Case Note & Summary
The appeals arose from a judgment and order dated 24 November 1998 passed by the Additional Sessions Judge, Greater Bombay in Sessions Case No.1362 of 1997, convicting the appellants under Sections 144, 148, 302 read with 149 of the Indian Penal Code, 1860. The prosecution case was that accused No.1 Kishor Tarkar, as Chief Promoter of Khapridevi Co-operative Housing Society, along with other accused, bore enmity towards deceased Santosh Iyre, who used to attend society meetings and oppose office bearers. On 14 July 1997 at about 9.15 p.m., while deceased Santosh was proceeding towards Datta Mandir and his brother P.W.1-Pravin Iyre was following, a mob of accused and others armed with deadly weapons approached. The deceased tried to flee but was chased, nabbed near Shinde Saloon, and assaulted by absconding accused Vinayak with a chopper, accused No.3 Vijay Karekar with a suri on the leg and neck, accused No.2 Satish Amberkar with a suri on the right shoulder, and accused No.1 Kishor Tarkar with a chopper on the right shoulder. Other mob members assaulted with hockey sticks and fists. The deceased escaped into the house of Vijay Ghadi but was dragged out and further assaulted; the accused escaped towards the hill side. Just before this, the mob had also injured Mangesh Varpe (P.W.7). The deceased and injured were taken to KEM Hospital, where deceased was declared brought dead. An F.I.R. was registered, spot panchanama and seizure of a damaged Maruti car, glass pieces, stones, roof tiles, blood and hair were done. Pursuant to voluntary statements, a suri was recovered from accused No.3 and a hockey stick from accused No.4. A Test Identification Parade was held on 23 August 1997, in which P.W.1, P.W.3 and one Raju Karangutkar identified accused No.5 and 6. After investigation, charge-sheet was filed in the 13th Court of Metropolitan Magistrate at Dadar and committed to Sessions Court. Charge was framed under Sections 144, 148, 302 read with 149, in the alternative 302 read with 34, 452 read with 149/34, and 427 read with 149/34 IPC. The accused pleaded not guilty. Thirteen witnesses were examined. The trial court convicted under Sections 144, 148, 302 read with 149 and acquitted under Sections 452 and 427. In appeal, the appellants' counsel argued that the trial court gravely erred in ignoring material omissions and contradictions in the evidence of alleged eyewitnesses, particularly regarding the weapons held by each accused, which went to the root of the prosecution case. The State supported the conviction. The High Court noted that there were two eyewitnesses, P.W.1 Pravin Iyre and P.W.3 Santosh Yende, and another injured eyewitness P.W.7 Mangesh Varpe. The court observed that there was no dispute that deceased Santosh died a homicidal death, as evident from the autopsy conducted by P.W.2 Dr. Vijay Kelvekar, who noted multiple incised stab wounds on the body. The extracted portion of the judgment ends before the High Court's final analysis and decision; therefore, the ultimate holding and reasons are not available in the provided text.
Headnote
A) Criminal Law - Unlawful Assembly and Rioting - Sections 144, 148, 149 of Indian Penal Code, 1860 - Trial court convicted appellants for rioting and being members of unlawful assembly armed with deadly weapons in a murder case - Prosecution alleged mob assault on deceased Santosh Iyre and injured Mangesh Varpe; accused challenged conviction on ground of material omissions and contradictions in eyewitness testimony regarding weapons - Held that prosecution case relied on eyewitnesses and recovery of weapons; final decision on appeal not stated in extracted text (Paras 1-8, 16). B) Criminal Law - Murder with Common Object - Sections 302, 149 of Indian Penal Code, 1860 - Conviction under section 302 read with 149 recorded by trial court for fatal assault on deceased Santosh Iyre - Court noted homicidal death proved by autopsy and presence of three eyewitnesses including injured - Held that appeal raised issues of identification and contradictions in weapons held, which go to root of prosecution case (Paras 16-19).
Issue of Consideration
Whether the prosecution proved that the accused formed an unlawful assembly with common object to commit murder of Santosh Iyre under sections 144, 148 and 149 IPC; Whether the testimonies of eyewitnesses P.W.1, P.W.3 and injured P.W.7 contained material omissions and contradictions regarding the weapons held by each accused, affecting reliability of identification; Whether the conviction under section 302 read with 149 IPC was sustainable against all appellants on the basis of evidence of mob assault and recovered weapons.
Law Points
- Unlawful assembly
- rioting
- common object
- murder
- test identification parade
- eyewitness reliability
- omissions and contradictions
- recovery under Section 27 Evidence Act
- homicidal death proved by autopsy
