JUDGMENT
Vishnu Sahai, J.
1. A perverse Judgment of acquittal dated 6-8-1990 passed by the learned Additional Sessions Judge, Greater Bombay in Sessions Case No. 259 of 1979, acquitting the respondents for offences punishable under sections 143 I.P.C., 144 I.P.C., 147 I.P.C., 148 I.P.C., 324 read with 149 I.P.C. (on two separate counts namely causing hurt to Anantya Shetty and Krishna Gauda), 323 read with 149 I.P.C., 337 read with 149 I.P.C., 436 read with 149 I.P.C., 450 I.P.C. and 395 I.P.C., has prompted the State of Maharashtra to file an appeal against acquittal under section 378(1) of Cr.P.C.
2. At this juncture, we may mention that the appeal against respondent Nos. 2 and 3 namely Pundalik Patil Kesarinath and Maruti Krishna Patil was dismissed by order dated 19-12-1983 passed by a Division Bench of this Court as no action had been taken to serve them. We may also mention that appeal against the respondent Nos. 1, 4 and 8 namely Joseph Mingel Koli, Ramakant Shankar Patil and Tanaji Devji Bhivande has been ordered to be abated since they are reported to be dead. Abatment orders in respect of respondent Ramakant Shankar Patil and Tanaji Devji Bhivande were passed by a Division Bench of this Court on 17-1-1994 and the same in respect of respondent Joseph Mingel Koli was passed by us today.
The short and long of the matter is that this appeal only survives against respondents Anthony Pascal Koli, Liladhar Sadashiv Patil, Bhalchandra Pandurang Wagh, Nilkanth Vishnu Patil, Dinanath Jivan Koli, Ganpat Narayan Patil, and Vishwanath Posha Koli.
3. We would first like to set out the factual matrix from which, this appeal arises:
Antaya Shetty, P.W. 1 was the proprietor of Maharashtra Lunch Home situate at Sewree Koliwada in Bombay. At a distance of 100 feet from it was a hotel called Vijay Cafe which stood in the name of his wife although he had the Power of Attorney from her qua it. Vijay Cafe was given to Antaya Shetty’s son-in-law Shambhu Shetty. However, he looked after its business.
On 23-4-1978, at about 10 p.m. Antaya Shetty came to Vijay Cafe from Maharashtra Lunch Home. Since it was a Sunday, Vijay Cafe was closed. Antaya Shetty entered it from the rear side. He saw that the articles purchased from the market that day were lying scattered in the kitchen. He went in the room in which there was a counter. In that room, there was a window from which one could see things on the road. That window was open and had wire-mesh. From it, he saw that the respondent Joseph Koli (hereinafter referred to as Joseph also) and eleven other respondents were on the road. Joseph started abusing him in filthy language. When he enquired from him as to what wrong he had committed, Joseph replied that he was trying to get him externed. Joseph asked him to come out and threatened to finish him. He refused to come out. Thereupon, Joseph shouted “Boys, stone the hotel, break it and take him out.” On that, the eleven other respondents who were henchmen of Joseph started throwing stone and soda water bottles. Thereafter, door of the kitchen was broken and they threw lighted crackers (anarkalis) and lighted cloth balls inside the kitchen. Antaya Shetty urged them not to indulge in this vandalism. One cloth ball fell on his left arm. Cloth balls also fell on both of his legs. The consequence was that the said areas were burnt. The manager of the Vijay Cafe, Kumar Shetty P.W. 3 went to the counter to make a phone call to the police but, the telephone was dead. The wires had been cut by the respondents. As a consequence of the vandalism of the respondents, fire broke out in the kitchen. Its ceiling was burnt. Some waiters namely Ramesh Sapalikar, P.W. 4, Krishna Gauda P.W. 6, and Baburao Salunke P.W. 10 extinguished the fire. Out of them, Baburao and Krishna also received injuries. After committing the said acts of vandalism the respondents are alleged to have run away. In the meantime, fire-brigade with a police van and a police jeep arrived. The police took them out. It sent Antaya Shetty, Baburao and Krishna to K.E.M. Hospital for medical examination.
4. The injuries of Antaya Shetty P.W. 1, Krishna Shetty @ Krishna Gauda P.W. 6, and Baburao Salunke P.W. 10 were medically examined in the K.E.M. Hospital, by Dr. (Mrs.) Bhupali, immediately after the incident i.e. on the night of 23-4-1978. Since at the time of giving evidence, Dr. Bhupali had left KEM Hospital, and her exact address was not known, the injury reports of the said persons were proved by Dr. (Mrs.) Sarla Shah, P.W. 8.
On the person of Antaya Shetty, superficial burns over left forearm and superficial burn over the right and left foot were found. Burns were about 10 to 12%. In the injury report, (Exh. 19) it has been stated that they could be caused by a lighted ball.
On the person of Krishna Shetty, one lacerated wound 1/4″ x 1/2″ and skin deep was found. In the injury report (Exh. 20) it has been mentioned that it was attributable to broken glass.
