Suresh Dattu Bhojane vs The State Of Maharashtra

2024 INSC 468 NON-REPORTABLE

IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.412 OF 2012

SURESH DATTU BHOJANE & ANR. …APPELLANTS

VERSUS

STATE OF MAHARASHTRA …RESPONDENT

With

CRIMINAL APPEAL NO. 651 OF 2013

SATISH RAMA BHOJANE …APPELLANT

VERSUS

THE STATE OF MAHARASHTRA …RESPONDENT

JUDGMENT

PANKAJ MITHAL, J.

1. Counsel for the parties were heard.

2. Under challenge in the present criminal appeals is the judgment

and order dated 18.10.2010 of High Court of Judicature at Signature Not Verified Digitally signed by Indu Marwah Bombay whereby it has dismissed the criminal appeals of Date: 2024.07.08 16:35:56 IST Reason:

appellants confirming the judgment and order of the Trial Court

1 dated 21.02.2002 convicting accused Nos. 1-6 including the

present appellants (i.e. A-3, A-5 & A-6) for offences punishable

under Sections 147, 148, 302 r/w 149 and 307 r/w 149 of IPC

and at the same time acquitting A-7 and A-8.

3. The Trial Court vide judgment and order dated 21.02.2002

acquitted accused Nos. 7 & 8, convicted the remaining accused

Nos. 1-6 and sentenced them for an offence under Section 302

r/w 149 of IPC with rigorous imprisonment for life and fine of

Rs. 100/- and in default, to suffer further imprisonment for

period of 1 week.

4. There are two separate appeals arising out of impugned

judgment and order dated 18.10.2010 which have been clubbed

together vide order of this Court dated 22.04.2013. Criminal

Appeal No. 412/2012 has been filed by accused Nos. 5 & 6 and

Criminal Appeal No. 651/2013 has been filed by accused No. 3.

Therefore, in the present appeals, we are concerned only with

conviction of accused No. 3 (Satish Rama Bhojane), accused No.

5 (Suresh Dattu Bhojane) and accused No. 6 (Anna @Anil

Maruti Bhojane).

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5. The allegations in the present appeals relate to a group assault

conducted by all accused persons with deadly weapons which

resulted in the death of one Mohan Mungase and injuries to his

brother Nandkumar Mungase (PW-5) and one Maruti Nakate

(PW-7).

6. The Trial Court records reveal that the prosecution case is, that

accused Nos. 2 and 3 are sons of Mama Bhojane and his wife

Chhaya (accused no. 8). Mama Bhojane was owner of one

country liquor shop at village Borale. He had entrusted the

country liquor shop to the accused No. 1. Later on, he entrusted

the country liquor shop to deceased Mohan Mungase and his

brother Nandkumar Mungase (PW-5) for the purpose of running

it. Hence, accused No.1 got annoyed over such entrustment of

the shop to deceased and his brother Nandkumar Mungase

(PW-5).

7. On 06.02.1999 at about 7:00 pm, the deceased Mohan

Mungase, his cousin Balu Mungase (PW-8), Anil Dhanve and

Yuvraj Mungase were sitting at shop of Shiva Chougule situated

at Village Borale. At that time accused Nos. 1, 3, 4, 5 and 6

3 came there and abused the deceased Mohan Mungase and

extended death threats. Thereafter, they went to the house of

Mama Bhojane.

8. The deceased Mohan Mungase in order to apprise Mama

Bhojane about the incident also went to his house along with

Balu Mungase, Anil Dhanve and Yuvraj Mungase. When he

entered the house, he found that Mama Bhojane was not there

and instead his wife (A-8) was there along with all the accused.

9. At that time, a telephonic information was received by

Nandkumar Mungase (PW-5) at his residence that his brother

deceased Mohan Mungase has picked up some quarrel at the

house of Mama Bhojane. On receiving the said information,

Nandkumar Mungase (PW-5) arrived at the house of Mama

Bhojane and he was followed by his sister Savita (PW-4). It is

pertinent to note here that Nandkumar Mungase (PW-5) was

married on 04.02.1999 i.e. 2 days earlier to the incident and,

therefore, his sister had come to attend the marriage and was

staying with them.

