Research › Search › Judgment

Bombay High Court · body

2006 DIGILAW 500 (BOM)

CHINAPPA SAYAJEE FULMALI v. STATE OF MAHARASHTRA

2006-03-31

S.P.KUKDAY

body2006
( 1 ) THE Judicial Magistrate (First Class), Ashti, convicted the petitioners for offences punishable under sections 147, 148, 323 read with section 149, 324 read with section 149, 325 read with section 149 and 326 read with section 149 of Indian Penal Code, and sentenced them to pay fine of Rs. 100/- each, in default, to suffer rigorous imprisonment for one month, for offences punishable under sections 147 and 148; fine of Rs. 50/- each, in default, to suffer rigorous imprisonment for 15 days, for offence punishable under section 323 read with section 149 of the Penal Code; fine of Rs. 100/- each, in default, to suffer rigorous imprisonment for one month, for offence punishable under section 324 read with section 149 of the Penal Code; rigorous imprisonment for one month and to pay fine of Rs. 200/- each, in default, to suffer rigorous imprisonment for one month, for offences punishable under section 325 read with section 149 and section 326 read with section 149 of the penal Code, by his order dated 21-1-1991. The substantive sentences were directed to run concurrently. The matter was carried in appeal. Learned Sessions Judge dismissed the appeal by order dated 3-3-1998. Both these orders are impugned in the present petition. ( 2 ) BRIEFLY stated, the facts are that Narsabai is wife of petitioner No. 1, chinappa. There was an estrangement between the spouses about three years prior to the incident. Since then Narsabai was living at Doithan with her mother. On 1-8-1986, at about 5. 30 p. m. Narsabai, her brother Gangaram, Yallappa (PW 8) and his wife were taking the she-buffaloes to the river. On their way to the river, they were obstructed by petitioner No. 1. He asked Narsabai to come with him. Narsabai refused saying that he had married a second wife. The petitioner, therefore, got annoyed and dealt blows on her hands with iron bar. Gangaram and yallappa intervened. At that moment, other petitioners including deceased Sayaji joined petitioner No. 1. During the course of the quarrel, petitioner Barkya dealt blow with iron bar on the head of Yallappa. Petitioner No. 1 Chinappa dealt blows to Gangaram. Petitioner No. 2 Saheba dealt axe blow on right leg of Papa causing compound fracture. Thereafter, wife of Yallappa, namely, Shetibai, was also assaulted. Assailants then went to the tent in the field and assaulted bangarya, uncle of Gangaram. Petitioner No. 1 Chinappa dealt blows to Gangaram. Petitioner No. 2 Saheba dealt axe blow on right leg of Papa causing compound fracture. Thereafter, wife of Yallappa, namely, Shetibai, was also assaulted. Assailants then went to the tent in the field and assaulted bangarya, uncle of Gangaram. Gangaram lodged report of this incident with the police. On the basis of this report, offence came to be registered. The injured were sent to dispensary where they were examined by Dr. Bansode (PW 5 ). Papa who sustained a compound fracture, was sent to hospital at Beed for X-ray. After completion of investigation, charge-sheet came to be filed against all the petitioners. ( 3 ) AT the conclusion of trial, learned trial Judge found that the petitioners were members of unlawful assembly formed with the common object to take narsabai with them and for that purpose, to use force, if necessary. In the prosecution of the common object, the petitioners caused injuries to Narasabai, gangaram, Yallappa and Papa by using lethal weapons. He therefore, convicted the petitioners of the offences punishable under sections 147, 148, 323 read with section 149. 324 read with section 149, 325 read with section 149 and 326 read with section 149 of Indian Penal Code, and sentenced them to various punishments, as stated earlier. ( 4 ) THE matter was carried in appeal. Learned Sessions Judge, Deed, found that the findings recorded by the learned trial Judge are based on proper appreciation of evidence. He, therefore, dismissed the appeal by order dated 3-3-1998. These orders are impugned in the present revision petition. ( 5 ) THE scope of revisional jurisdiction is limited. Revisional jurisdiction is to be exercised to prevent miscarriage of justice in any of the following contingencies, namely, (i)) where the findings of facts recorded by the lower courts are perverse; (ii) the findings are not based on evidence or material evidence is ignored; and (iii) any other illegality or procedural defect has been committed leading to the miscarriage of justice. In the present case, learned counsel for the petitioners contends that the order of conviction and sentence is illegal, firstly, because the Doctor from Civil Hospital, Beed, is not examined, and secondly, because the weapons were not recovered on the basis of confessional statement of the accused and are not properly identified. In the present case, learned counsel for the petitioners contends that the order of conviction and sentence is illegal, firstly, because the Doctor from Civil Hospital, Beed, is not examined, and secondly, because the weapons were not recovered on the basis of confessional statement of the accused and are not properly identified. ( 6 ) LEARNED Counsel