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2006 DIGILAW 499 (BOM)

SUBHASH RAMBHAU WAGASKAR v. STATE OF MAHARASHTRA

2006-03-31

S.P.KUKDAY

body2006
( 1 ) IN Regular Criminal Case No. 103/1987 by his judgment and order dated 20-12-1996, learned Judicial Magistrate (First Class), karjat, convicted in all 9 accused, including the present petitioners, for the offence punishable under section 143 of Indian Penal Code and sentenced them to suffer rigorous imprisonment for 3 months and to pay a fine of Rs. 1,000/- each, in default, to suffer simple imprisonment for 15 days. The accused were further convicted for the offence punishable under section 342 read with section 143 of the Penal Code and sentenced to suffer rigorous imprisonment for 3 months and to pay a fine of Rs. 1,000/-, in default, to suffer simple imprisonment for 15 days. The substantive sentences were directed to run concurrently. The matter was carried in appeal to the Court of Sessions at Ahmednagar. Learned Sessions Judge partly allowed the appeal by setting aside the conviction and sentence of accused Nos. 1 and 4 to 9. He, however, maintained the order of conviction and sentence passed by the trial Court against accused Nos. 2 and 3 i. e. present petitioners. This order is impugned by the petitioners in the present petition. ( 2 ) BRIEFLY stated, the facts are that the complainant Yuvraj Shinde married sangita, sister of the petitioners, against the wishes of her father Ramchandra @ rambhau. The marriage was solemnized on 23-2-1986. Sangita expired on 18-2- 1987. Her father lodged report against complainant Yuvraj and his mother making allegations that they have caused death of Sangita by subjecting her to cruelty. It was also alleged that deceased Sangita was murdered. At the conclusion of trial, complainant and his mother were convicted. On 13-4-1987, complainant lodged a report with Police Station, Karjat, making allegations that in all 20 persons had come to the village in tempo. They came to his Vasti and assaulted himself and his servant Haribhau (PW 2 ). Both of them were dragged to tempo bearing registration No. MTL-6610, which was parked near Grampanchayat office at village Yergaon. They were rescued from the tempo by prosecution witnesses, namely, Jayram, Ramdas, Bhaurao and Jaba dagdu. The victims were referred to Medical Officer at Mirajgaon for examination and treatment. After completion of investigation, charge-sheet came to be filed against in all 9 accused in the Court of Judicial Magistrate (First class), Karjat. They were rescued from the tempo by prosecution witnesses, namely, Jayram, Ramdas, Bhaurao and Jaba dagdu. The victims were referred to Medical Officer at Mirajgaon for examination and treatment. After completion of investigation, charge-sheet came to be filed against in all 9 accused in the Court of Judicial Magistrate (First class), Karjat. ( 3 ) AT the conclusion of trial, learned Magistrate found that participation of all the accused in commission of offence is proved. The culprits were 20 in number and had formed an unlawful assembly. Learned Magistrate further found that the offence punishable under section 323 of the Penal Code is not established as the Medical Officer was not examined and the injury certificate was not proved. In this view of the matter, learned Magistrate came to the conclusion, that all the accused (including the present petitioners), who were members of the unlawful assembly, are liable to be convicted of the offence punishable under section 143 and offence punishable under section 342 read with section 143 of the Penal Code. ( 4 ) THE order of conviction and sentence passed by the trial Court on 20-12-1996 was impugned before the lower Appellate Court in Criminal Appeal No. 4/1997. Learned Sessions Judge, Ahmednagar by judgment and order dated 3-4-1998, found that the offence is established only against petitioner Nos. 2 and 3 who were identified by servant Haribhau (PW 2 ). In this view of the matter, he partly allowed the appeal by setting aside the order of conviction and sentence passed on original accused Nos. 1 and 4 to 9, but confirmed the order of conviction and sentence passed on original accused Nos. 2 and 3 i. e. the present petitioners. This order of the lower Appellate Court has been impugned by the petitioners in the present revision petition. ( 5 ) LEARNED Counsel for the petitioners has challenged the legality and validity of the impugned order on two counts : (i) that the petitioners are convicted for the offences with which they were not charged and (ii) that the findings regarding involvement of the petitioners recorded by the Courts below are perverse insofar as they are based on erroneous appreciation of evidence on record. ( 6 ) THE first ground need not detain us longer. ( 6 ) THE first ground need not detain us longer. Learned Counsel for the petitioners has contended that the charge for offence punishable under section 342 read with section 143 of the Penal Code was not framed against the petitioners. The charge was in respect