Unlawful Assembly; Bhagwan Jagannath Markad Vs. State of Maharashtra [Supreme Court of India, 04-10-2016]

Penal Code, 1860 – Ss. 147, 149, 302 r/w. 149, 324 & 326 – Unlawful Assembly – When a crowd of unlawful assembly commits an offence, it is often not possible to accurately describe the part played by each of the assailants. Though the appreciation of evidence in such cases may be a difficult task, the court has to perform its duty of sifting the evidence carefully.

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

(V. GOPALA GOWDA) AND (ADARSH KUMAR GOEL) JJ.

OCTOBER 04, 2016

CRIMINAL APPEAL NO.1516 OF 2011

BHAGWAN JAGANNATH MARKAD & ORS. … APPELLANTS

VERSUS

STATE OF MAHARASHTRA … RESPONDENT

J U D G M E N T

ADARSH KUMAR GOEL, J.

1. The appellants are aggrieved by the judgment and order dated 20th April, 2007 passed by the High Court of Judicature at Bombay in Criminal Appeal No.533 of 1990 whereby they have been convicted under

Sections 147, 149, 302 read with Sections 149, 324 and 326 of the Indian Penal Code

and sentenced to undergo imprisonment for life, apart from other lesser sentences which are to run concurrently and payment of fine, setting aside their acquittal by the trial court.

2. Originally there were 16 accused namely:-

1) Bhagwan Jagannath Markad

2) Janardhan Rambhau Tate

3) Dada Sayyednoor Mulani

4) Sayyed Sayyadnoor Mulani

5) Sandipan Sakhara Koyale

6) Nivrutti Sakharam Koyale

7) Krishna Sakharam Koyale

8) Shailendra Sandipan Koyale

9) Chandrakant Shankar Markad

10) Babu Rama Berad

11) Balu Naradeo Berad

12) Manik Rama Berad

13) Pandurang Babu Arade

14) Sadashiv Shahu Arade

15) Kisan Rama Berad and

16) Appa Shabu Arade

3. The trial court acquitted all the accused. The High Court upheld acquittal of accused Nos. 8, 9, 12, 13, 14, 15 and 16.

4. Accused No.2 is reported to have died. Thus, eight appellants are before this Court. They are A1 Bhagwan Jagannath Markad; A3 Dada Sayyednoor Mulani; A4 Sayyed Sayyadnoor Mulani; A5 Sandipan Sakhara Koyale; A6 Nivrutti Sakharam Koyale; A7 Krishna Sakharam Koyale; A10 Babu Rama Berad and A11 Balu Naradeo Berad respectively.

5. According to the prosecution, one Bibhishan Vithoba Khadle has been murdered and six persons have been injured being Indubai, PW11 Dagadu Gopinath Koyale, PW18 Chaturbhuj Khade, PW15 Bibhishan Kshirsagar, Gopinath Mahadev Koyale and PW12 Kernath Koyale in the attack by the accused.

6. As per the prosecution version recorded in the FIR lodged by PW10 Satyabhama, her husband PW11 Dagadu Gopinath Koyale, father-in-law Gopinath Koyale, deceased Bibhishan Vithoba Khadle, PW18 Chaturbhuj Khade, PW15 Bibhishan Kshirsagar along with others were present in their house on the date of the occurrence on 13th November, 1988 at 12.00 noon when all the accused came there to attack her husband. Accused No.3 Dada Sayyednoor Mulani put the house on fire on account of which everyone came out. Accused Nos.1 and 2 Bhagwan Jagannath Markad and Janardhan Rambhau Tate attacked Dagadu with swords on hands, legs and knees. Accused No.3 Dada Sayyednoor had barchi. Accused No.4 Sayyed Sayyadnoor Mulani had knife. Accused No.5 Sandipan Sakharam Koyale had iron rods. Accused No.6 Nivrutti Sakharam Koyale had barchi. Accused No.7 Krishna Sakharam Koyale had axe. Accused No.10 and 11 Babu Rama Berad and Balu Naradeo Berad had axe. Accused No.8 Shailendra Sandipan Koyale had sticks. PW11 Dagadu fell down on account of beating and became unconscious. Accused No.3 Dada Sayyednoor, accused No.4 Sayyed Sayyadnoor Mulani, accused No.5 Sandipan Sakharam Koyale, accused No.6 Nivrutti Sakharam Koyale, accused No.7 Krishna Sakharam Koyale caused beating to the deceased Bibhishan Vithoba Khade. Accused Nos.1 and 2 Bhagwan Jagannath Markad and Janardhan Rambhau Tate also attacked deceased Bibhishan Vithoba Khadle. The accused then beat PW11 Dagadu Gopinath Koyale and PW18 Chaturbhuj Khade with sticks and swords. The occurrence was a result of the enmity on account of party faction in Panchayat and Co-operative Society elections.

7. In the statement before the court, apart from repeating above version, PW10 Satyabhama further stated that a bullock cart was arranged to carry injured Dagadu and the deceased Bibhishan Vithoba Khade upto the main road and thereafter they were carried in a jeep. On the way, the FIR was lodged at 5.30 p.m. and thereafter the injured and the deceased were taken to the PHC and then to the civil hospital. PW11 Dagadu remained in the hospital for three to four months and thereafter in private hospital for two to three months.

8. After registering the FIR, investigation was carried out and charge-sheet was submitted before the Court. The accused denied the charge. Accused No.5 Sandipan Sakharam, however, stated that he was called by Dagadu through deceased Bibhishan Vithoba Khade to his place where PW18 Chaturbhuj Khade and PW12 Kernath Koyale were also present. PW11 Dagadu told him that he should not contest the election. The said accused, however, replied that PW11 Dagadu had been Sarpanch for 10-12 years and thus, accused should be allowed to become Sarpanch. This led to inter se assault between PW11 Dagadu and deceased Bibhishan Vithoba Khade and the said accused was also assaulted by PW11 Dagadu.

9. The prosecution led evidence comprising of medical evidence, recovery of material objects, eye-witnesses and the investigation. We will make reference only to the relevant evidence on record. PW4 Dr. Shravan Gavhane conducted the post mortem on the body of the deceased and found seven injuries. Injury No.1 was on the head which was found to be fatal. Injuries Nos. 2 to 7 were said to be with hard and blunt object like sticks or swords. PW5 Dr. Dinesh Kumar examined the injured PW11 Dagadu and found 10 injuries which included eight incised wounds, two injuries on Gopinath Mahadev Koyale, one contused wound on PW18 Chaturbhuj Khade, three injuries on Murlidhar Yeshu Kshirsagar. He also found one incised wound on the right forearm of accused No.5 Sandipan Sakharam. He found two injuries on Bibhishan PW15.

10. The prosecution relied upon the eye witness account rendered by PW10 Satyabhama, PW11 Dagadu, PW15 Bibhishan Kshirsagar, PW18 Chaturbhuj Khade, PW12 Kernath Koyale. PW2 Shivaji Fuge, PW3 Yuvraj Koyale, PW7 Bhimrao and PW9 Bhimrao Dhavale are witnesses to the recovery in pursuance of the statements under Section 27 of the Evidence Act. The Chemical Analyser’s report was also produced about the blood group on some of the recovered articles.

11. The trial Court rejected the prosecution version inter alia for following reasons :