Case Note & Summary
The case arises from a political rivalry in Aundi village, Solapur district. The appellants, along with others, were tried for forming an unlawful assembly and committing the murder of one person and causing injuries to others. The trial court convicted five accused, but one died during the appeal. The High Court examined the evidence, including the dying declaration and testimony of interested witnesses. The court found the dying declaration unreliable and the witnesses partisan. The prosecution failed to prove the common object of the unlawful assembly. Consequently, the High Court allowed the appeal, set aside the conviction, and acquitted the remaining appellants.
Headnote
A) Criminal Law - Appreciation of Evidence - Unlawful Assembly - Common Object - Sections 147, 148, 149, 302, 323, 427, 452 IPC - The prosecution alleged that the appellants formed an unlawful assembly and committed murder and other offences due to political rivalry. The court held that the evidence of interested witnesses was unreliable and the prosecution failed to prove the common object of the assembly. The conviction was set aside and the appellants were acquitted. (Paras 1-30)
B) Criminal Law - Dying Declaration - Reliability - Section 32 of Indian Evidence Act, 1872 - The dying declaration of the deceased was found to be unreliable as it was not recorded in the presence of a magistrate and there were inconsistencies. The court held that the dying declaration could not be the sole basis for conviction. (Paras 15-20)
C) Criminal Law - Interested Witnesses - Credibility - The court held that the witnesses were highly interested and their testimony required corroboration. In the absence of independent witnesses, the conviction could not be sustained. (Paras 21-25)
Issue of Consideration
Whether the conviction of the appellants for offences under Sections 147, 148, 302, 323, 427, 452 read with Section 149 IPC is sustainable based on the evidence on record.
Final Decision
Appeal allowed. Conviction and sentence set aside. Appellants acquitted of all charges.
Law Points
- Appreciation of evidence
- Unlawful assembly
- Common object
- Section 149 IPC
- Dying declaration
- Interested witnesses
- Acquittal
Case Details
2010 LawText (BOM) (06) 64
Criminal Appeal No.154 of 1992
B.H. Marlapalle, A.A. Sayed
A. P. Mundargi with Niranjan Mundargi and Jaydeep Mane for appellants; J. P. Yagnik, APP for State
Kerappa Narayan Bhuse, Sanjay Vishnu Bhuse (deceased), Shankar Pandurang Padvalkar, Jeetendra Sanjay Bhuse, Sadhu Bhagwat Shinde
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Nature of Litigation
Criminal appeal against conviction for murder and other offences arising from political rivalry.
Remedy Sought
Appellants sought acquittal from the conviction and sentence imposed by the trial court.
Filing Reason
The appellants were convicted by the II Additional Sessions Judge, Solapur, for offences under Sections 147, 148, 302, 323, 427, 452 read with Section 149 IPC.
Previous Decisions
The trial court convicted accused nos.1,2,4,6 and 7 on 6/3/1992.
Issues
Whether the prosecution proved the existence of an unlawful assembly with a common object?
Whether the dying declaration and testimony of interested witnesses are reliable?
Whether the conviction under Section 302 read with Section 149 IPC is sustainable?
Submissions/Arguments
Appellants argued that the evidence of prosecution witnesses was unreliable and interested, and the dying declaration was not credible.
State argued that the evidence proved the common object and the dying declaration was trustworthy.
Ratio Decidendi
The prosecution failed to prove the common object of the unlawful assembly beyond reasonable doubt. The dying declaration and testimony of interested witnesses were unreliable and lacked corroboration. Hence, the conviction cannot be sustained.
Judgment Excerpts
The learned II Additional Sessions Judge at Solapur by his judgment and order dated 6/3/1992 was pleased to convict accused nos.1, 2, 4, 6 and 7 for the offences punishable under Sections 147 and 148 of IPC and Sections 302, 323, 427 and 452 each read with Section 149 of IPC and hence this appeal by the said five accused.
During the pendency of this appeal one of the appellants i.e. Shri Sanjay Vishnu Bhuse (accused no.2) died on 3/3/2000 and, therefore, the appeal stands abated qua the said accused and it survives for accused nos.1, 4, 6 and 7.
Procedural History
The trial court convicted the appellants on 6/3/1992. They filed Criminal Appeal No.154 of 1992 before the Bombay High Court. During the appeal, one appellant died, and the appeal abated as to him. The High Court heard the appeal and delivered judgment on 7/6/2010.
Acts & Sections
- Indian Penal Code, 1860 (IPC): 147, 148, 149, 302, 307, 323, 337, 427, 452
- Indian Evidence Act, 1872: 32
