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NON-REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 1305 OF 2011

VIJAY PANDURANG THAKRE & ORS. .....APPELLANT(S)

VERSUS

STATE OF MAHARASHTRA .....RESPONDENT(S)

W I T H

CRIMINAL APPEAL NO. 1300 OF 2011

CRIMINAL APPEAL NOS. 1302-1304 OF 2011

CRIMINAL APPEAL NO. 1306 OF 2011

CRIMINAL APPEAL NO. 1307 OF 2011

AND

CRIMINAL APPEAL NO. 1308 OF 2011

J U D G M E N T

A.K. SIKRI, J.

In all these appeals, there are 21 number of appellants who are all

convicted for  the  offences  punishable  under  Sections 302,  307,  324,

336, 427, 506-II, 148 read with Section 149 of the Indian Penal Code,

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1860 (for short the 'IPC') by the Additional Sessions Judge, Nagpur vide

his judgment dated 05.02.2010, which is substantially upheld by the High

Court vide impugned judgment dated 24.01.2011.  Judgment of the High

Court in the criminal appeals, that were filed by the appellants,  allowed

the appeals  in part thereby altering the charge under Section 307 IPC to

Section 324 of the IPC.  However, rest of the conviction recorded by the

trial court has been maintained.   

2. The appellants are the residents of Village Badegaon, Taluka Saoner,

Nagpur.  Victims of the said crime are also residents of the same village.

Persons belonging to the victim's group (known as Deshmukh Group) as

well as those who are accused persons (known as Choudhary Group)

are  the  two  rival  political  groups  active  in  the  village  politics.   On

24.10.2002, elections for Village Panchayat, Badegaon took place.  The

appellants were supporting Samata Party and four of their candidates

got elected in the said elections.  On the other hand, Deshmukh Group

was representing Shetkari Shet Majoor Party and five of their candidates

were elected in the said elections.  Shetkari Shet Majoor Party was led

by  Vijay  Deshmukh  and  Samata  Party  was  led  by  Bhujangrao

Choudhary.  Two days after the elections i.e. on 26.10.2002, the incident

in question took place.  

3. As  per  the  prosecution,  members  of  the  group  of  accused  persons

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hatched a conspiracy to eliminate leading members of Deshmukh family

for  taking revenge of  their  defeat  in Gram Panchayat election and in

furtherance  of  their  common object,  committed  the  murder  of  Ashok

Deshmukh, and attempted to commit murder of Vilas Deshmukh, Vivek

Deshmukh (PW-9 and PW-8 respectively), assaulted Dinesh Deshmukh,

Arun Deshmukh, Prafulla Deshmukh, Sau. Kalpana Deshmukh and Smt.

Kausabai  Choudhary  (PW-6,  PW-7,  PW-13,  PW-10  and   PW-11

respectively),  pelted  stones  on  the  houses  of  Deorao  Nakhale  and

Bhimrao Nakhale (PW-12 and PW-16 respectively)  and damaged the

scooter  of  PW-4  Sushil  Deshmukh.   The  incident  was  witnessed  by

seven injured witnesses and four eyewitnesses.   

4. The  prosecution  examined,  altogether,  26  witnesses.   Out  of  these,

PW-6, PW-7, PW-8, PW-9, PW-10, PW-11 and PW-13 were the injured

eyewitnesses and PW-2, PW-4, PW-5 and PW-18 were eyewitnesses

who did not suffer any injury in the incident.  Other witnesses are the

doctors (who examined the injured persons and conducted postmortem

of  the  deceased  Ashok  Deshmukh),  Investigating  Officer,  Executive

Magistrate,  Panch and other witnesses.  On the other hand, defence

examined 16 witnesses in all.   

5. It  may be pointed out that  there was no dispute that  death of Ashok

Deshmukh was homicidal in nature and the testimony of the doctors on

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this account is not under challenge.  However, in respect of those who

suffered injuries, dispute was as to whether injuries were such that there

was an attempt to murder these persons.  The trial court convicted the

accused persons under Section 307 IPC accepting the version of the

prosecution.  However, the High Court in the impugned judgment has

converted  the  conviction  from Section  307  IPC  to  Section  324  IPC.