On the person of Baburao Salunke, a minor abrasion over 2/3″ of left tibia was found. In the injury report (Exh. 21) it has been stated that it could be caused if one comes in contact with hard and blunt substance.
5. The F.I.R. of the incident was lodged by Antaya Shetty, P.W. 1 on 23-4-1978 at 11.05 p.m. at police station, Wadala. In the said F.I.R. the prosecution case as detailed in para 3 of this judgment, has been mentioned and the names of the 12 respondents are also mentioned. There is a categorical allegation in the F.I.R. that the complainant knew the respondent Joseph and the boys (remaining 11 respondents) since a long time. On the basis of the F.I.R., a case under sections 143, 144, 147, 148, 149, 324, 337, 395, 447, 436 and 457 I.P.C. was registered.
6. The investigation of the case was conducted by Abdul Karim Ibrahim Shaikh, P.W. 13, then attached as API to Wadala police station. He visited Vijay Cafe at 11.30 p.m. He saw the same in a damaged condition. The same night, he recorded statements of Krishna Gauda P.W. 6 and Baburao Salunkhe P.W. 10. He then called for police photographer and took photographs of the place of the incident. By 28-4-1978, the respondents were either arrested or had surrendered. On that date, he had the test identification of the respondents held. Only one witness P.W. 6, Krishna Gauda was sent. He identified them. Ultimately, after completing the investigation, he submitted a charge-sheet against the respondents on 29-11-1978.
7. It also appears that respondents Maruti Koli and Nilkanth Patil were medically examined. On 23-4-1978; the former had burns on left arm and left forearm and the latter had two lacerated wounds, one of the dimensions of 1/4″ x 1/4″ x skin deep over (R) zygomatic region and the other 1/2″ x 1/4″ skin deep over nose. Since these two respondents are dead; the appeal against them has been ordered to abate; and the defence is not one of the right of private defence and neither any contention to that effect has been made by learned Counsel for the respondents, we are not going deeper into their injuries.
8. The case was committed to the Court of Sessions in the usual manner. In the trial Court, the respondents were charged on eleven counts, namely 143 I.P.C., 144 I.P.C., 147 I.P.C., 148 I.P.C. 324 r/w 149 I.P.C. (two separate counts) 323 r/w 149 I.P.C., 337 r/w 149 I.P.C., 450 I.P.C. 436 r/w 149 I.P.C. and 395 I.P.C. To the said charges, they pleaded not guilty. During trial, in all, the prosecution examined as many as thirteen witnesses. Five out of them namely Antaya Shetty, Kumar Shetty, Ramesh Sapalikar, Krishna Gauda @ Krishna Shetty, and Baburao Salunke, P.Ws. 1, 3, 4, 6 and 10 respectively were examined as eye-witnesses. In defence, no witness was examined.
After recording the evidence, and hearing the learned Counsel for the parties, the learned trial Judge passed the impugned judgment thereby acquitting the respondents on all the counts.
A perusal of the paragraph 12 of the impugned Judgment would show that the learned trial Judge had formulated four points for determination to which he also gave the answers in the said paragraph. In our view, for the disposal of this appeal, it is necessary to reproduce paragraph 12. The said paragraph reads thus :—
“Points for determination :
1. Whether the proseuction proves that at or between 10 p.m. and 10.30 p.m. on 23-4-1978 at Vijay Cafe, Sewree Koliwada, Bombay, there was an unlawful assembly of some persons, the common object of which was to commit the offences of rioting, causing hurt, dacoity, house breaking, house tresspass, mischief by fire with intent to destroy Vijay Cafe?
2. Whether the prosecution proves that on the said date and time, the members of the assembly were armed with deadly weapons, namely stones, bottles and other misiles, lighted cloth balls, fire crackers?
3. Whether the prosecution proves that the accused were the members of the said unlawful assembly and if not, whether there were some of them and if so, whom?
4. What order ?
My answers are as follows :
1. In the affirmative
2. In the affirmative
3. In the negative. The prosecution has failed to prove that all the accused or any of them were the members of the unlawful assembly.
4. The accused are entitled to an order of acquittal since the identity of the accused has not been established.”
A persual of paragraph 12 and other portions of the impugned judgment would show that the order of acquittal of the respondents is primarily founded on the fact that the identity of the respondents has not been established.
It is, this acquittal of the respondents which is taken offence to by the State of Maharashtra, which has filed the present appeal challenging it.
9. We have heard Mr. R.P. Behere, Additional Public Prosecutor for the State of Maharashtra-appellant and Mr. Raja Thakare, for respondents. We have also perused the depositions of the prosecution witnesses; the material Exhibits tendered and proved by the prosecution, the statements of the respondents recorded under section 313 Cr.P.C. and the impugned judgment. After giving our thoughtful consideration to the matter, we have not the least doubt that the impugned order of acquittal of the respondents is manifestly perverse and deserves to be set aside.
