BHIMA @ BHIMARAO SIDA KAMBLE AND ORS.versusSTATE OF MAHARASHTRA

        BHIMA @ BHIMARAO SIDA KAMBLE AND ORS.                                   A
                                     v.
                     STATE OF MAHARASHTRA

                           AUGUST 27, 2002

  [S. RAJENDRA BABU AND P. VENKATAR.AMA REDDI, JJ.]                             B

     Penal Code, 1860; Sections 147, 149, 302, 323, 325 and 440:

      Unlawful assembly-Charges of murder and causing injury-Nature of
offence committed-large number of accused gathered armed with sticks and C
pelting stones, resulting in death of one and injury to another-Held, under
the circumstances, reasonable inference drawn could be that the common
object of the unlawful assembly was to commit offences under Sections 323
and 325 read with Section 1471149 and not under Section 302 read with
Section 149.                                                                D
        22 persons were charged for offence of formation of unlawful
assembly with the common object of committing murder of the victim/
deceased, causing injury to another victim and damaging property. Trial
Court convicted most of these accused under Section 302 read with Section
149 and Section 440 read with Section 149 IPC and accused Nos.14, 18            E
and 19 were also convicted under Section 323 read with Section 34 IPC.
High Court acquitted some of the accused but confirmed the conviction
against others. Hence this appeal filed by accused Nos. 1 to 3, 14 and 29,
in which Court granted leave confining it only to the question of the nature
of offence disclosed.
                                                                                F
        Partly allowing the appeal, the Court

      HELD: 1. When a large number of persons were armed only with
sticks or pelted stones which they could find anywhere either near the fields
or on their way and it was not established as to who specifically attacked
whom, it cannot be said that the intention was to cause death. It is more       G
probable that the intention was to give hard beating only. Even if it is
presumed that the deceased was pursued by the accused persons right upto
the place of incident, the object of the mob·was to teach him a stern lesson
as he was a bully in the village. In the circumstances and in the light of
evidence, reasonable inference to be drawn is that the common object was
                                    693                                         H
    694                    SUPREME COURT REPORTS [2002) SUPP. I S.C.R.

A   to commit offences under Section 323 and Section 325 read with Section
    1471149 IPC and not under Section 302 read with Section 149 IPC.
                                                                         [696-D-F)

          2. The trial Court as well as High Court appears to have lost sight
    of the crucial aspects. These accused are acquitted of the charges under
B   Section 302 read with Section 149 IPC, while they stand convicted, as
    rightly held by the trial Court, under Section 147, Section 323 and Section
    325 IPC. The sentences which they have already undergone should be
    treated as sufficient punishment and they may be released forthwith.
                                                                     (696-F, G)
c        CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 418
    of 1994.

         From the Judgment and Order dated 24/25-6-93 of the Bombay High
    Court in Crl. Appeal No. l 036 of 1980
D        A. T.M. Rangaramanujam, Mrs. Gouri Karuna Das, Mrs. Archana Singh
    and Ms. Rani Jethmalani for the Appellants.
          V.B. Joshi, Naresh Kumar and V.N. Raghupathy for the Respondent.
          The Judgment of the Court was delivered by

E         RAJENDRA BABU, J . 22 persons were. charged by the Court of
    Session, Solapur on the allegation that they formed an unlawful assembly
    with the common object of murdering vithal and causing injury to Bhimrao,
    the brother of Vithal, and to cause damage to the 'wada' at Dambaldar. After
    trial most of them stood convicted under Section 302 read with Section 149
F   and Section 440 read with Section 149 of the Indian Penal Code [IPC] and
    accused Nos. 14, 18 and 19 were also charged and convicted under Section
    323 read with Section 34 IPC for having caused simple hurt to Bhimrao. On
    appeal, the High C_ourt acquitted some more accused but confirmed the
    conviction and sentence in regard to others. Accused Nos. 1 to 3 and 14 to
    19 are in appeal before us. We are not concerned with other accused.
G           This Court granted leave by an order made on 18-7-1994 confining the
    same only to the question of the nature of offences disclosed. When the
    learned Senior Advocate Shri A. T.M. Rangaramanujam pitched his arguments
    a little too high to contend that the accused are entitled to plain acquittal, we
    made it clear to him that when the trial court and the High Court on the basis
H   of evidence have come to a conclusion one way or the other of their
     BHIMA@BHIMARAO SIDA KAMBLE v. STATE [S. RAIENDRA BABU, l.] 695

involvement in the incident in respect of which they were charged, we cannot    A
re-appreciate .the matter and come to a different conclusion. Thereafter, he
confined his arguments only to the question of offence arising out of proved
facts.