Since,  neither  the  State  nor  the  victim  has  challenged this  part,  the

acquittal of appellants under Section 307 IPC has attained finality.   

6. We may  also  mention  at  this  stage  itself  that  there  was  no  serious

challenge by the learned counsel, who appeared for the appellants, at

the time of arguments to the conviction of the appellants under Section

324 IPC.  Even otherwise we find that the conviction under Section 324

IPC warrants to be sustained.  In view thereof, the only question is as to

whether appellants could be convicted of offence under Section 302 IPC

along  with  Section  148  read  with  Section  149  IPC.   Discussion

hereinafter would be focussed on this aspect.   

7. It  may be mentioned that  in  all  30 persons were charged under  the

various  Sections  mentioned  above.   As  pointed  out  above,  after

analysing the evidence of the prosecution as well as that of the defence

and other material produced on record, the learned Additional Sessions

Judge convicted accused Nos. 1, 2, 4, 6, 9, 10, 12, 13, 16 to 25 and 28

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to 30 for  various offences giving different  sentence ranging from one

month to six months under Sections 324, 336, 427, 506-II and 148 IPC.

Insofar as conviction under Section 307 read with Section 149 IPC is

concerned, rigorous imprisonment for five years was awarded and for

offence punishable under Section 302 read with Section 149 IPC, life

imprisonment was inflicted upon the aforesaid convicted persons. The

remaining accused persons were acquitted.  Findings of the trial court

are  summarised by the High Court  in  the impugned judgment  in  the

following manner:

(a) Accused  No.  4  Pandhari  N.  Khandal,  Accused  No.  10  Vijay  P.

Thakre,  Accused  No.13  Kailas  Bhoyar,  Accused  No.  14  Ashok  S.

Pimparamule, Accused No. 18 Narayan Kothe, Accused No. 19 Baban

Karale,  Accused  No.  20  Marotrao  Gawande,  Accused     No.  23

Chandrashekhar Khorgade and Accused No. 30 Dilip S. Chachane were

identified to be present and participating in various acts of assault.

(b) The accused possessed, and have used deadly weapons, such as

big size sticks and medium size sticks (Ubharis and Zodpas etc.)

(c) The accused constituted unlawful assembly.

(d) The witnesses depose that the members of the unlawful assembly

of accused persons proclaiming that they wanted to eliminate the main

persons from Deshmukh family, because of the acrimony which they had

due to defeat in the Panchayat election.  

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(e) Aspects, namely motive and intention, both were proved.   

(f) The  testimonies  of  the  witnesses  were  adequate  to  prove  the

commission of offence charged and stood to the test of trustworthiness.

The  omissions  relied  upon  by  the  defence  were  neither  crucial  or

material, nor were omissions at all.

8. State as well  as the complainant had filed the appeals against those

who were acquitted, which were dismissed by the High Court.  The High

Court noted that defence of the appellants was that it  was a case of

stampede,  though  no  attempt  was  made  to  explain  as  to  how  the

stampede could have occurred.  The fact of homicidal death and other

injuries  were  not  disputed.   The  enmity  between  the  parties  and

commotion were also not in dispute.  Therefore, one has to proceed on

the basis that incident in question took place wherein certain persons

belonging  to  Choudhary  Group  attacked  the  persons  of  Deshmukh

family.   The  most  vital  question  that  becomes  important  in  these

circumstances is as to whether unlawful assembly had been formed by

the convicted persons with common object of causing death of Ashok

who lost his life in the said attack.  The High Court has taken note of the

injuries  as  revealed  in  the  postmortem  report  which  the  deceased

suffered and noted that the cause of death is one head injury.   The High

Court  further  summarised his  conclusion in  para  50 of  the judgment

which reads as under:

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“50.   The  fact  that  the  evidence  brought  by  the prosecution,  tested  from  any  point  of  view  and permutations and combinations leads to the conclusion that:-

(1)  It was an unlawful assembly. (2)  It  gathered after pre-conceived common object of eliminating the members of Deshmukh family and group.