10. Before reaching the conclusion that the acquittal of the respondents deserves to be reversed, we have borne in mind the norms laid down by the Judicial Committee of the Privy Council and the Apex Court which are to be followed by the Appellate Court before reversing a Judgment of acquittal. Although right from the decision of the Judicial Committee of the Privy Council, , Shivswarup v. King Emperor, to the present day, reported decisions are to the effect that the Code of Criminal Procedure draws no distinction between the powers of a Appellate Court, in an appeal against acquittal, from those in an appeal against conviction but, all the same they lay down that it should be slow to interfere with an order of acquittal. This is obviously so, as observed in (supra), on account of the general slowness of the Appellate Court to interfere with the order of acquittal passed by the trial Judge for he has had the advantage of watching the demeanour of witnesses during trial and further because the presumption of innocence of accused persons is strengthened and not weakened by an order of acquittal and the benefit of all doubt should go to the accused persons.
11. The norms which the Appellate Court today bears in mind before deciding as to whether it should interfere in an appeal against acquittal are those spelt out by the Apex Court in para 7 of its decision , State of Punjab v. Ajaib Singh. The said paragraph reads thus :—
“We agree that this Court is not precluded or the Court hearing the appeal against acquittal is not prevented from examining and reappreciating the evidence on record. But the duty of a Court hearing the appeal against acquittal in the first instance is to satisfy itself if the view taken by the acquitting Court was possible view, or not. And if the Court comes to the conclusion that it was not, it can on appreciation of evidence reverse the order.”
In the said decision, it was also observed that the Appellate Court would not interfere with an order of acquittal unless it is perverse or infirm or palpably erroneous.
In this connection, it would also be relevant to advert to the observations of Their Lordships of the Apex Court in paragraph 9 of the case , Sanwat Singh and others v. State of Rajasthan, which are to the effect that in an appeal against acquittal, the Appellate Court has the undoubted power to review the entire evidence and to come to its own conclusion but, in doing so, it should not only consider every matter on record having a bearing on the questions of fact and the reasons given by the Court below in support of its order of acquittal but, should express the reasons in its judgment which led it to hold that the acquittal was not justified.
12. It is in the background of the legal position spelt out in the preceding paragraph that we have gone through the impugned judgment and the evidence on record. We are squarely satisfied that not only the view of acquittal of the respondents could not have been possibly taken by the Court below but, it is also a patently perverse view and the impugned order of acquittal is clearly erroneous and has been recorded on the most flimsy grounds. But, before we give our reasons as to why we so stigmatise the impugned judgment, we would like to point out as to why in our judgment, the prosecution has proved its case beyond all reasonable doubt and the view of acquittal could not have been possibly taken by the learned trial Judge.
13. We may straight away point out that although five eye witnesses were examined by the prosecution but, the evidence of two of them namely Antaya Shetty P.W. 1 and Kumar Shetty P.W. 3, inspires implicit confidence and fixes the identity of the respondents beyond all reasonable doubt.
Out of the other three eye witnesses, we are ignoring the evidence of witnesses Krishna Gauda P.W. 6 and Baburao Salunke P.W. 10 because their evidence does not legally incriminate the respondents. None of them name the respondents. As a matter of fact, Baburao Salunke was not even sent to the identification parade of the respondents. Krishna Gauda was sent but, we find that the evidence of the Special Executive Magistrate S.K. Pawar P.W. 7, who conducted the identification is that it took place in the verandah and could be viewed by others from outside. We also find that the evidence of Krishna Gauda is that P.W. 13 API Abdul Karim Ibrahim Shaikh, the Investigating Officer was sitting with the Special Executive Magistrate when he was asked to identify the suspects. Hence, no reliance can be placed on this evidence. We are also ignoring the evidence of Ramesh Sapalikar P.W. 4 because he had made two conflicting statements on two successive days. On the first day, he faithfully described the incident and named all the respondents but on the second day, he resiled from his earlier statement and stated that he had not seen the respondents throwing stones and crackers. We feel that it is always safe to ignore the evidence of such a witness.
14. Since evidence has to be weighed and not counted, there can be no dispute that if the evidence of P.W. 1 Antaya Shetty and P.W. 3 Kumar Shetty inspires implicit confidence, it can form the sole basis for reversing the impugned Judgment. It is on the basis of the averments contained in their examination-in-chief that we have set out the prosecution story in paragraph 3. No purpose would be served by repeating the same in entirety. In short, these witnesses have stated that on the date, time and place mentioned by the prosecution, the respondent Joseph Koli along with the eleven other respondents, came to Vijay Cafe. At that time, Antaya Shetty P.W. 1 was there. Joseph told him that he was trying to get him externed and shouted, ‘Boys stone the hotel, break it and take him out.” Thereupon, the respondents hurled stones and soda water bottles, broke open the door of the kitchen and threw lighted crackers and lighted cloth balls inside the kitchen. Some cloth balls struck Antaya Shetty, Baburao Salunke and Krishna Shetty were also injured. The said account given by these witnesses is corroborated by the nature of the injuries found on the person of Antaya and the other two injured and also the findings noted by the Investigating Officer in the panchanama of the scene of offence.
