R.C Lahoti, J.— Eight accused persons, namely, Ashok Bhikaji Gurav (Accused 1), Nathuram Bhikaji Gurav (Accused 2), Santosh @ Kalya Jagannath Shirwadkar (Accused 3), Santosh @ Babya Dashrath Nagvekar (Accused 4), Ravindra @ Bobby Anant Surve (Accused 5), Anant @ Papya Jagannath Shirodkar (Accused 6), Prakash @ Vatanya Laxman Pednekar (Accused 7) and Rajendra Shantaram Todankar (Accused 8) were tried on several charges framed under Sections 143, 144, 147, 302, 302/149, 302/34, 307, 307/149, 307/34, 324, 324/149, 324/34 and 324/511 IPC. On trial all the accused persons were held to have committed offences punishable under Sections 143, 144, 147, 302/149 and 324/149 IPC. For offence under Section 302 read with Section 149 IPC each of the accused persons was sentenced to suffer imprisonment for life and to pay a fine of Rs 1000, in default of payment to suffer further RI for 6 months. For offence under Sections 324/149 IPC each of the accused was sentenced to suffer RI for 6 months. Though all the accused were also convicted for the offences punishable under Sections 143, 144 and 147 IPC but no separate sentences were awarded thereon. All the eight accused persons preferred an appeal before the High Court. During the pendency of the appeal Santosh @ Babya Dashrath Nagvekar and Prakash @ Vatanya Laxman Pednekar, Accused 4 and 7, died. The appeal surviving for decision as regards the six accused was held liable to be dismissed upholding the conviction as recorded and the sentences as passed by the trial court.
2. Ashok Bhikaji, Accused 1 and Nathuram Bhikaji, Accused 2 filed SLP (Crl.) No. 3738 of 2000 which was dismissed as not admitted by this Court on 25-1-2001. Accused 8 Rajendra Todankar filed SLP (Crl.) No. 4205 of 2000 which has been registered as Crl. Appeal No. 651 of 2001 on leave to appeal having been granted. SLP (Crl.) preferred by Santosh Shirwadkar, Ravindra Surve and Anant Shirodkar (Accused 3, 5 and 6) has been registered as Criminal Appeal No. 652 of 2002 on leave being granted. Thus, in substance it is the guilt of Accused 3, 5, 6 and 8 which survives for determination in these appeals.
3. For the sake of convenience, the accused persons shall be referred to by their numbers as they were arrayed before the Sessions Court. Reference to Accused 1 and 2 though their SLP (Crl.) has been dismissed and to Accused 4 and 7, who have died during the pendency of their appeal in the High Court is being made where necessary only for the purpose of determining the guilt of the accused-appellants before us.
4. In the locality known as Prabhadevi situated within the jurisdiction of Police Station Dadar of Mumbai there is a place known as Hatiskar Wadi. Nariman Bhat Nagar is an adjoining locality. One Mukesh Purav resides in Hatiskar Wadi. Ashok Gurav, Accused 1 resides in Nariman Bhat Nagar. These two persons are ringleaders of their respective gangs formed in the two localities and they are involved in various illegal activities. The injured persons and the accused persons are residents of these two localities and were known to each other since before the incident. An acute rivalry prevails between the two groups. Prior to this incident on the festival of Janmashtami there was a competitive game played known as dahi handi, also known as “Govinda”, wherein both the gangs had participated and quarrelled with each other. The present incident took place on 27-9-1991 at about 8.30 p.m
5. There is a four-storeyed building, the ground floor whereof is occupied by a restaurant known as “Sanket Bar”. There is a road in front of the hotel. The door leading to the way for the upper floors of the building is by the side of the hotel. There is a pan shop near the hotel. By the side of the hotel there are other shops providing the look of a commercial complex.