(3)  The assembly was equipped with deadly weapons, such as Ubharis, Zodpas etc.

(4)  Unlawful assembly dealt a fatal assault on Ashok.

(5)  Unlawful assembly dealt a violent and brutal assault on other injured witnesses, namely PWs 6, 7, 8, 9, 10, 11  and  13  (Dinesh  Deshmukh,  Arun  Bhaurao Deshmukh,  Vivek  Nanaji  Deshmukh,  Vilas  Bhauraoji Deshmukh,  Kalpana  Vijayrao  Deshmukh,  Kausalyabai A.  Chaudhari  and  Praful  Uttamrao  Deshmukh respectively),  and did  stone pelting and damaged the houses of PW 12 Deorao Nakhale and PW 16 Bhimrao Nakhale,  and  damaged  the  scooter  of  PW  4  Sushil Deshmukh.”

9. Questioning the propriety of the aforesaid approach adopted by the High

Court,  Mr. Tulsi,  learned senior  counsel appearing in Criminal  Appeal

No.1300 of 2011 which is filed by four appellants, submitted that large

number of persons were implicated as accused persons and the manner

in  which  the  incident  took  place,  it  was  difficult  for  the  prosecution

witnesses  to  identify  as  many  as  30  persons  and  the  possibility  of

implicating even those who were not present at the time of the incident,

cannot be ruled out, particularly when there was political rivalry between

the two groups.  He further submitted that motive for false implication

gets supported by the fact that in the elections which took place two

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days  before  the  incident,  five  persons  from  Deshmukh  Group  were

elected whereas from Choudhary Group, lesser number of persons i.e.

four persons were elected.  It was submitted that Deshmukh Group was

more  dominating  group  and  in  these  circumstances,  there  was  no

question of  taking any revenge.  He also submitted that  there was a

delay  in  lodging  the  FIR  which  could  further  lend  credence  to  the

defence of the appellants that many were falsely roped in.  Furthermore,

there was no evidence of any conspiracy or common object and, thus,

the ingredients of provision of Section 149 IPC could not be taken and

the  appellants  were  wrongly  convicted  under  the  said  provision.   In

nutshell, his submission was fourfold on the following aspects:   

(1) The entire evidence in the case leaves a room for doubt with regard to

the identification of accused persons.  This is so, because of a large

number of accused persons (30) and even 10-15 more alleged to be

present at the time of the incident.  Added to this is the fact that their

identification is  alleged to have taken place in  the moonlight,  no TIP

thereafter, and identification only in court.   

(2) Delay in lodging FIR, utilized for deliberations about how to implicate all

political opponents.

(3) There is a clear motive for false implication on account of rivalry arising

out  of  Panchayat  elections in  which the accused party  had won four

seats  and  complainant  party  won  five  out  of  nine  seats.   The

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complainant, thus, in the absence of any evidence of conspiracy had all

the opportunity for false implication.

(4) In the absence of any evidence of conspiracy, the accused at worst can

be held responsible for their  individual acts and others against whom

there are no specific allegations cannot be held liable as they may be

mere spectators, the incident having been taken place on a public road.   

10. In  support  of  the  aforesaid  submissions,  learned  counsel  referred  to

various  case  laws  as  well.   Other  counsel  appearing  for  remaining

appellants adopted the submissions of Mr. Tulsi.   

11. Learned  counsel  for  the  State,  on  the  other  hand,  relied  upon  the

discussion contained in the judgments of the courts below in support of

the prosecution case with the submission that the appellants were rightly

convicted and there was no reason to interfere with the same.

12. After going through the evidence in detail, we are of the opinion that the

prosecution evidence is not sufficient to conclude that any conspiracy

was hatched by the appellants with common object to cause the death of

Ashok or the appellants are charged members of the other group with

such an objective.  Even as per the prosecution, the convicted persons

were not carrying any deadly weapons.  They were armed with Ubharis

which are small sticks and Ubharis used by the farmers for disciplining

the bullocks.  This itself  would be sufficient  to negate the prosecution

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version that there was a conspiracy and common object to cause fatal

harm to the members of the opposite group.  At the most, the appellants

wanted to inflict some physical harm to the members of the Deshmukh

family in order to 'teach them a lesson'. Significantly, while discussing

the charge under Section 307 IPC, the High Court itself has gone by the

nature of injuries inflicted on other persons and concluded that there was

no intention to cause death of any of those who got injured at the time of

the incident. However, while dealing with the case of death of Ashok, the

High  Court  went  by  the  injuries  on  his  person  and  on  that  basis

concluded  that  there  was  a  premeditative  motive  on  the  part  of  the

appellants to murder him.  Except the above, there is no clear evidence

of any conspiracy or common objective.  In these circumstances, the

accused persons, at worst, could be held responsible for their individual

acts.   

13. Section 149 IPC reads as under:

“149.  Every  member  of  unlawful  assembly  guilty  of offence committed in prosecution of common object.—If an offence is committed by any member of an unlawful assembly in prosecution of the common object of that assembly, or  such as  the  members  of  that  assembly knew to be likely to be committed in prosecution of that object, every person who, at the time of the committing of that offence, is a member of the same assembly, is guilty of that offence.”

14. As is clear from the plain language, in order to attract the provision of

the Section, following ingredients are to be essentially established.  

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(i) There must be an unlawful assembly.

(ii) Commission of an offence by any member of an unlawful assembly.

(iii) Such offence must have been committed in prosecution of the common

object  of  the  assembly;  or  must  be  such  as  the  members  of  the

assembly knew to be likely to be committed.   

If  these  three  elements  are  satisfied,  then  only  a  conviction  under

Section 149, I.P.C., may be substantiated, and not otherwise.  None of

the  Sections  147,  148  and  149  applies  to  a  person  who  is  merely

present in any unlawful assembly, unless he actively participates in the

rioting or does some overt act with the necessary criminal intention or

shares the common object of the unlawful assembly.   

15. In  the facts  of  the present  case,  we find that  common object  of  the

assembly, even if it is presumed that there was an unlawful assembly,

has not been proved.  The expression 'in prosecution of the common

object'  occurring in  this  Section postulates that  the act  must  be  one

which have been done with a view to accomplish the common object

attributed to the members of the unlawful assembly.  This expression is

to be strictly construed as equivalent to in order to attain common object.

It  must  be  immediately  connected  with  common  object  by  virtue  of

nature of object.  In the instant case, even the evidence is not laid on

this aspect.  As pointed out above, the courts below were influenced by

the fact that one of the injuries on the person of Ashok was on his head

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which  became  the  cause  of  death  and  from this,  common object  is

inferred.   

16. In  Mukteshwar  Rai  v.  State  of  Bihar1,  the  accused  persons  were

alleged to have formed an unlawful assembly, gathered in a village and

set some houses on fire and ransacked.  Two persons died as they got

burnt and two could not be traced.  This Court agreed with the finding of

the High Court as to formation of the unlawful assembly.  But as to the

finding that the common object of the unlawful assembly was to commit

murder took somewhat a different view and observed:

“The specific overt acts attributed to A-1 and five others who are said to have actively participated in setting the fire and thrown some of the victims into the fire stand disbelieved.  It may also be noted that none of the P.Ws. Is  injured and we find from the judgment  of  the High Court  that none of  the witnesses say that any one of these appellants were armed.  The learned Judge has extracted the incriminating part in each of the witnesses against these appellants.  It stated that these accused were identified by those respective witnesses mentioned therein  in  discussing  the  case  against  each  of  th accused.  There is nowhere any mention that any one of these appellants were armed.  In such a situation the question  is  whether  these  appellants  also  had  a common  object  of  committing  the  murder.   We have given  earnest  consideration  to  this  aspect.  Taking  a general picture of the case and after a close scrutiny of the evidence we find that two persons were charred to death.  This must have been the result of setting fire to those  houses.   With  regards  the  other  two  missing persons it cannot be concluded that they were murdered in the absence of  any iota of  evidence.  Under these circumstances we find it extremely difficult to hold that a common object of the unlawful assembly was to commit

1 1992 Supp (1) SCC 727

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murder.”