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10. Nandkumar Mungase (PW-5), upon reaching the house of Mama

Bhojane, saw his brother Mohan Mungase inside the house

along with all the 8 accused persons. Accused Nos. 1-4 were

armed with swords whereas accused No.7 had a scythe in his

hand. The accused No. 8 had chilli powder. Accused Nos. 1-8

together had attacked Mohan Mungase by swords and when he

tried to intervene, he too was assaulted with the swords but was

intervened by her sister Savita (PW-4) and was rescued. At that

very point of time, Maruti Nakate (PW-7) had also come to the

house and was also assaulted.

11. In the meantime, Anil Dhanve who had accompanied Mohan

Mungase to the house of Mama Bhojane, went to the police

outpost where police constable Mahadeo Metkari (PW-9) and

police constable Malkotgi were present. Upon being informed of

the quarrel, both of them proceeded to the house of Mama

Bhojane. When the police constables reached there, Savita

(PW-4) was fetching the injured Nandkumar Mungase (PW-5)

and Maruti Nakate (PW-7) out of the house. The accused Nos. 2

and 3, armed with swords, were still following the injured but

finding that the police have arrived, they closed the door from 5 inside. Thereafter, all the accused escaped the place of incident

through the roof of the house.

12. Police constable Mahadeo (PW-9) took the injured Nandkumar

Mungase (PW-5) and Maruti Nakate (PW-7) to the Mangalwedha

Police Station. Thereafter, they were sent to the Rural Hospital,

Mangalwedha from where they were referred to the Civil

Hospital, Solapur. Thereafter, Savita (PW-4) lodged the report at

2:15 am on the same night at Mangalwedha Police station.

Crime No. 10/99 under section 302 and 307 r/w 34 of the IPC

and under Section 135 of the Bombay Police Act was registered

on the basis of her report.

13. Charges (Exhibit 2) under Sections 148, 302 r/w. 149, 307 r/w.

149 of l.P.C. and Section 135 of the Bombay Police Act were

framed on 23.02.2000. The accused did not plead guilty to the

charges.

14. In all there were eight accused persons. They were as followed:

A-1 - Dhondappa

A-2 - Sachin

A-3 - Satish 6 A-4 - Manohar

A-5 - Suresh

A-6 - Anna Bhojane

A-7 - Kondabai Nakate

A-8 - Chaya Bhojane

15. It is pertinent to note that A-7 and A-8 were acquitted by the

Trial Court and there was no appeal filed against their acquittal

and as such the conviction remained as against A-1 to A-6. A-1

had died during the pendency of the appeal in the High Court

and his appeal stood abated. Thus, leaving A-2 to A-6 but in

appeals we are only concerned with three of them that is A-3,

A-5 & A-6.

16. The learned Trial Court held that the prosecution has succeeded

in establishing that the appellant accused Nos. 1-6, armed with

deadly weapons, had formed an unlawful assembly with

common object to commit murder of the deceased Mohan

Mungase and had injured two others.

17. The conviction is challenged herein mainly on the ground that

there was no active participation of the appellants i.e., A-5 & 7 A-6 visible from evidence on record so as to form a common

object which would warrant application of Section 149 of IPC.

18. The prosecution of the appellants hinges primarily on the

evidence of the informant, Savita (PW-4), sister of the deceased,

Nandkumar Mungase (PW-5), brother of the deceased and that

of the Constable Mahadeo (PW-9).

19. Nandkumar Mungase (PW-5) in his statement has clearly

described that he and the deceased Mohan Mungase were

looking after the Country Liquor Shop of Mama Bhojane for the

last 8 to 9 months before the date of incident. Earlier, the said

shop was managed by one of the accused Dhondappa (A-1). But

as the management was entrusted to him and his brother, he

got annoyed and used to abuse them. On the date of incident at

about 8.15 pm to 8.30 pm, he had received a telephonic call

which was picked up by his mother that there is a quarrel in

the house of Mama Bhojane. Therefore, he went running to the

said house and his sister Savita (PW-4) followed him. On

reaching the house he saw the accused Dhondappa (A-1),

Sachin (A-2), Satish (A-3) and Manohar (A-4), who were all

8 armed with swords, beating his brother Mohan Mungase. He

heard Dhondappa shouting not to leave Mohan Mungase and to

kill him. He then saw Dhondappa dealing a blow of the sword

on the head of his brother as a result of which he fell down.