for the petitioners has taken me through almost all the evidence. It can be seen that the injured persons Gangaram (PW 6), Yallappa (PW8), Papa (PW 4), Narsabai (PW 9) and Bangarya (PW 7) have attributed acts to each of the petitioners. Their evidence shows that the petitioners had come there to forcibly carry Narsabai with them. All of them were armed and used the weapons during the course of assault. The evidence of injured persons is corroborated by the evidence of Kalyan (PW 2) and Maruti (PW 3) who are independent witnesses. Presence of these witnesses at the time of occurrence is found to be natural. The victims had come to the river for watering the cattle. The evidence of injured persons is further substantiated by the medical evidence of dr. Bansode (PW 5 ). ( 7 ) THE prosecution has to establish that the petitioners formed unlawful assembly with a common object and committed offences in pursuance of the said common object. Section 141 of the Indian Penal Code defines unlawful assembly as an assembly of five or more persons with one of the five common objects enumerated by the said section. In the present case, we are concerned with third clause which postulates formation of common assembly by five or more persons for the purpose of committing any mischief or criminal trespass, or other offence. It appears that the evidence is not elaborately discussed by the trial Court in respect of the formation of unlawful assembly. However, while rejecting the contention of learned defence Counsel, learned trial Judge has referred to the evidence of witnesses to show that the petitioners committed offences during the course of occurrence. The evidence does establish that the petitioners, who were six in number at the time of occurrence, had approached Narsabai and others with the object of taking Narsabai to come back to her matrimonial house by using force, if necessary, and as Narsabai refused to accede to the request, she herself and others who were with her were assaulted. The evidence does establish that the petitioners, who were six in number at the time of occurrence, had approached Narsabai and others with the object of taking Narsabai to come back to her matrimonial house by using force, if necessary, and as Narsabai refused to accede to the request, she herself and others who were with her were assaulted. Itcan be seen from the evidence that some of the petitioners were armed with axe, iron bars and sticks. The trial court and the lower Appellate Court have, therefore, rightly arrived at the conclusion that the members of the unlawful assembly were armed with deadly weapons and used them for the commission of offence in pursuance of the common object of the unlawful assembly. In view of the finding of the lower courts, that the petitioners did form an unlawful assembly and the offences were committed in pursuance of the common object, all the members of the assembly become liable for punishment by virtue of section 149 of the Indian Penal Code. Section 149 of the Penal Code creates a vicarious liability for the acts committed in pursuance of the common object by any member of the assembly. The basis for vicarious liability of a member of unlawful assembly is he should have joined unlawful assembly for achieving the common object. Therefore, once it is held that the petitioners did form an unlawful assembly, all of them become vicariously liable for the acts committed by any member of the unlawful assembly. ( 8 ) IN the present case, the evidence discloses that petitioner No. 2 Saheba dealt axe blow on the right leg of Papa (PW 4) causing a compound fracture. Petitioner No. 1 Chinappa assaulted Narsabai and Gangaram with iron bar. Petitioner No. 5 Barkya dealt blow with iron bar on the head of Yallappa. All the petitioners then went to the tent in the field and assaulted Bangarya. Medical evidence of Dr. Bansode (PW 5) substantiates oral evidence of injureds and the independent witnesses. ( 9 ) LEARNED Counsel for the petitioners has contended that as the Medical officer from Civil Hospital, Beed, where the X-ray is taken, is not examined, it cannot be said that causing of grievous hurt is proved. It is contended that the certificate in respect of Papa had to be issued by the concerned Medical Officer from the Civil Hospital. It is contended that the certificate in respect of Papa had to be issued by the concerned Medical Officer from the Civil Hospital. There is no foundation for making such a submission. It can be seen that Papa had sustained a compound fracture. Therefore Dr. Bansode (PW 5) could detect the fracture at the time of examination of the patient. Dr. Bansode has proved injury certificate of Papa (Exhibit 76) which refers three injuries including compound fracture of the right tibia fibula with lacerated injury of size 2 x 1/2 cm. Direction irregular. The Medical Officer has testified that he sent the patient for X-ray for confirmation of the fracture to General Hospital at beed. It can, therefore, be seen that Papa was sent to Civil Hospital only for the x-ray and not for the treatment. Therefore, it is not necessary to examine the medical Officer from the Civil Hospital. It is not even contended by the learned counsel for the petitioners, that Papa was treated at Civil Hospital by any Doctor. Therefore, the contention, that in the absence of evidence of some Doctor from the Civil Hospital, causing of grievous hurt is not proved, cannot be sustained. ( 10 ) THE second limb of argument is that the weapons are not properly identified. It is not in dispute that the weapons are not discovered on the basis of confessional statement of any of the petitioners. The weapons were attached under panchanama Exhibit 91 as they were produced by some of the petitioners at the Police Station and they were attached from them under the panchanama. Admittedly, the weapons were not stained with blood. This contention was raised before the Courts below. Both the Courts below have rightly pointed out that even if the weapon is not taken to be properly identified, that does not affect the veracity of the oral evidence of the witnesses. As the oral evidence of the injureds is corroborated by the medical evidence and the evidence of independent witnesses, the petitioners came to be convicted on the basis of oral evidence on record. It is not sine qua non for establishing the guilt of accused that the weapon of offence should always be traced and identified. Thus, no infirmity can be found with the conclusions reached by the lower Courts in respect of absence of identification of the weapons. It is not sine qua non for establishing the guilt of accused that the weapon of offence should always be traced and identified. Thus, no infirmity can be found with the conclusions reached by the lower Courts in respect of absence of identification of the weapons. Therefore, the second contention also cannot be sustained. ( 11 ) THE Revisional Court is not to re-appreciate the evidence as if it is sitting in second appeal. If a finding reached by the Courts below is based on the evidence, then the finding cannot be reversed merely because another view is possible. In the present case, no perversity in the findings recorded by the lower courts is noticed. Therefore, no interference in exercise of revisional jurisdiction of this Court, is called for. ( 12 ) AT this stage, learned Counsel for the petitioners submits that benefit of the Probation of Offenders Act, 1958, be given to the petitioners. According to the learned Counsel, the incident has taken place in the year 1986. The petitioners are now advanced in age. Therefore, they are entitled to benefit of probation under section 4 of the Probation of Offenders Act. In support of his contention, learned Counsel has placed reliance on the ruling of the Apex Court in the matter of Jagat Pal Singhand others vs. State of Haryana, reported in AIR 2000 SC 3622 (1 ). In that case, the appellants were convicted for offences punishable under sections 323, 452 and 506 read with section 34 of the Penal code. Having regard to the facts of that particular case, learned Counsel for the appellants submitted that the Court should have taken recourse to the provisions of Probation of Offenders Act or section 360 of the Code of Criminal Procedure. The Apex Court accepted the submission and released the appellants on executing a bond for keeping good behaviour and peace for a period of six months which was to be executed before the Magistrate. There can be no dispute that in appropriate cases, benefit of probation should be given to the accused. While considering whether benefit of probation should be granted, several facts including nature of the offence, its general effect on the society, conduct of the offender and the relevant provisions of law, etc. are to be considered. In the present case, we are dealing with the tribals. While considering whether benefit of probation should be granted, several facts including nature of the offence, its general effect on the society, conduct of the offender and the relevant provisions of law, etc. are to be considered. In the present case, we are dealing with the tribals. It is found that for settlement of dispute, the petitioners resorted to assault by using lethal weapons. It is imperative that such a tendency should be deprecated. In the present case, the courts below have applied deterrent theory of punishment. It can be seen that for offences punishable under section 325 read with section 149, and section 326 read with section 149, separate sentence of imprisonment is not imposed on any of the petitioners. So far as these two offences are concerned, the sentence of rigorous imprisonment for one month is directed to run concurrently, The quantum of punishment is determined keeping in mind the relevant factors. The object in sentencing the petitioners is to deter others similarly situated from committing the similar offence. In these circumstances, it is apparent that the present case is not the case where benefit of probation can be given to the petitioners by resorting to reformative theory of punishment. The quantum of sentence is properly determined, it is, therefore, not necessary to interfere with the order of conviction and sentence passed by the lower Courts. ( 13 ) IN the result, the Criminal Revision Application fails and the same is dismissed. Rule discharged. The petitioners shall surrender to their bail before the trial Court on or before 19th April, 2006, for serving remaining sentence. Revision dismissed.