6. Gopikrishna, who died in the incident, was standing in front of the entrance door of the building. Jaideep Bhosale, PW 3 and Dyandeo Sawant, PW 4 were standing near Gopikrishna. The three were busy talking to each other. At a little distance from there one Sanjay Patil, PW 1 was standing. Apparently, Sanjay Patil and the trio consisting of Jaideep, Dyandeo and Gopikrishna had nothing to do with each other. Sanjay, PW 1 saw all the eight appellants coming towards the hotel. The accused persons passed by his side and reached the place where the three persons including Gopikrishna were chit-chatting. The accused persons were armed with naked weapons such as swords, choppers and gupti. As soon as they reached near Gopikrishna they opened an assault on all the three persons standing there. Jaideep and Dyandeo ran away from the place. Gopikrishna tried to escape for his life by running towards the door providing access to the staircase leading to the upper floors of the building. He went on running up to the fourth floor leaving a trail of blood behind. The accused persons chased him and injured him fatally. He fell down in a pool of blood on the landing of the fourth floor.
7. Sanjay, PW 1 apprehended that he may be assaulted and injured. He tried to run away from the place of the incident. He was noticed by the appellants; some of them followed him and inflicted injuries on his person.
8. The appellants then shouted loudly so as to create terror in the locality. The frightened neighbours downed the shutters of their shops and houses. The appellants ran away. Sanjay, PW 1 picked up a taxi and proceeded to K.E.M Hospital for medical help and treatment. In the meantime the witnesses Jaideep and Dyandeo returned to the place of the incident. They reached the fourth floor and found Gopikrishna lying injured and bleeding profusely. They brought him down and removed him to K.E.M Hospital where he was declared dead. A police constable on duty at the hospital flashed a message to the police station whereon PSI Agarkar and PI Pisal rushed to the hospital with police force. The statement of Sanjay was recorded, got signed by him and sent to the police station where it was registered as FIR of the incident at 11.30 p.m The investigation commenced. Inquest on the dead body of Gopikrishna was held. His clothes were seized. Autopsy on the dead body was performed by Dr Subhash, PW 14. The following injuries were found on his person:
(i) Incised wound on the back of head, 4 cm × 1.0 cm × muscle-deep. On right side of midline in parieto-occipital region.
(ii) Incised stab wound on left gluteal fold. Oblique wound, lower and pointed upper end. Blunt, rugged, contused. Dimensions: 2.5 cm × 0.8 cm × muscle-deep.
(iii) Incised wound on right thumb palmar aspect. Vertical wound 1.5 cm × 0.5 cm.
(iv) Scratch on right occipital bone, outer table in base of Injury 1 with contusion in layer of scalp deep to the injury.
On dissecting, Injury 2 was found to be deep in gluteal muscles and had cut in gluteal vessels with extensive haemorrhage found in muscles. Total depth of injury was 15.0 cm.
9. In the opinion of Dr Subhash, the cause of death was haemorrhage and shock due to injury to major blood vessels by sharp-edged weapons. All the injuries were ante-mortem and sufficient in the ordinary course of nature to cause death. When Dr Subhash was examined in the Court, he stated that the injuries on the person of the deceased could be caused by weapons like gupti and chopper. Though buttock is not a vital organ of the body but in case of the deceased important blood vessels in the buttock were injured and so the death was caused. In spite of having sustained the injuries, the deceased could have run and climbed the stairs to save his life.
10. Sanjay Patil, PW 1 was medico-legally examined by Dr Subhash Shivade who prepared the memo of injuries. However, by the time the trial commenced Dr Shivade had left the government service and gone to England. Dr Arun, PW 17, who had worked with Dr Shivade, was examined. He proved the memo of injuries containing the particulars of the injuries suffered by Sanjay, PW 1. The following injuries were found on the person of Sanjay Patil:
(1) Incised wound in right parietal region 6 × 2 cm, bone-deep.
(2) Incised wound on right elbow joint opened.
(3) Multiple abrasions on back and right scapula.
(4) Stab injuries on right hypochondrium (abdomen) 2.5 × 2 × 3 cm, about 4 cm from the subcostal region, about 10 cm lateral to the midline.
11. In the opinion of Dr Arun, looking to the nature of injuries, death was unlikely from such injuries. The injuries could have been caused by weapons like gupti and chopper. There was no bone injury. No vital organ of the body was cut or damaged.
12. The prosecution case hinges upon the testimony of four witnesses, namely, Sanjay Patil (PW 1), Jaideep (PW 3), Dyandeo Sawant (PW 4) and Prashant (PW 5). We will analyse the testimony of these four witnesses so as to find out the nature of the offence committed and the involvement of the accused persons. Whether all accused persons, as alleged, were involved in the incident, and if so, to what extent?