of offence punishable under section 342 read with section 34 of the Penal Code. According to the learned Counsel for the petitioners, in this view of the matter, it was not open to the lower Courts to convict the petitioners for the offence punishable under section 342 read with section 143 of the Penal Code with which they were not charged. Learned counsel for the petitioners contends that such an order of conviction amounts to an illegality and deserves to be set aside. In support of this contention, reliance is placed on the ruling of this Court in the matter of Asaram Bhavandin Yadav vs. State of Maharashtra reported in 1991 Mh. LJ. 362 = 7997 Cril. J. 7252. In that case, the conviction was based on the fact that accused Nos. 1 and 2 were found in possession of 13 bags of wheat and 4 bags of rice on 5-1-1987. The commodity was traced in the shop of some other accused. The accused were also charged for having committed offence punishable under section 3 read with section 7 of the Essential Commodities Act. During the trial, it was found that the wheat and rice were available in the open market and the wheat was deleted from schedule No. 1 of the Maharashtra Food Grains Dealers Licensing Order, 1963, by the Government Notification dated 24-11-1986. There was no evidence to come to the conclusion that 10 bags of wheat and one bag of rice were from fair price shop or were issued by the Government from the Government Godown. In this view of the matter, it was contended that the charge against other accused cannot be sustained. In this background, the Court took a view that the matter can at the most, be remanded for re-trial. However, as the charges were of trivial nature, re-trial was not directed. This ruling does not apply to the facts and circumstances of the present case. Another ruling cited is the decision of the Apex Court in the matter of Bala seetharamaiah vs. Perike S. Rao and others, reported in 2004 Cri. LJ. 2034. However, as the charges were of trivial nature, re-trial was not directed. This ruling does not apply to the facts and circumstances of the present case. Another ruling cited is the decision of the Apex Court in the matter of Bala seetharamaiah vs. Perike S. Rao and others, reported in 2004 Cri. LJ. 2034. In that case, charge in respect of offence punishable under section 302 read with section 149 of the Penal Code was not framed against the accused. The charge framed was for offence punishable under section 302, simpliciter. In this background, it was held that it was not open to the Sessions Court to convict the appellants for the offence punishable under section 302 read with section 149 of the Penal Code. This ruling also does not help the petitioners as in that case, vicarious liability was sought to be saddled in the absence of the charge. This was not permissible as it was obligatory on the prosecution to establish that the appellantswere members of the unlawful assembly and the murder was committed in pursuance of the common object of the unlawful assembly. Such is not the case here. ( 7 ) IN the present case, it is pertinent to bear in mind, that the charge framed against the accused is in respect of offences punishable under sections 143, 147, 148, 342 and 323 read with section 149 and section 506 of the Indian Penal code. Alternative charge for offence punishable under section 342 read with section 34 of the Penal Code was also framed. However, at the conclusion of the trial, instead of convicting the accused with the aid of section 149, learned magistrate convicted them for offence punishable under section 342 read with section 143 of the Penal Code. Such a conviction is illegal. However, the fact remains that no prejudice is caused to the accused on account of non-framing of the charge or framing of incorrect charge. Even otherwise, it is pertinent to bear in mind that unless it is shown that the petitioners have suffered any prejudice on account of error or omission in framing of the charge, no interference in the order of conviction is warranted. In this behalf, reference can be made to the judgment of the Apex Court in the matter of K. Prema S. Rao and another vs. Yadla Srinivasa Rao and others, reported in (2003)1 SCC 2!7. In this behalf, reference can be made to the judgment of the Apex Court in the matter of K. Prema S. Rao and another vs. Yadla Srinivasa Rao and others, reported in (2003)1 SCC 2!7. In that case, the accused were charged for having committing offence punishable under sections 304-B and 498-A of the Penal Code. The trial Court convicted respondent No. 1 under section 498-A of the Penal Code, only. It was held on facts, that presumption under section 113-A of the Evidence Act could be raised and respondent 1 could be convicted under section 306 of the Penal Code as the case had all ingredients necessary for framing charge under that section and it was not necessary to remand the matter for re-trial. It was further observed that no opportunity of defence is required to be granted to the appellant when he had ample opportunity to