In the earlier part of our judgment, we have mentioned the injuries sustained by the victims and their perusal shows that injuries attributable to cloth balls, were found on the person of Antaya Shetty, Krishna Shetty’s and Baburao Salunke’s injuries also corroborate the account of these eye-witnesses and their bare perusal shows that they could be caused by stones.
The panchanama of the scene of offence also corroborates the ocular account. Its perusal shows that stones and broken pieces of Anarkalis were lying on the floor of the kitchen, glass window panes were broken in the kitchen and at the delivery counter in the kitchen, there were pieces of broken glasses and broken pieces of earthern pots. In the other part of the kitchen three big stones weighing roughly 5 kgs and 4 kgs were also found lying, wooden planks were broken, rice, masala-packets, salt, utensils containing dal, sambhar, and rice were scattered and the ceiling was burnt.
We may emphasise here that even the trial Judge in paragraphs 12 and 17 of the impugned judgment does not dispute about the factum and the manner of the incident. As mentioned earlier, he has held that the identity of the respondents has not been established. And this finding of his we find to be perverse.
15. The informant Antya Shetty and the manager of Vijay Cafe, Kumar Shetty have nominated the respondents in their statements in the trial Court. The informant has also nominated all the respondents in the F.I.R. (Exhibit 5) which from perusal of the evidence of the Police Officer who registered a case on its basis appears to have been lodged at 11.05 p.m. i.e. within half an hour of the incident taking place. He has mentioned in the F.I.R. that he is doing hotel business since 1941 in Sewree Koliwada (the area in which Vijay Cafe where the incident took place is situated) and knows Joseph Koli and the boys (respondent No. 2 to 11) since a long time. It is significant to point out that it was only natural for the informant to know the names of the respondents for they are also the reisdents of Sewree Koliwada. In our view, a perusal of the FIR shows that the identity of the respondents has been established beyond doubt.
16. The learned trial Judge in paragraph 21 of the impugned judgment has recorded a finding that the FIR is belated and the witnesses who are interested had enough time to fix the names of the respondents in it. He has held this on the basis of Antaya Shetty’s statement contained in paragraph 5 that he had reached Wadala Police Station at 1 a.m. and thereafter the FIR was lodged. Even assuming that it was lodged at 1 a.m. and not at 11.05 p.m. as alleged by the prosecution, it still is very prompt and there was no time for deliberations and consultations prior to its being lodged. The evidence is that after the incident, which had taken place at 10.30 p.m, Antaya Shetty was taken by the police to KEM Hospital. There he was medically examined and thereafter, he lodged the FIR at Police Station Wadala. Some time must have been taken in informing the police; in its arriving at Vijay Cafe; in Antaya Shetty going to KEM Hospital; and in his returning from there and in lodging the FIR. In such a situation, even assuming that the FIR was lodged at 1 a.m. i.e. about two and a half hours after the incident, it cannot be stigmatised as being belated and thereby providing sufficient opportunity for false nomination of the respondents.
17. The answer to the question whether the FIR in a given case has been lodged belatedly or not is always a question of fact and has to be answered bearing in mind the facts of the case in question and also the explanation furnished by the prosecution in case there is some delay in its being lodged. There can be no mathematical computation of the time taken in the lodging of the FIR. What the Court has to examine is whether the delay is inordinate and whether any cogent explanation is forthcoming in case it is so. Some delay in the lodging of the FIR is only natural and would not detract from the value to be attached to it. A little delay is sometimes bound to be there. When persons are placed in situations like the one in which Antaya Shetty must have been after the incident, no one forsees that slight delay in the lodging of the FIR would prove fatal to his case. There are graver things which seize his mind at that point of time. We are fortified in our view by the majority view of Their Lordships of the Apex Court in the case , Apren Joseph alias Current Kunjukunju and others…appellants v. The State of Kerala….respondent, wherein in paragraph 11, Their Lordships have observed thus :—
“First information report under section 154 is not even considered a substantive piece of evidence. It can only be used to corroborate or contradict the informant’s evidence in Court. But this information when recorded is the basis of the case set up by the informant. It is very useful if recorded before there is time and opportunity to embellish or before the informant’s memory fades. Undue unreasonable delay in lodging the FIR therefore, inevitably gives rise to suspicion which puts the Court on guard to look for the possible motive and the explanation for the delay and consider its effect on the trust-worthiness or otherwise of the prosecution version. In our opinion, no duration of time in the abstract can be fixed as reasonable for giving information of a crime to the police, the question of reasonable time being a matter for determination by the Court in each case. Mere delay in lodging the first information report with the police, is therefore not necessarily, as a matter of law, fatal to the prosecution. The effect of delay in doing so in the light of the plausibility of the explanation forthcoming for such delay accordingly must fall for consideration on all the facts and circumstances of a given case.”
18. In our view, the finding of the learned trial Judge that the FIR was belated and was the result of consultation with interested witnesses is perverse. The witnesses were neither related to each other nor partisan as observed by the learned trial Judge in paragraph 23 of the impugned judgment. This is a finding based on misreading of evidence. They had absolutely no reason to falsely implicate the respondents.
This brings us to a fanciful suggestion put forward on behalf of defence in the trial Court namely that the accused (respondents) belonged to koli community (fishermen). Since they wanted to fetch water for the purposes of drinking, and the same was not made available by P.W. 1 Antaya Shetty, they stopped visiting Vijay Cafe and therefore, Antaya Shetty falsely implicated them in order to teach them a lesson of their lives. We can only marvel at the originality of this suggestion which was denied by Antaya Shetty. To say the least, it would be absurdity personified that Antaya Shetty would have falsely implicated the respondents even had this been true.
19. Even assuming that Antaya Shetty and Kumar Shetty being the owner and Manager respectively of Vijay Cafe were interested witnesses, the law only requires that the evidence of such witnesses should be scrutinised with caution and not mechanically rejected.
20. Assurance is also forthcoming to the account of the eye witness Kumar Shetty by the circumstance that he was interrogated under section 161 Cr.P.C. at 3 a.m. on 24-4-1978 i.e. within four and a half hour of the incident. The value of prompt interrogation of a witness during investigation cannot be over emphasised because the same eliminates to a very large extent, the possibility of an adulterated account creeping in the testimony of a witness. This is all the more true here for Kumar Shetty had no reason to falsely implicate the respondents.
21. What impresses us most about these witnesses (Antaya Shetty and Kumar Shetty) is that they are wholly independent witnesses and had no axe to grind against the respondents. For no reason or rhyme, they would not have falsely implicated them. Since they were the owner and Manager respectively of Vijay Cafe, we have warned ourselves of scrutinising their evidence with caution and we dare say even thereafter we find their evidence to be wholly reliable and truthful. In our view, their evidence beyond any shadow of doubt, proves the involvement of the respondents in the incident.
The finding of the learned trial Judge that their evidence does not establish the identity of the respondents is a perverse one.
22. From a perusal of paragraph 24 of the Judgment, it appears that the trial Judge has been swayed by the submission that it was not possible for the witnesses to know the names of all the twelve respondents. In view of the reasons mentioned in paragraph 15 of our judgment, there is nothing improbable in the informant Antaya Shetty knowing the names of all the respondents. Similarly, there was nothing improbable in Kumar Shetty P.W. 3, knowing the names of all twelve respondents. He was the Manager of Vijay Cafe, where the incident took place since three years prior to the incident and there is nothing unnatural in his knowing the names of the respondents who lived in Sewree Koliwada, where the incident took place. It might be that they may have been visiting Vijay Cafe prior to the incident and hence Kumar Shetty came to know their names. During cross-examination, no question was put to Kumar Shetty as to how he came to know their names and in the absence of the same, this submission was not open to the defence counsel in the trial Court.
23. In our view, the impugned order of acquittal is founded on a perverse judicial approach and has to be set aside. It cannot be said that the view of acquittal was a possible view. To repeat it was a wholly perverse view.
24. The question which remain to be answered are :—
(i) What offences are made out against the respondents Anthony Koli, Liladhar Patil, Bhalchandra Wagh, Nilkanth Patil, Dinanth Koli, Ganpat Patil and Vishwanath Koli; and
(ii) The quantum of sentence to be imposed on these respondents.
25. In the trial Court, these respondents were charged under sections 143, 144, 147, 148, 324 read with 149 (two separate counts for causing hurt to Antaya Shetty and Krishna Gauda) 323 read with 149, 337 read with 149, 436 read with 149, 395 and 450 of Indian Penal Code. In our view, the charges under sections 144, 148, 395 and 450 I.P.C. are not brought home against the respondents and their acquittal on the said counts has to be confirmed by us. We however are squarely satisfied that the remaining charges have been proved beyond reasonable doubt and the respondents deserve to be punished in respect of them.
26. We now, propose giving our reasons for arriving at the view mentioned in paragraph 25.
27. In our view, charges under sections 144, 148, 395 and 450 I.P.C. are not proved for the reasons mentioned hereinafter.
28. Sections 144 and 148 of the Indian Penal Code read thus :
“Section 144 : Jointing unlawful assembly armed with deadly weapon—Whoever, being armed with any deadly weapon or with anything which used as a weapon of offence, is likely to cause death, is a member of an unlawful assembly shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both.”
“Section 148 : Rioting, armed with deadly weapon—Whoever is guilty of rioting, being armed with a deadly weapon or with anything which, used as a weapon of offence, is likely to cause death, shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both.”
A perusal of the said sections would show that before an offence comes within their ambit, prosecution has to establish that the person sought to be punished under them was either armed with a deadly weapon or with anything, which used as a weapon of offence is likely to cause death. In other words, the liability under the said sections is individual and not constructive. In the instant case, there is no evidence to indicate as to which of the respondents was armed with a deadly weapon or with anything which used as a weapon of offence is likely to cause death. There is only a general allegation in the evidence of the eye-witnesses that the respondents threw stones, soda-water bottles, lighted crackers and lighted cloth balls. But a general allegation like the one in the present case is not sufficient to make a person liable under sections 144 and 148 I.P.C. Hence, the acquittal of these respondents for offences under section 144 and 148 I.P.C. is confirmed.