Then the accused Sachin (A-2), Satish (A-3) and Manohar (A-4)

assaulted him with swords. He and his sister kept on shouting

not to beat him but in vain. The accused Dhondappa (A-1)

rather gave a sword blow to him on his right hand, the other

accused Sachin (A-2) and Satish (A-3) hit him on the right

shoulder and below the left side of the throat. Before they could

give any other blow to him, his sister Savita (PW-4) intervened

and at the same time one of his friends Maruti Nakate (PW-7)

also arrived. A sword blow was also given on the back of Maruti

Nakate (PW-7), then his sister Savita (PW-4) pushed him and

Maruti Nakate outside the house. Meanwhile, somebody

informed that the police had arrived. The accused persons on

hearing this closed the door of the house and escaped. The

police sent us to the Police Station from where we were referred

to the Government hospital Mangalwedha and finally to the Civil

Hospital Sholapur.

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20. There are no material contradictions in the testimony of the

aforesaid Nandkumar Mungase (PW-5) and his statement could

not be shaken even in the cross-examination. No doubt, he has

not assigned any specific role to A-5 and A-6, nonetheless, he

had repeatedly mentioned that 7 accused persons were present

at the scene of the crime which means there were three other

persons in addition to A-1 to A-4 who were armed with swords.

21. The informant Savita (PW-4) in her statement clearly mentioned

that though she was married outside the village, she had come

to the Village Borale to take care of her sick mother and for the

marriage of her brother Nandkumar Mungase (PW-5). Her

brother Mohan Mungase and Nandkumar Mungase used to run

Country Liquor Shop. On the date of the incident, while she was

cooking in the house, a telephonic call was received by her

mother which was handed over to his brother Nandkumar

Mungase (PW-5) who after attending the call immediately left for

the house of Mama Bhojane where her other brother Mohan

Mungase has picked up quarrel with some persons. She

followed his brother Nandkumar Mungase (PW-5) and came to

the house of Mama Bhojane. There was electric light in the 10 house and she saw the accused Dhondappa (A-1), Sachin (A-2),

Satish (A-3), Manohar (A-4), Anna Bhojane (A-6) Kondabai

Nakate (A-7) and the wife of Mama Bhojane i.e. Chaya Bhojane

(A-8). The accused Kondabai Nakate (A-7) was having scythe

whereas others were armed with swords. The accused Chaya

Bhonaje (A-8) was having chilli powder. She saw all the accused

assaulting Mohan Mungase with swords. She and her brother

Nandkumar Mungase kept on shouting not to assault him but

Satish (A-3) kept on assaulting her brother with the sword, even

Maruti Nakate (PW-7) who came and tried to intervene was not

spared and was hit in the back. She saw the accused climbing

staircase running out from the backside of the house. The

injured were taken to the Police Station and then to hospital in

a jeep and she lodged the report at the Police Station. Her

evidence could not be dislodged through cross-examination,

rather it supported the prosecution version as also the

statement of his brother Nandkumar Mungase (PW-5).

22. The police constable Mahadeo (PW-9) accompanied by constable

Malkotgi reached the place of occurrence of the crime on

receiving information of the quarrel from one Anil Dhanve of the 11 Village Borale. When he reached, there was a crowd opposite to

the house. He saw two men and a woman coming out of the

house. The accused Sachin (A-2) and Satish (A-3) were at the

door of the house, ready to assault these two men who on seeing

the police closed the door. He saw Mohan Mungase lying in the

pool of blood inside the house through the gap between the two

doors. He saw accused Dhondappa (A-1), Sachin (A-2), Satish

(A-3) and Manohar (A-4) inside the house armed with swords

and Kondabai (A-7) armed with scythe. Then he saw the

accused running away by jumping over roof of the house.

Nandkumar Mungase (PW-5) had sustained bleeding injuries on

his right hand and the neck. Maruti Nakate (PW-7) was also

injured in the back. Both the injured were taken to hospital by

the people. He i.e. constable Mahadeo (PW-9) and constable

Malkotgi did not go with them to the hospital but went to the

police out post which is ½ km. away from the place of crime.

23. A reading of the statement of Constable Mahadeo (PW-9) also

reveals the same story as narrated by Nandkumar Mungase

(PW-5) and Savita (PW-4). There appears to be no direct conflict

between his statement and that of other two material witnesses. 12

24. One another eye-witness Balu Mungase (PW-8) though had

turned hostile, but has repeated the same story that the

accused persons were armed with swords and that Savita (PW-

4) took Nandkumar Mungase (PW-5) and Maruti Nakate (PW-7)

outside the house. Both of them had sustained injuries;

Nandkumar Mungase on his hand and neck and Maruti Nakate

on his back.

