Haribhau @ Bhausaheb Dinkar Kharuse & Anr. v. The State of Maharashtra

12. First, it was argued that Section 149 of the IPC requires proof of a common object among at least five or more persons. The prosecution’s own witnesses gave contradictory statements about whether accused no. 3/appellant no. 1 possessed a knife.PW-1 made inconsistent claims and admitted omissions in his earlier statements. No weapon was recovered from accused no. 3/appellant no. 1 and there was no evidence that he shared the intention to kill.

13. Since accused no. 5 remained acquitted and accused no. 3/appellant no. 1 was not proven guilty, only four persons could be said to have participated, which is below the minimum threshold of five members required under Section 141 of the IPC for constituting an unlawful assembly. Moreover, there were no specific allegations of assault by accused no. 4/appellant no. 2, further weakening the prosecution’s case.

14. Reliance was placed on Daya Kishan v. State of Haryana, (2010) 5 SCC 81 and Naresh v. State of Haryana, (2023) 10 SCC 134, where this Court held that mere presence in an unlawful assembly without participation or intent cannot attract liability under Section 149 of the IPC.

15. Secondly, learned counsel for the appellant no. 1 and 2 argued that the High Court exceeded its jurisdiction by overturning a plausible and well-reasoned acquittal. Relying upon Murugesan v. State, (2012) 10 SCC 383 (paras 32-34) and Siju Kurian v. State of Karnataka, (2023) detailed assessment of contradictions and witness credibility,the High Court’s interference was unwarranted.

16. Thirdly, it was submitted that the defence highlighted material discrepancies between the statements of PW-1 and PW-7 regarding the weapons used and the role of the accused persons. PW-7, one of the injured eyewitnesses, was in critical condition when his statement was recorded. The Trial Court observed that PW-7 was not medically fit to give a coherent account at that time, undermining the reliability of his testimony. Thus, these inconsistencies should have prevented the High Court from relying on these witnesses.

17. Lastly, it was submitted that the Trial Court had categorically held that there was no recovery from accused no. 3/appellant no. 1 and no evidence that he had assaulted anyone or even possessed a weapon. It found that the allegation that accused no. 3/appellant no. 1 held the deceased while others attacked was unsupported by evidence.

18. Thus, learned counsel for the appellant no. 1 and 2 contended that the Trial Court’s acquittal was based on a sound appreciation of evidence and contradictions in witness statements. The High Court ignored these crucial findings and erred in convicting appellant no. 1 and 2 without establishing their participation, intent or the existence of an unlawful assembly. Therefore, the impugned judgment is liable to be set aside and appellant no. 1 and 2 to be acquitted of all charges.

SUBMISSIONS ON BEHALF OF APPELLANT (ACCUSED NO. 6)

19. Learned counsel for the appellant (accused no. 6) submitted that the evidence on record does not establish that appellant was a member of an unlawful assembly sharing a common object under Section 149 of the IPC to commit murder. The prosecution itself admitted that appellant did not inflict any injury upon the deceased and the only allegation against him is of causing hurt to PW-7. Consequently, the finding of guilt under Section 302 read with Section 149 of the IPC is unsustainable and the High Court erred in reversing the wellreasoned acquittal by the Sessions Court. The evidence, at best, may indicate participation in an incident resulting in hurt, but not in a premeditated murder committed in furtherance of a common object.

20. It is further submitted that the incident in question occurred suddenly and without premeditation. The Sessions Court, after examining the evidence, particularly the testimony of PW-1, found material omissions and contradictions regarding the alleged possession of knives and the role of appellant. These omissions in the FIR and the witness’s admission that certain facts were not recorded clearly indicate that the alleged assault was a sudden incident, concluding within a short time. Such circumstances negate any inference of a shared common object to commit murder.

21. Moreover, appellant was not named in the FIR, which merely referred to unidentified pillion riders accompanying another accused on a motorcycle. The arrest and seizure proceedings are also doubtful, as the panch witness turned hostile and the search of appellant’s house was conducted even before his formal arrest, contrary to the procedure established under the CrPC. These irregularities severely undermine the credibility of the investigation and the prosecution’s case.

22. Further, the identification parade was conducted after an inordinate delay of 52 days and was procedurally flawed, as two accused persons were shown together in the same parade. The Sessions Court rightly found such identification unreliable. Reliance is placed on the principles laid down in Shivaji Sahabrao Bobde v. State of Maharashtra, (1973) 2 SCC 793, where this Court held that an accused must be proved guilty beyond all reasonable doubt and mere suspicion cannot form the basis of conviction.