17. We would also like to quote the following passage from Thakore Dolji

Vanvirji & Ors. v. State of Gujarat2:

“3. …Now the question is whether all the accused would constructively  be  liable  for  an  offence  of  murder  by virtue of Section 149 IPC. So far A-1 is concerned, it is the consistent  version of  all  the eyewitnesses that he dealt  a  fatal  blow on the head with a  sword and the medical  evidence  shows that  there  was  a  fracture  of skull  and  the  blow  must  have  been  very  forceful because even the brain was injured. Therefore, he was directly responsible for the death of the deceased and the High Court has rightly convicted him under Section 302 IPC. Now coming to the rest of the accused, all the eyewitnesses have made an omnibus allegation against them. Even A-2,  according to the eyewitnesses,  gave only  one  blow  and  that  the  remaining  accused  gave stick blows. All these injuries were not serious and were simple.  The injury attributed to A-2 was on the cheek and the doctor did not say that it caused any damage. So it must also be held to be a simple injury. Then we find only a bruise and an abrasion on the right arm and some bruises on the back. These injuries did not result in any internal injuries. There was not even a fracture of rib. Therefore they must also be simple injuries. It is only injury  No.  1  which  was  serious  and  proved  fatal. Therefore  the  question  is  whether  under  these circumstances common object of the unlawful assembly was to cause the death of the deceased and whether every  member  of  the  unlawful  assembly  shared  the same? No doubt Section 149 IPC is wide in its sweep but in fixing the membership of the unlawful assembly and  in  inferring  the  common  object,  various circumstances also have to be taken into consideration. Having regard to the omnibus allegation, we think it is not safe to convict every one of them for the offence of murder  by  applying  Section  149  IPC.  On  a  careful examination  of  the  entire  prosecution  case  and  the surrounding circumstances, we think the common object of  the unlawful  assembly was only  to cause grievous

2 1993 Supp (2) SCC 534

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hurt.  But A-1 acted in his own individual  manner and caused one injury with the sword which proved fatal.”

18. No doubt, in the scuffle that took place, one blow came to be inflicted on

the  head  of  Ashok  which  injury  proved  fatal.  However,  this  by  itself

cannot be the reason to conclude that there was any intention to commit

his  murder.  If  30  persons had  attacked the  members of  Deshmukh

Group, there are no injuries on the vital parts of other persons who got

injured in the said episode.  Ashok also suffered only one injury on his

head and no other injury is on vital part of his body.  Had there been any

common  objective  to  cause  murder  of  the  members  of  Deshmukh

Group, there would have been many injuries on deceased Ashok as well

as other injured persons on the vital parts of their body. On the contrary,

it has come on record that the injuries suffered by other persons are on

their back or lower limbs i.e. legs etc.  

19. We,  thus,  hold  that  there  was  no  preconceived  common  object  of

eliminating  the  members  of  Deshmukh  family  and  group  and  the

assembly was not acquired with any deadly weapons either, as held by

the High Court.   Even the High Court  has not  pointed out  any such

evidence.  These findings are hereby set aside.  The conviction of the

appellants under Section 302 IPC is converted into Section 304-II IPC

for  which  the  appellants  are  sentenced  for  rigorous  imprisonment  of

seven  years  each.   We  were  informed  that  all  the  appellants  have

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already undergone sentence of seven years or more.  If that is correct,

these appellants shall be released forthwith, if not required in any other

case.    

Appeals are allowed partly in the aforesaid terms.

.............................................J. (A.K. SIKRI)

.............................................J. (R.K. AGRAWAL)

NEW DELHI; FEBRUARY 02, 2017.