meet the charge under section 498-A of the Indian Penal code. (Paras 24 and 25) in the present case also, the petitioners were facing the charge under sections 143, 147, 148, 506, 342, 323 read with section 149 and section 342 read with section 34 of the Penal Code. They had full opportunity to meet this charge. Therefore, the contention that ultimate conviction under section 342 read with section 143 of the Penal Code is illegal for want of framing of the correct charge, cannot be accepted. The correct approach should have been that the conviction with the aid of section 143 itself is illegal. It can be seen that section 143 of the penal Code provides punishment for being a member of an unlawful assembly. The Court has to come to the conclusion that the accused, in fact, formed an unlawful assembly with one of the common objects as enumerated in section 141 of the Penal Code. If this is proved, then accused can be convicted under section 143 of the Penal Code. If the offences are, in fact, committed in furtherance of the common object, then vicarious liability arises under section 149 of the Penal code and the accused can be convicted for the offences committed in prosecution of the common object of an unlawful assembly, with the aid of section 149 of the penal Code. If the offences are, in fact, committed in furtherance of the common object, then vicarious liability arises under section 149 of the Penal code and the accused can be convicted for the offences committed in prosecution of the common object of an unlawful assembly, with the aid of section 149 of the penal Code. ( 8 ) NORMALLY, as a matter of rule, the Revisional Court does not upset concurrent findings of fact but the present case appears to be an exception. Complainant Yuvraj Shinde (PW 1) is the person who married daughter of accused No. 1 Ramdas, namely, Sangita, against the wishes of Ramdas. The dead body of Sangita was found in a well on 18-2-1987. The foundation of the charge against the petitioners in the present case is the fact that the petitioners and their relatives had grudge against the complainant on account of death of Sangita and that they had came to Yergaon on 11-4-1987 at about 12 Noon to avenge death of sangita. The tempo was parked behind the Grampanchayat office and 20 persons went to the Vasti of complainant. The complainant and his servant Haribhau (PW 2) were standing in front of the house. Both the them were assaulted by all these 20 persons. They were then taken to the tempo and were confined there. As the complainant and Haribhau were raising shouts, the assailants started singing a song in a loud voice. However, on hearing cries for help, the victims were rescued by the Sarpanch of the village and some others. The complainant has not attributed specific act to any particular accused, nor did he made reference to any of the assailants by name. He has merely testified that the accused had come and had taken him and Haribhau to the tempo; they were confined in the tempo and were to be taken to the some place but prior to that the villagers rescued them. Haribhau (PW 2) has made a reference to the petitioners who were original accused Nos. 2 and 3 as one of the assailants. Learned Judge of the lower appellate Court has rightly come to the conclusion that the evidence of prosecution witnesses does not establish offence against any particular accused. He has, however, relied upon the reference made by Haribhau (PW 2) to the petitioners and has maintained conviction recorded against the petitioners by the trial Court. Learned Judge of the lower appellate Court has rightly come to the conclusion that the evidence of prosecution witnesses does not establish offence against any particular accused. He has, however, relied upon the reference made by Haribhau (PW 2) to the petitioners and has maintained conviction recorded against the petitioners by the trial Court. The norms for the appreciation of evidence are not adhered to by the trial Court and the lower Appellate Court. The only evidence which was against the petitioners is that of Haribhau. However, his master Yuvraj has not made any reference to participation of the petitioners though he knows them and other accused intimately. ( 9 ) IT is not in dispute that the tempo was parked behind the Grampanchayat office which is at considerable distance from the Vasti of complainant. The complainant and Haribhau were taken by 20 persons to the tempo through the village. If they were, in fact, raising cries for help, then villagers could have rescued them while they were being taken to the tempo. The theory propounded that it is only after they were confined in the tempo, attention of villagers was attracted, is too far fetched to bebelieved. Learned Counsel for the petitioners has rightly pointed out that in these circumstances, it ought to have been held that this complaint was filed as a counter blast to pressurize petitioners and their relatives who were witnesses in the Sessions Case. The natural course of conduct that if the victims raising shouts for