13. We have already noticed that the localities to which the accused persons and the deceased and the witnesses belong are situated adjoining each other. The presence of the accused persons at the place of occurrence can be natural as well. Though the witnesses have deposed to all the eight accused persons having come together at the place of the incident and all the accused persons having assaulted the deceased Gopikrishna and the injured Sanjay Patil (PW 1), however, a closer scrutiny of the testimony of the eyewitnesses reveals that, in fact, there are two incidents of assault which have taken place in quick succession. The nature of the guilt attributable to the accused persons or the criminal liability which can be fastened on them shall have to be determined by reference to the two assaults. There is no material available on record to hold that the deceased Gopikrishna and the injured Sanjay Patil had anything to do with each other or the common object of the alleged unlawful assembly of eight persons was to cause the death of Gopikrishna as also to cause injuries to Sanjay Patil and such common object was shared by all the eight accused persons. A careful reading of the testimony of the eyewitnesses reveals that while Accused 1 to 5 assaulted the deceased Gopikrishna, the other three accused persons have allegedly participated in assault on Sanjay Patil. We are referring to the assault by three accused persons, namely, Accused 6 to 8 on Sanjay Patil by way of stating the prosecution case because as we will discuss shortly hereinafter, we have grave doubts if Rajendra Todankar, Accused 8, had really participated in the assault and, therefore, whether in the facts and circumstances of the case he deserves to be allowed the benefit of doubt.
14. Section 149 of the Indian Penal Code provides that 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. The two clauses of Section 149 vary in degree of certainty. The first clause contemplates the commission of an offence by any member of an unlawful assembly which can be held to have been committed in prosecution of the common object of the assembly. The second clause embraces within its fold the commission of an act which may not necessarily be the common object of the assembly, nevertheless, the members of the assembly had knowledge of likelihood of the commission of that offence in prosecution of the common object. The common object may be commission of one offence while there may be likelihood of the commission of yet another offence, the knowledge whereof is capable of being safely attributable to the members of the unlawful assembly. In either case, every member of the assembly would be vicariously liable for the offence actually committed by any other member of the assembly. A mere possibility of the commission of the offence would not necessarily enable the court to draw an inference that the likelihood of commission of such offence was within the knowledge of every member of the unlawful assembly. It is difficult indeed, though not impossible, to collect direct evidence of such knowledge. An inference may be drawn from circumstances such as the background of the incident, the motive, the nature of the assembly, the nature of the arms carried by the members of the assembly, their common object and the behaviour of the members soon before, at or after the actual commission of the crime. Unless the applicability of Section 149 — either clause — is attracted and the court is convinced, on facts and in law, both, of liability capable of being fastened vicariously by reference to either clause of Section 149 IPC, merely because a criminal act was committed by a member of the assembly every other member thereof would not necessarily become liable for such criminal act. The inference as to likelihood of the commission of the given criminal act must be capable of being held to be within the knowledge of another member of the assembly who is sought to be held vicariously liable for the said criminal act. These principles are settled. Applying these tests to the facts found proved beyond reasonable doubt, Accused 1 to 5 can be held liable for the offence under Sections 302/149 IPC for the assault resulting in the death of Gopikrishna while Accused 6 and 7 can be held liable for their individual acts of assault committed on Sanjay Patil.
15. They are Accused 1 to 5 who had assaulted the deceased and followed him up to the 4th floor. Accused 1 to 5 armed severally with deadly weapons having initially assaulted the deceased Gopikrishna when he was standing on the ground floor, chased him by following him on the staircase leading to the 4th floor where he fell down in the pool of blood. So far as Accused 1 to 5 are concerned, it can be safely inferred that they were members of the unlawful assembly armed with deadly weapons formed with the common object of fatally injuring the deceased Gopikrishna so as to cause his death. Their conviction for the offence under Section 302 read with Section 149 IPC is liable to be sustained. If death has been caused in prosecution of common object of unlawful assembly, it is not necessary to record a definite and specific finding as to which particular accused out of the members of the unlawful assembly caused the fatal injury. Once an unlawful assembly has come into existence, each member of the assembly becomes vicariously liable for the criminal act of any other member of the assembly committed in prosecution of the common object of the assembly.