25. In view of the aforesaid testimony of the eye-witnesses, the

courts below have rightly held that the deceased Mohan

Mungase was killed by the accused persons on the fateful day

in the house of Mama Bhojane.

26. The only point which arises for consideration is whether in the

facts and circumstances of the case, the accused A-5 and A-6

could also be convicted as they were not alleged to have been

armed with any weapon and have not been assigned any specific

role.

27. The aforesaid accused persons may not be armed and may not

have been assigned any specific role but nonetheless their

presence at the scene of the crime along with other accused

13 persons is duly established. They were held to be part of the

unlawful assembly with common object. The evidence of

Nandkumar Mungase (PW-5) proves the presence of Suresh (A-

5) and Anna (A-6). He has also stated that they were armed with

swords at the material time. They were likely to strike him with

sword but was timely saved by Savita (PW-4). The testimony of

Savita (PW-4) also speaks about the armed presence of both the

above accused and that they have gheraoed the deceased

Mohan Mungase. The evidence of both the above eye-witnesses

clearly proves that both of them were present at the scene of the

crime and were having the common object to kill Mohan

Mungase. All of them had joined together and have come to the

house of Mama Bhojane after a quarrel was picked up with the

deceased Mohan Mungase earlier to the incident at the shop of

Shiva Chougale situate in the village.

28. The accused A-5 and A-6 are undoubtedly part of unlawful

assembly and were having the common object viz the killing of

deceased Mohan Mungase and his brother Nandkumar

Mungase. They had a clear motive for the above purpose as the

country liquor shop which was settled in favour of A-1 was 14 subsequently entrusted to the deceased and his brother by the

owner Mama Bhojane. The accused A-5 and A-6 were present

even at the time when the deceased was threatened with dire

consequences while he was sitting on the platform of a shop just

before the fatal incident. They both were present in the house of

Mama Bhojane when the crime took place. The assembly of all

the accused persons in the house of Mama Bhojane with the

deadly weapons was apparently for the purposes of teaching a

lesson to the deceased and his brother to settle the score arising

from the entrustment of the country liquor shop. Therefore,

both A-5 and A-6 were certainly part of the unlawful assembly

having the common object and as such are guilty of the offence

as envisaged under Section 149 of the IPC.

29. The accused A-5 and A-6 have been charged under Section 149

IPC. Therefore, their presence with the other co-accused

amounted to an unlawful assembly which is sufficient for

conviction, even if they may have not actively participated in the

commission of the crime. It goes without saying that when the

15 charge is under Section 149, the presence of the accused as part

of the unlawful assembly itself is sufficient for conviction1.

30. In view of the aforesaid testimony of the eye-witnesses and the

concurrent findings of the facts recorded by the courts below

about the presence of A-5 and A-6 at the scene of the crime as

part of unlawful assembly and their active role in surrounding

the deceased with the common intention to kill him, we are of

the opinion that they cannot escape the conviction.

31. Besides the above, there is hardly any scope for interference

with the conviction and sentence of A-3. He has been assigned

an active role in the crime. All the eyewitness has categorically

stated about his presence and that he was armed with deadly

weapon, i.e., sword and that he had also wielded blows not only

upon the deceased but upon the injured persons. In the light of

the aforesaid evidence, there is no flaw in his conviction.

32. The submission that he has already undergone over 13 years of

incarceration and therefore some leniency be shown and his

sentence be reduced to that he had already undergone or

1 Yunis alias Kariya vs. State of Madhya Pradesh, AIR 2003 SC 539

16 alternatively he may be prematurely released has no substance.

The minimum sentence for committing murder is life

imprisonment and therefore is not liable to be reduced. In the

event he has already undergone sufficiently long incarceration

and is eligible for remission, he may or as a matter of fact even

the others are at liberty to apply for remission for premature

release in accordance with the policy of the State. In the event

any such application or representation is made by any of the

appellants, the same shall be considered most expeditiously by

the authority concerned in accordance with law and in the light

of the remission policy of the State in vogue.

33. The appeals lack merit and are dismissed with the above

observations.

……………………………….. J.

(ABHAY S. OKA)

……………………………….. J.

(PANKAJ MITHAL) NEW DELHI;

JULY 08, 2024.

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