help were paraded through the village by 20 persons, they would be rescued by the villagers at the earliest opportunity, is not taken into consideration by the learned Judges of the lower Courts. The prosecution story, that the assailants were singing in a loud voice to ensure that the shouts raised by victims would not be heard by others, to say the least, is strange. This is so because in the first place, if the accused start singing a song in loud voice, then they would be attracting attention of the villagers and the matter would have been any way investigated. The simple exercise was to gag the victims. The evidence that though the victims were paraded through the village, attention of villagers was not attracted till they were confined in the tempo, should not have been accepted by the trial Court and the lower Appellate Court. The simple exercise was to gag the victims. The evidence that though the victims were paraded through the village, attention of villagers was not attracted till they were confined in the tempo, should not have been accepted by the trial Court and the lower Appellate Court. In such cases, the benefit of doubt should have rightly been given to the petitioners as it is given to other accused. ( 10 ) THE Revisional Court rarely interferes with concurrent findings of facts. In the present case, several illegalities have been committed by the trial court and the lower Appellate Court has acquitted some of the accused by disbelieving the evidence, but has convicted petitioners on the basis of the same evidence. The appreciation of evidence by the trial Court is apparently erroneous. So far as lower Appellate Court is concerned, after coming to the conclusion that the conviction of accused Nos. 1 and 4 to 9 is not warranted, merely because some reference is made by Haribhau (PW 2) to the petitioners, without taking into consideration that the evidence of witnesses is not credible, the lower appellate Court has maintained conviction against the present petitioners. The lower Appellate Court has thus failed to appreciate that the conviction of petitioners for wrongful confinement on the basis that they were members of the unlawful assembly, could not have been sustained. The vicarious liability can only be fastened under section 149 of the Penal Code if it is proved that the offence is committed in prosecution of the common object of unlawful assembly. When evidence regarding participation of accused Nos. 1, 4 to 9 is disbelieved, it was not proper to convict the petitioners as members of unlawful assembly on the basis of the same evidence. It is also pertinent to note that there cannot be a conviction for offence punishable under section 342 read with section 143 of the penal Code. This conviction is totally illegal. Thus, on logical analysis of the evidence on record of this particular case, it can be seen that the findings recorded by the lower Courts against the petitioners are perverse and cannot be sustained. ( 11 ) NORMALLY, the Revisional Court does not interfere with the concurrent findings of facts recorded by the Courts below. However, in appropriate cases, if it is necessary to prevent miscarriage of justice, interference can be justified. ( 11 ) NORMALLY, the Revisional Court does not interfere with the concurrent findings of facts recorded by the Courts below. However, in appropriate cases, if it is necessary to prevent miscarriage of justice, interference can be justified. In cases where patent error or illegality has been committed by the lower Courts in appreciating the evidence by taking into consideration statements of witnesses and of the accused, and where the error is on account of misreading of the evidence, interference by Revisional Court can be justified. The principles governing exercise of powers by Revisional Courts are now well settled. In this behalf, reference can be made to the ruling of this Court in the matter of daungarshi Madanlal Zunzunwala vs. M/s Deviprasad Omprakash Bajoria and another, reported in 1985 Cri. LJ. 1943. In that case, after referring to the relevant aspects, it is observed that if the Court arrives at a finding without properly considering the evidence on record and without applying the principles of law correctly, it can never be called a "finding of fact". As such, finding of fact, even if concurrent, can never be binding on the Revisional Courts. In the present case, the earlier discussion would show that the finding recorded by the lower Court is perverse. In the light of this, the petitioners are entitled to succeed. ( 12 ) IN the result, the Criminal Revision Application is allowed. The order of conviction and sentence passed against the petitioners by the trial Court, as well as, lower Appellate Court, is quashed and set aside. The petitioners are acquitted of the offence punishable under section 143 and section 342 read with section 143 of Indian Penal Code. Their bail bonds stand cancelled. Fine, if paid, be refunded to the petitioners. Rule made absolute in the aforesaid terms. Application allowed.