      After analysing the evidence of PWs 15 and 16 and other material on
record the learned Sessions Judge held that accused No. I went to the 'vasti'   B
of Vithal along with some of the accused accused and was following Vithal
upto his 'wada', that when Vithal and Bhimrao were inside he charged on the
servant to scare him away as he was pleading to protect the members of his
master's family. He held that he shared the common object to murder Vithal,
though the circumstances in the case may not suggest that he was sharing the    C
common object to murder Bhimrao but to cause him hurt.

       As regards accused No. 2, from the testimony of PW 16 and other
evidence on record, the learned Judge held that when the deceased-Vithal
arrived at the Bus Stand after release on bail, he was seen following Vithal;
that he went inside the 'wada' scaling the wall; that his conduct certainly     D
suggested that he was taking active part as a member of the unlawful assembly
to find out where the victims were hiding and how to reach them, as otherwise
there was no reason to scale the wall and go inside the 'wade'.

      As regards accused No. 3, the learned Judge on analysing evidence of
PWs 12 and 16 along with other material on record held that he was present      E
at the S. T. stand and he was following Vithal near the 'wada' and when
V ithal and Bhimrao were inside, he pelted stones at Suman. These
circumstances were sufficient to hold that he was the member of the unlawful
assembly and was sharing its common object except in respect of the injury
caused to Bhimrao.
                                                                                F
      As regards accused Nos. 14, 18 and 19, the learned Judge relied on
evidence of PWs 9 and I 0 for causing injuries to Bhimrao and from evidence
of PWs 14 and 16 held that accused Nos. 18 and 19 were at the S. T. bus
stand and accused No. 14 joined them in search ofVithal. They came following
Vithal, went inside the 'wada' beat Bhimrao after taking him outside from       G
where he was hiding. These acts prove their sharing of the common object
to murder Vithal and their common intention to assault Bhimrao. The learned
Sessions Judge also took the view that the target of attack was not Bhimrao
but Vithal inasmuch as Bhimrao happened to be accidentally .with Vithal and
accused Nos. 14, 18 and 19 beat him inside the 'wada'. This act of theirs was
not in furtherance of the common object of the assembly, but this was in        H
    696                    SUPREME COURT REPORTS [2002) SUPP. I S.C.R.

A   furtherance of the common intention to do so in order to put Bhimrao in fear
    from coming ahead to save his brother Vithal. Therefore, as regards accused
    Nos. 14, 18 and 19, the learned Judge concluded that there is 'common object' -
    in respect of Vithal and 'common intention' in respect of Bhimrao.

          In. this case, the learned Sessions Judge noticed that there was no specific
B evidence as to the nature of weapons with which they were armed. What was
    proved in the whole case was that accused Nos. 14, 18 and 19 personally
    dealt blows with sticks and the allegation that accused No. 3 wielded axe was
    not proved. There was no evidence to show that at the time of incident they
    were armed with axes. Axes produced by accused Nos. 1,2, 18 and 19 were
C   not shown to have been used in causing hurt. On that basis, the learned
    Sessions Judge held that accused Nos. 14, 18 and 19 cannot be found to be
    the members of unlawful assembly armed with deadly weapons.

           In appeal, the High Court also examined the evidence with reference
    to each one of the appellants and affirmed the findings recorded by the trial
D   court.
           When a large number of persons were armed only with sticks of pelted
    stones which they could find anywhere either near the fields or on their way
    and it was not established as to who specifically attacked whom, it is not
    clear as to whether the intention was to cause death. It is more probable that
E   the intention was to give hard beating only. Even if we accept the case that
    the deceased-Vithal was pursued right upto the 'wada' the object of the mob
    was to teach him a stem lesson who is said to be a bully in the village. In
    the circumstances and in the light of evidence, we must hold that the reasonable
    inference to be drawn is' that the common object was to commit offences
    under Section 323 and. Section 325 read w.it~1 Section 147/149 IPC and not
F   un~er section 302 read with Section 149 IPC. The trial court as well as High
    Court appear to have lost sight of crucial aspects~

           Therefore, we think that·these accused who are under appeal. before us
    .deserve to be acquitted .of tlie charges under Section 302 read with Section
     149 IPC, while they stand convicted anightly held by the trial co'!rt, under
G    Section 147, Section 323 and Section 325 IPC. The· sentences which they
     have already undergone should be treatec!. as sufficient punishment an~ they
     may be released forthwith if they are still in jail. Orders made by the trial
     court as confirmed by the High Court will stand modified accordingly.

          The appeal is allowed limited to the above extent.
H   S.K.S.                                                          Appeal allowed.