29. This brings to the charge of 395 I.P.C. This also in our judgment is not established. Section 391 I.P.C. defines dacoity thus :
“Dacoity : When five or more persons conjointly commit or attempt to commit a robbery, or where the whole number of persons conjointly committing or attempting to commit a robbery, and persons present and aiding such commission or attempt, amount to five or more, every person so committing, attempting or aiding is said to commit ‘dacoity’.”
A perusal of the said section would show that when robbery is either committed or an attempt to commit it is made by five or more persons then all such persons and also such persons, who are present and aiding in its commission or in an attempt to commit it, would commit the offence of dacoity.
This, in turn takes us to section 390 I.P.C. wherein robbery is defined.
30. “Section 390 I.P.C. reads thus :
390. Robbery—In all robbery there is either theft or extortion.
When theft is robbery—Theft is ‘robbery’ if, in order to the committing of the theft, or in committing the theft, or in carrying away or attempting to carry away property obtained by the theft, the offender, for that end, voluntarily causes or attempts to cause to any person death or hurt or wrongful restraint, or fear of instant death or of instant hurt, or of instant wrongful restraint.
When extortion is robbery—Extortion is ‘robbery’ if the offender, at the time of committing the extortion, is in the presence of the person put in fear, and commits the extortion by putting that person in fear of instant death, of instant hurt, or of instant wrongful restraint to that person or to some other person and, by so putting in fear, induces the person so put in fear then and there to deliver up the thing extorted.
Explanation—The offender is said to be present if he is sufficiently near to put the other person in fear of instant death, of instant hurt, or of instant wrongful restraint.”
A perusal of the section would show that either theft is robbery or extortion is robbery. Since in the prosecution case, which we have extensively set out in paragraph 3, there is not even a whisper of extortion. We are not analysing the provisions in section 390 I.P.C. pertaining to extortion amounting to robbery.
An analysis of section 390 I.P.C. would show that in order that theft may constitute robbery, prosecution has to establish :—
(a) if in order to the committing of theft;
or
(b) in committing the theft;
or
(c) in carrying away or attempting to carry away property obtained by theft;
(d) the offender for that end i.e. any of the ends contemplated by (a) to (c)
(e) voluntarily causes or attempts to cause to any person death or hurt or wrongful restraint or fear of instant death or of instant hurt or instant wrongful restraint.
In other words, theft would only be robbery if for any of the ends mentioned in (a) to (c) the offender voluntarily causes or attempts to cause to any person death or hurt or wrongful restraint or fear of instant death or of instant hurt or instant wrongful restraint.
If the end does not fall within (a) to (c) but, the offender still causes or attempts to cause to any person death or hurt or wrongful restraint or fear of instant death or of instant hurt or instant wrongful restraint, the offence would not be robbery.
We wish to emphasise that (a) or (b) or (c) have to be read conjunctively with (d) and (e). It is only when (a) or (b) or (c) co-exist with (d) and (e) or there is a nexus between any of them and (d) and (e) would theft amount to robbery.
In the instant case, there is no evidence that either in order to the committing of theft or in committing theft or in carrying away or in attempting to carry away property obtained by theft the respondents for that end voluntarily caused or attempted to cause to any person death or hurt or wrongful restraint or fear of instant death or of instant hurt or of instant wrongful restraint.
The evidence here is that respondent Joseph Koli was inimical to the informant Antaya Shetty because he had a feeling that the latter was trying to get him externed and on account that he wanted that the hotel be destroyed and Antaya Shetty who was inside be brought out.
31. The nature of the common object of the unlawful assembly led by respondent Joseph Koli and of which the other respondents were members can be gauged by the call given by Joseph to the remaining respndents in terms “Boys stone the hotel, break it and take him out”. This is mentioned in the examination-in-chief (paragraph 4) of Antaya Shetty’s statement.
If during the prosecution of this common object, some amongst the respondents who could not be pin-pointed in evidence, apart from throwing stones, soda-water bottles, crackers, and lighted cloth balls inside Vijay Cafe, took away some items of grocery which were lying inside, the offence would not become dacoity. This is because, there is no direct nexus between the act of the respondents of throwing stones, soda water bottles, crackers and cloth balls inside Vijay Cafe with either (a) or (b) or (c) referred to in para 30. They do not co-exist in the instant case. They appear to be independent as per the evidence on record.
As a matter of fact, the evidence in respect of theft is also insufficient. P.W. 1 Antaya Shetty has not stated about it either in the FIR or in his statement in the trial Court. We only have the evidence of Kumar Shetty for it (see paragraph 5). Even he has not stated as to which of the respondents committed theft of the items of grocery.
32. In our view, no offence under section 395 I.P.C. is made out and we confirm the acquittal of the respondents on the said count.
33. The respondents would also have to be acquitted under section 450 I.P.C. Section 450 I.P.C. reads thus :—
“Whoever commits house-tresspass in order to the committing of any offence punishable with imprisonment for life, shall be punished with imprisonment of either description for a term not exceeding ten years, and shall also be liable to fine.”
On the evidence on record, the acts of the respondents would not fall within the ambit of section 450 I.P.C. for there is nothing to indicate that they committed house-tresspass as defined in section 442 I.P.C. Unless house tresspass as defined in section 442 I.P.C. is proved, there is no question of the offence falling within the ambit of section 450 I.P.C. The evidence on record does not show that the respondents entered inside the Vijay Cafe.
It may also be mentioned that this charge was not even pressed by the Public Prosecutor during trial. For the said reasons, we also acquit these respondents under section 450 I.P.C.
34. This brings us to the other charges namely those under section 143, 147, 324 read with 149 I.P.C. (on two separate counts one each in respect of Antaya Shetty and Krishna Gauda, P.W. 6) section 323 read with 149, 337 read with 149, and 436 read with 149 I.P.C. In our view, the said charges stand established. While the charge under section 143 I.P.C. pertains to membership of an unlawful assembly and that under section 147 I.P.C. pertains to rioting by a member of the unlawful assembly, the other charges are with the aid of section 149 I.P.C. which makes every member of an unlawful assembly vicariously liable for the acts done by others either in the prosecution of the common object of the unlawful assembly or such which the members of the unlawful assembly knew were likely to be committed.
35. Unlawful assembly has been defined in section 141 I.P.C. and Third of section 141 I.P.C. reads thus :—
“141. Unlawful assembly :
An assembly of five or more persons is designated an “unlawful assembly” if the common object of the persons composing that assembly is —
Third : To commit any mischief or criminal tressapass, or other offence, or …..”
The assembly of which the respondents mere members was undoubtedly an unlawful assembly for the prosecution case as set out in paragraph 3 would show that its object would fall within the ambit of third of section 141 I.P.C. These respondents are squarely guilty of the offence punishable under 143 I.P.C. for they were members of an unlawful assembly and would also be guilty of the offence punishable under section 147 I.P.C. for being members of an unlawful assembly, they were guilty of rioting.
36. The other charges namely 324 read with 149 (two separate counts, one each in respect of Antaya Shetty, P.W. 1 and Krishna Gauda P.W. 6) 323 read with 149 I.P.C., 337 read with 149 I.P.C. and 436 read with 149 I.P.C. are also established.
“Section 149 I.P.C. reads thus : Every member of unlawful assembly guilty of offence committed in prosecution of common object—If an offence is committed by any member of an unlawful assembly in prosecution of the common object of that assembly, or such as the members of that assembly knew to be likely to be committed in prosecution of that object, every person who at the time of the committing of that offence, is a member of the same assembly, is guilty of that offence.”
From the facts found in the instant case, there can be absolutely no manner of doubt that all the respondents must have had the knowledge contemplated by the second part of section 149 I.P.C. that by their acts of throwing stones, soda water bottles, crackers and cloth balls inside the Vijay Cafe they were likely to :
(a) cause hurt within terms of sections 324 I.P.C. and 323 I.P.C. to those who were inside;
(b) that they were likely to cause hurt to those who were inside within the terms of section 337 I.P.C.; and
(c) they were likely to cause mischief by fire and explosive substance inside Vijay Cafe within terms of section 436 I.P.C.
Hence, they would be guilty of the said offences with the aid of section 149 I.P.C.
It is well settled that once a membership of an unlawful assembly is established, it is not incumbent on the prosecution to establish whether any specific overt act has been assigned, to any accused. Mere membership of the unlawful assembly is sufficient.
We are fortified in our view by the decision of the Apex Court , Lalji and others appellants v. State of U.P. respondent, wherein in para 9, Their Lordships have observed thus :—
“Once the case of a person falls within the ingredients of the section the question that he did nothing with his own hands would be immaterial. He cannot put forward the defence that he did not with his own hands commit the offence committed in prosecution of the common object of the unlawful assembly or such as members of the assembly knew to be likely to the committed in prosecution of that object.”
In para 35, we have observed that the respondents were members of an unlawful assembly.
37. This brings us to the question as to what sentence should be imposed on the respondents Anthony Koli, Liladhar Patil, Bhalchandra Wagh, Nilkanth Patil, Dinanath Koli, Ganpat Patil and Vishwanath Koli for offences under sections 143, 147, 324 read with 149 (two separate counts, one in respect of causing injuries to Antaya Shetty and one in respect of causing injuries to Krishna Gauda) 323 read with 149, 436 read with 149 and 337 read with 149 I.P.C.