23. Learned counsel for the appellant also relied on Chellappa v. State, (2020) 5 SCC 160 (paras 10 and 11), wherein it was held that when there exists doubt as to whether the accused shared the common intention to commit murder, the benefit of such doubt must go to the accused. Similarly, in M.C. Ali & Anr. v. State of Kerala, (2010) 4 SCC 573, this Court emphasized that if two views are reasonably possible, the appellate court should not interfere with the acquittal recorded by the trial court.

24. Thus, it is submitted that the impugned judgment is liable to be set aside and the judgment passed by the Sessions Court is to be restored.

SUBMISSIONS ON BEHALF OF RESPONDENT

25. Learned counsel for the respondent submitted that the conviction of the appellants was based on the consistent and credible ocular evidence of injured witnesses, duly corroborated by medical evidence and recoveries made at the instance of the accused persons. The High Court also relied on Section 149 of the IPC, holding that the prosecution had proved beyond reasonable doubt the presence, knowledge and participation of the appellants in the crime committed on 27.04.1999, resulting in the death of the deceased.

26. Section 149 of the IPC embodies the principle of vicarious liability, holding every member of an unlawful assembly responsible for offences committed in prosecution of its common object or for acts they knew were likely to be committed. Reliance was placed on Masalti v. State of U.P., AIR 1965 SC 202 and Lalji & Ors. v. State of U.P., (1989) 1 SCC 437, which clarifies that once it is established that an unlawful assembly existed and an offence was committed in pursuant of its common object, every member is equally culpable, irrespective of who inflicted the fatal act.

27. Applying this principle, learned counsel for the respondent contended that the appellants, by riding the motorbikes carrying coaccused persons armed with weapons to the crime scene, facilitated the commission of murder and thus shared the requisite knowledge and common object. The evidence on record, therefore, fully established that the appellants were members of the unlawful assembly at the relevant time and were rightly held guilty under Sections 302 and 307 read with Section 149 of the IPC.

28. Thus, learned counsel for the respondent submitted that in light of the evidence and settled legal principles, the present appeals are liable to be dismissed as they are devoid of merit.

ANALYSIS AND FINDINGS

29. We have heard learned counsel for the parties and perused the material available on record. At the outset, it is well settled that interference with an order of acquittal must be exercised with great caution. However, such interference is justified where the findings of the Trial Court are manifestly perverse, unreasonable or contrary to the evidence on record. In Chandrappa v. State of Karnataka, (2007) 4 SCC 415 (para 42), this Court held that an appellate court possesses full power to review, reappreciate and reconsider the evidence upon which the order of acquittal is founded and to reach its own conclusions if the view taken by the trial court is not reasonably sustainable.

30. Applying these principles to the present case, it is evident that the acquittal recorded by the Trial Court suffered from a fundamental misappreciation of evidence. The Trial Court overlooked the consistent and corroborated testimony of injured eyewitnesses and failed to appreciate the legal effect of the active participation of the appellants as members of an unlawful assembly. The High Court, in reversing the acquittal, has given cogent and well-reasoned findings based on a proper appraisal of the record. Evidence on Record

31. The prosecution examined PW-1, PW-7 and PW-9 as eyewitnesses, of whom PW-1 is the complainant, while PW-7 and PW-9 are injured witnesses.