16. So far as the assault on Sanjay Patil (PW 1) is concerned, the witnesses do not attribute any overt act qua Sanjay Patil (PW 1) to Accused 1 to 5. It appears that while beating the retreat, some of the accused other than Accused 1 to 5 noticed Sanjay Patil and diverted themselves to an assault on him. Assault on Sanjay Patil was not preplanned nor shared as common object by Accused 1 to 5. No unlawful assembly was in existence nor formed into being at the spur of the moment so far as the assault on Sanjay Patil is concerned.
17. We would like to deal specifically with the case of Rajendra Todankar (Accused 8). According to Sanjay Patil (PW 1), he was assaulted by three accused persons, namely, Anant @ Papya (Accused 6) who stabbed on the right side of the stomach with a gupti; by Prakash Pednekar @ Vatanya (Accused 7) who dealt a sword-blow on the right side of upper head and by Rajendra Todankar (Accused 8) who dealt sura (dagger)-blows on his back twice and on the left arm near elbow, whereafter he fell down. During cross-examination he stated that the accused Rajendra Todankar had used his weapon with force while assaulting on him. Prashant (PW 5) states Vatanya (Accused 7) and Rajendra Todankar (Accused 8) assaulted Sanjay Patil. According to this witness, the weapon said to have been used by Rajendra Todankar was a chopper. During cross-examination he stated that Rajendra Todankar had dealt chopper-blows forcefully on Sanjay. He further stated that the accused Babya had also stabbed Sanjay. Apart from the fact that there is divergence in the statements of the two witnesses as to the weapon which is attributed to Accused 8, what is more significant is that injuries by chopper or sura (dagger) are not to be found on the back of Sanjay and in the manner in which the two witnesses stated the injuries having been caused to Sanjay forcefully. Such use of sharp weapon would not result in mere abrasion on the back. There is no injury on the left arm of Sanjay (PW 1). Thus, the injuries specifically attributed to accused Rajendra Todankar by Sanjay (PW 1) and Prashant (PW 5) and consequently the role assigned to him in the incident is belied by medical evidence. Jaideep (PW 3) and Dyandeo Sawant (PW 4) have not mentioned even the presence of Rajendra Todankar much less any participation by him in the assault. This accused Rajendra Todankar is in government service. In his statement under Section 313 CrPC he stated that he is a social worker whose activities are not to the liking of Mukesh Purav, the gang leader, and that is the reason why he has been falsely implicated. The participation of Rajendra Todankar (Accused 8) in the incident is rendered doubtful.
18. So far as the accused Anant @ Papya (Accused 6) and Prakash @ Vatanya (Accused 7) are concerned, they cannot be held to be members of the unlawful assembly, which assaulted Gopikrishna. Their assault on Sanjay Patil (PW 1) is proved beyond reasonable doubt. Each one of them has caused simple injuries by a sharp weapon on the person of Sanjay Patil. Therefore, they can each be held liable only for an offence punishable under Section 324 IPC. Their conviction under Section 302 read with Section 149 IPC, so far as the murder of Gopikrishna is concerned, cannot be sustained and must be set aside. So also their conviction under Sections 143, 144 and 147 IPC must go.
19. For the foregoing reasons, Criminal Appeal No. 651 of 2001 preferred by Rajendra Shantaram Todankar (Accused 8 in the trial court) is allowed. His conviction is set aside and he is acquitted of the charges framed against him. He shall be released forthwith if not required to be detained in connection with any other offence.
20. In Criminal Appeal No. 652 of 2001 the appellants are Santosh @ Kalya (A-3), Ravindra @ Bobby (A-5) and Anant @ Papya Shirodkar (A-6). The conviction of accused Santosh @ Kalya (A-3) and Ravindra @ Bobby (A-5) under Section 302 read with Section 149 IPC along with the sentence of imprisonment for life are maintained. Their conviction under Sections 324/149 IPC is set aside. So far as accused Anant @ Papya Shirodkar (A-6) is concerned, his conviction under Sections 302/149 IPC as also under Sections 143, 144 and 147 IPC is set aside. He is held guilty under Section 324 IPC and for this offence sentence of RI for 6 months is maintained. Criminal Appeal No. 652 of 2001 is allowed in part to this extent.