Our first reaction was not to show any leniency to the respondents because without any provocation in a very high handed and planned manner, they committed acts of vandalism, resulting in destruction of property of Antaya Shetty, injuries being caused to the three persons including Antaya Shetty and the kitchen of Vijay Cafe being damaged on account of the crackers (anarkalis) stones, cloth balls and soda water bottles being thrown by them. As a result of their acts, the kitchen of Vijay Cafe was also damaged by fire. However on deeper reflection of the matter, we came to the conclusion that the instant case does not call for a jail sentence and a setence of fine alone would meet the ends of justice. The reasons which have weighed with us in reaching this conclusion are set out hereinafter:
(i) The incident took place more than 18 years ago;
(ii) No specific overt acts have been assigned in the incident to any of the respondents;
(iii) The evidence is that the respondents were merely acting under the influence of respondent Joseph Koli. They have been described as his boys and the evidence is to the effect that on his exhortation to the effect “Boys, stone the hotel, break it and take him out.” They started hurling stones, soda water bottles, crackers and cloth balls inside Vijay Cafe;
(iv) Excepting respondent Ganpat Patil other respondents were young in years at the time of the incident and it appears that on account of their impressionable ages, they succumbed to the moral influence of respondent Joseph Koli, respondent Bhalchandra Wagh was aged about 28 years at the time of the incident, respondents Liladhar Patil and Vishwanath Koli were then aged about 25 years; respondents Antony Koli and Dinanath Koli were less than 20 years of age at the time; and respondent Nilkanth Patil was aged about 24 years at that time;
(v) The old age of the respondent Ganpat Patil. At the time of the incident, he was aged about 55 years and today, he is aged about 73 years;
(vi) The respondent Joseph Koli who was the principal accused and the architect of the whole show is already dead and the respondents are only his stooges; and
(vii) There is nothing to indicate that any of these respondents have bad antecedents or convictions to their discredit.
38. In our view, the ends of justice would be squarely satisfied if each of the respondents are sentenced in the manner stated hereinafter:
(a) Under section 143 I.P.C. to pay a fine of Rs. 500/- in default to undergo 1 month RI;
(b) Under section 147 I.P.C. to pay a fine of Rs. 500/- in default to undergo 1 month RI;
(c) Under section 324 read with 149 I.P.C. (for causing hurt to Antaya Shetty) to pay a fine of Rs. 1000/- in default to undergo 6 months RI;
(d) Under section 324 read with 149 I.P.C. (for causing hurt to Krishna Gauda @ Krishna Shetty) to pay a fine of Rs. 1000/- in default to undergo 6 months RI;
(e) Under section 323 read with 149 I.P.C. to pay a fine of Rs. 500/- in default to undergo 3 months RI;
(f) Under section 337 read with 149 I.P.C. to pay a fine of Rs. 1000/- in default to undergo 6 months RI; and
(g) Under section 436 read with 149 I.P.C. to pay a fine of Rs. 2500/- in default to unergo 2 years RI.
39. In the result, this appeal is allowed. The impugned Judgment of acquittal acquitting the respondents Antony Koli, Liladhar Patil, Bhalchandra Wagh, Nilkanth Patil, Dinanath Koli, Ganpat Patil, and Vishwanath Koli under sections 143, 147, 324 read with 149 I.P.C. (two separate counts) 323 read with 149, 337, read with 149, and 436 read with 149 I.P.C. is set aside. These respondents are found guilty for the said offences. They are sentenced in the manner stated hereinafter:
(a) Under section 143 I.P.C. to pay a fine of Rs. 500/- in default to undergo 1 month RI;
(b) Under section 147 I.P.C. to pay a fine of Rs. 500/- in default to undergo 1 month RI;
(c) Under section 324 read with 149 I.P.C. (for causing hurt to Antaya Shetty) to pay a fine of Rs. 1000/- in default to undergo 6 months RI;
(d) Under section 324 read with 149 I.P.C. (for causing hurt to Krishna Gauda @ Krishna Shetty) to pay a fine of Rs. 1000/- in default to undergo 6 months RI;
(e) Under section 323 read with 149 I.P.C. to pay a fine of Rs. 500/- in default to undergo 3 months RI;
(f) Under section 337 read with 149 I.P.C. to pay a fine of Rs. 1000/- in default to undergo 6 months RI; and
(g) Under section 436 read with 149 I.P.C. to pay a fine of Rs. 2500/- in default to undergo 2 years RI.
The respondents are given six months time from today to deposit the said fine in the trial Court. In case, they deposit the fine within the stipulated period of time, the whole of it i.e. Rs. 49,000/- (Rupees Forty nine thousand only) shall be paid as compensation to Antaya Shetty P.W. 1 and in case he is not alive, to his legal heirs. Immediately on the fine being deposited, the trial Court shall inform Antaya Shetty and in case he is not alive, his legal heirs, about this compensation.
In case these respondents do not pay the fine imposed by this Court, within the stipulated time, they shall be taken into custody forthwith to serve out the sentence imposed on them in default of its payment.
However, the acquittal of these respondents under sections 144, 148, 395 and 450 I.P.C. is confirmed.
Issuance of certified copy is expedited.
Before parting with this Judgment, we would be failing in our fairness, if we do not put on record the assistance which we have received from the counsel for the parties in disposal of this appeal. Inspite of the fact that the impugned Judgment was impossible to defend, Mr. Raja Thakare, learned Counsel for the respondents left no stone unturned to persuade us to accept that if did not deserve to be set aside. He certainly went down fighting.