of
common object. Mr. Sushil Karanjkar, learned counsel appearing on behalf
of the respondent, however, would inter alia rely upon a decision of this
court in Bishna alias Bhiswadeb Mahato and Others v. State of W.B. [(2005)
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 6
12 SCC 657].
In that case itself, it was held
"62. For the purpose of attracting Section 149 IPC, it is not
necessary that there should be a pre-concert by way of a
meeting of the persons of the unlawful assembly as to the
common object. If a common object is adopted by all the
persons and shared by them, it would serve the purpose."
17. Section 149 per se constitutes a substantive offence. The object of
this section is to make clear that an accused person whose case falls within
its terms cannot put forward the defence that he did not, with his own hand,
commit the offence committed in prosecution of the common object of the
unlawful assembly or such as the members of the assembly knew to be likely
to be committed in prosecution of that object. Unlawful assembly was
formed originally to assault and something might have happened all of a
sudden.
18. Common object is defined under Section 141 of the Indian Penal
Code in the following terms:-
"141. Unlawful assembly. \026 An assembly of five or
more persons is designated an ’unlawful assembly’, if the
common object of he persons composing that assembly
is-
First \026 To overawe by criminal force, or show of criminal
force, the Central or any State Government or Parliament
or the Legislature of any State, or any public servant in
the exercise of the lawful power of such public servant;
or
Second - To resist the execution of any law, or of any
legal process; or
Third \026 To commit any mischief or criminal trespass, or
other offence; or
Fourth \026 By means of criminal force, or show of criminal
force, to any person, to take or obtain possession of any
property, or to deprive any person of the enjoyment of a
right of way, or of the use of water or other incorporeal
right of which he is in possession or enjoyment, or to
enforce any right or supposed right; or
Fifth. \026 By means of criminal force, or show of criminal
force, to compel any person to do what he is not legally
bound to do, or to omit to do what he is legally entitled to
do."
19. Section 142 provides that whoever being aware of facts which render
any assembly an unlawful assembly, intentionally joins that assembly, or
continues in it, is said to be a member of an unlawful assembly.
20. The question which is required to be seen in each case is, what was
the initial common object, if at all.
21. In Ram Dular Rai and Others v. State of Bihar [AIR 2004 SC 1043],
this Court held:
"7...Section 149 does not require that all the five
persons must be identified. What is required to be
established is the presence of five persons with a
common intention of doing an act. If that is
established merely because the other persons
present are not identified that does not in any way
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 6
affect applicability of Section 149, IPC."
22. In Munna Chanda v State of Assam [(2006) 3 SCC 752], this Court in
the fact situation obtaining therein held:-
"12. It is, thus, essential to prove that the person
sought to be charged with an offence with the aid of
Section 149 was a member of the unlawful assembly at
the time the offence was committed.
13. The appellants herein were not armed with
weapons. They except Bhuttu were not parties to all the
three stages of the dispute. At the third stage of the
quarrel, they wanted to teach the deceased and others a
lesson. For picking up quarrel, they wanted to teach the
deceased and others a lesson. For picking up quarrel
with Bhuttu, they might have become agitated and asked
for apologies from Moti. Admittedly, it was so done at
the instance of Nirmal, Moti was assaulted by Bhuttu at
the instance of Ratan. However, it cannot be said that
they had common object of intentional killing of the
deceased. Moti, however, while being assaulted could
free himself from the grip of the appellants and fled from
the scene. The deceased was being chased not only by
the appellants herein but by many others. He was found
dead the next morning. There is, however, nothing to
show as to what role the appellants either conjointly or
separately played. It is also not known as to whether if
one or all of the appellants were present, when the last
blow was given. Who are those who had assaulted the
deceased is also not known. At whose hands he received
injuries is again a mystery. Neither Section 34 nor
Section 149 of the Penal Code is, therefore, attracted (See
Dharam Pal v State of Haryana and Shambhu Kuer v
State of Bihar)."
23. Yet again in Mummidi Hemadri and Ors. v State of Andhra Pradesh
[2007 (4) SCALE 431], a division bench of this Court opined as under:-
"14. Section 149 IPC, consists of two parts. The first
part of the section means that the offence to be
committed in prosecution of the common object must
be one which is committed with a view to accomplish
the common object. In order that the offence may fall
within the first part, the offence must be connected
immediately with the common object of the unlawful
assembly of which the accused was a member. Even if
the offence committed is not in direct prosecution of the
common object of the assembly, it may yet fall under
Section 141 IPC, if it can be held that the offence was
such as the members knew was likely to be committed
and this is what is required in the second part of the
section. The purpose for which the members of the
assembly set out or desired to achieve is the object. If
the object desired by all the members is the same, the
knowledge that is the object which is being pursued is
shared by all the members and they are in general
agreement as to how it is to be achieved and that is now
the common object of the assembly. An object is
entertained in the human mind, and it being merely a
mental attitude, no direct evidence can be available and,
like intention, has generally to be gathered from the act
which the person commits and the result therefrom....."
[See also Radha Mohan Singh alias Lal Saheb and Others v. State of
U.P., (2006) 1 SCC (Cri) 661 and Rabindra Mahto and Another v. State of
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 6 of 6
Jharkhand (2006) 10 SCC 432]
24. Applying the tests laid down by this Court in the aforementioned
decisions, we are of the opinion that no case had been made out as against
the appellants to arrive at a conclusion that they are guilty of commission of
an offence under Section 302/149. We would assume that they were guilty
under Section 452 of the Indian Penal Code but they have remained in
custody for sufficiently long time. We, therefore, are of the opinion that
having regard to the facts and circumstances of this case, these appeals
should be accepted. Appellants herein are in custody. They are directed to
be set at liberty in connection with certain other offences. The appeals are
allowed and the impugned judgment is set aside.