32. The relevant paragraph of the deposition of PW-1 reads as under: “4. On 27.4.1999 … Bhausaheb Dinkar Kharuse came on his motor-cycle and Pandharinath Deoba Gholap and Maruti Ramchandra Gholap were sitting behind him on the motorcycle. The Rajendra Shira wale came on Bullet motor-cycle. Behind him two unknown persons were sitting on the said Bullet motor-cycle. I was knowing all these persons. The persons are present today in the Court. I can identify them in the Court. (The witness had gone near the dock of the accused where they are sitting.) He pointed his finger towards accd. No.1 and told that his name is Pandharinath Deoba Gholap. (I verified the same. He has identified correctly.) The witness pointed out the accused sitting at the second place from the accused No.1, and told that his name is Maruti Ramchandra Gholap.(I verified the same and found that he had correctly identified accused No.2.) the witness pointed the accused sitting at the third place and told his name as Bhausaheb Dinkar Kharuse. (I verified and found that he is accused No.3.) (The witness pointed out the finger to the accused sitting at fourth place and told his name that he is Rajendra Shirawale. (I verified and found that he is accused No.4.) I can identify those unknown persons who came on the Bullet motor-cycle of Rajendra Shirawale. (The witness has pointed out the accused Nos.[5] and 6.) Both the motor-cycles were stopped on the left side of my jeep.All the accused persons got down from the motor-cycles. The accused persons removed weapons from the diccies of their motor-cycles. The accused No.2 Maruti was possessing Sattur, the accused No.1 Pandharinath and accused Nos.[5] and 6 were possessing knives (Suri), accused Nos.[3] Bhausaheb and accd. No.4 Rajendra were possessing the knives. Accused No.3 Bhausaheb came near my jeep and he took off the key of my jeep. He gave first blow on my mouth. Thereafter, he immediately went behind the jeep. I saw black. All the accused were standing behind my jeep. They opened the rear side door of my jeep. They pulled Ankush Bhausaheb Gholap, Rajendra Maruti Gholap, Shivaji Sakharam Sanas and Gynaba Nagu Gholap on road from my jeep. The accused No.3 Bhausaheb was holding Ankush. Accused No.1 Pancharinath and No.2 Maruti assaulted Ankush on his stomach by Sattur and knife. Accused Nos.[1] and 2 also assaulted Ankush on his head, stomach, back, hand. The intestine of the Ankush was came out of his stomach. He fall on ground. The accused Nos.[1] and 2 and his campanions, the campanions were accused No.3 and 4 and unknown persons i.e. accused Nos.[5] and 6 went towards Rajendra Maruti Gholap and Shivaji Sakharam Sanas. They assaulted them with weapons. I was afraid and therefore, I got down from the jeep. The two unknown person came towards me.They are accused Nos. 5 and 6, before the Court. They came to assault me. I ran towards market. Those persons who assaulted us i.e. the accd. before the Court stated their motor-cycles and went away I case near my jeep.”

33. The relevant paragraph of the deposition of PW-7 reads as under:

stand. I asked his name and he told his name as Pandharinath Deoba Gholap. The witness pointed one of the accused and told his name as Maruti Ramchandra Gholap. I asked the name of the accused and he told his name as Maruti Ramchandra Gholap. He is accused No.2. The witness pointed one of the accused sitting in the dock and told his name as Haribhau alias Bhausaheb Dinkar Kharuse. The accused told his name as Haribhau Dinkar Kharuse. He is accused No.3. The witness pointed one of the accused sitting in the dock and told his name as Raju alias Rajendra Bhivrao Shirawale. I asked the name to the accd. and he told his name as Raju Bhivrao Shirawale. He is accused No.4. Then witness pointed his finger to one of the accused sitting in the dock that he is the same per who worn the red colour shirt on that day.I asked him his name. He told his name as Vitthal Baburao Shinde. He is accused No.5. The witness pointed his finger towards one of the accd. sitting in the dock and told his name Subhash Raghunath Pawar. I asked his name. He told him name Subhash Raghunath Pawar. I asked his name. He told his name Subhash Raghunath Pawar. He is accused No.6. The motor-cycles were stopped on the left side of the jeep. All the accused down from the motor-cycles. The accused persons removed the weapons from the diccies of the motorcycles. The accused No.1 Maruti Gholap was holding Sattur in his hand. The accused No.1 Pandharinath Gholap was holding knife (suri). (The accused No.4 Raju Shirwale, accd. No.5 Vitthal Shinde i.e. the person who worn the red shirt, accd. No.6 Subhash Pawar/were holding knives. (Accd. No.3 Bhausaheb went near Sopan. He removed the keys jeep and gave fist below on the fact of Sopan Dagadu Gholap. (By that time, accused No.1 Pandharinath, No.2- Maruti, accd. No.4 Rajendra, accused No.5 Vitthal i.e. the person wearing red shirt and accused No.6 Subhash came behind the jeep. The accused No.3 Haribhau also came behind the jeep.They opened the backside door of the jeep. They dragged us out of the jeep. They dragged Ankush Gholap, Shivaji Sanas, and myself, out of the jeep. After dragging out of the jeep, accused No.3 Bhausaheb Kharuse caught hold Ankush. Thereafter, accused No.1 Pandharinath accused No.2 Maruti assaulted Ankush by Sattur and knife, Ankush was assaulted at his chest, stomack backside of the head and back. The intestine of the Ankush came out of the stomach and he fall, on ground. Thereafter, the accused started assaulting Shivaji Sanas. Shivaji Sanas rescued himself from the hands of the accused and ran away.Accused No.4 Raju caught hold of me. The accused No.6 Subhash inflicted two blows on my chest. Accused No. 2 Maruti inflicted blows on my back. I fall in front of the shop of Mhasawade by haltering. The persons who had worn red shirt, accused No.5 inflicted blows on my right hand.”

34. The relevant paragraph of the deposition of PW-9 reads as under: