Ganesh Narayan Waman v. The State of Maharashtra

*1* apeal152a161o05IN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADCRIMINAL APPEAL NO.152 OF 20051. Ganesh Narayan Waman Age : 23 yrs, Occ : Pvt. Service, R/o Warul Temple, Nalegaon, Ahmednagar.2. Bhausaheb Dattatraya AgarkarAge : 20 yrs, Occ : Education,R/o Datrange Mala, Ahmednagar.3.Shrikant Uttamrao Misal, Age : 21 years, Occ : Education,R/o Bagroja, HUDCO Colony, Ahmednagar.4.Vijay s/o Bhimraj Chitale, Age : 30 years, Occ : Service,R/o Nalegaon, Ahmednagar.5.Ajay s/o Bhimraj Chitale, Age : 28 yrs, Occ : Service,R/o Nalegaon, Ahmednagar....Appellants/ accused- Versus -The State of Maharashtra....Respondent/ State.ANDCRIMINAL APPEAL NO.161 OF 2005Satish @ Baba s/o Bhagwan Sanap, Age : 25 years, Occupation : Education,R/o C/o Government Quarter No.14,In the premises of PWD Rest House No.2,Aurangabad Road, Ahmednagar. *2* apeal152a161o05...Appellant/ accused No.6- Versus -The State of Maharashtra....Respondent/ State.…Shri Satej S. Jadhav, Advocate for the appellants/ accused inCriminal Appeal No.152/2005.Shri S.S. Jadhavar, Advocate for the appellant/ accused No.6 inCriminal Appeal No.161/2005.Shri C.V. Bhadane, APP for the respondent/ State.… CORAM : SUSHIL M. GHODESWAR, J.DATE : 24 November 2025ORAL JUDGMENT :-1.By these two appeals filed under Section 374(2) ofthe Code of Criminal Procedure (for short, ‘the CrPC’), theappellants/ accused Nos.1 to 6 challenge the judgment and orderdated 01.03.2005 passed by the learned 4th Ad-hoc AdditionalSessions Judge, Ahmednagar, in Sessions Case No.194/2004 bywhich, the appellants/ original accused Nos.1 to 6 have beenconvicted for offences punishable under Sections 143, 147, 148,332, 333, 337, 353, 325 r/w 149 of the Indian Penal Code, 1860(for short, ‘the IPC’) and they are sentenced as under:- *3* apeal152a161o05(a)For the offence punishable under Section 143 of theIPC, the appellants are sentenced to suffer rigorous imprisonmentfor six months and to pay fine of Rs.500/- each, in default ofpayment of fine, they are directed to suffer further simpleimprisonment for one month each. (b)For the offence punishable under Section 147 of theIPC, the appellants are sentenced to suffer rigorous imprisonmentfor one year and to pay fine of Rs.500/- each and in default, tosuffer further simple imprisonment for one month each. (c)For the offence punishable under Section 148 of theIPC, the appellants are sentenced to suffer rigorous imprisonmentfor 18 months and to pay fine of Rs.600/- each and in default, tosuffer further simple imprisonment for one month each.(d)For the offence punishable under Section 333 r/w149 of the IPC, the appellants are sentenced to suffer rigorousimprisonment for three years and to pay fine of Rs.1000/- eachand in default, to suffer further simple imprisonment for twomonths.(e)The offences punishable under Sections 332, 353, *4* apeal152a161o05325 r/w 149 of the IPC and under Section 337 of the IPC, arecovered by the offence punishable under Sections 333 r/w 149 ofthe IPC, hence, no separate punishment is awarded for the saidoffences. (f)Substantive sentences are directed to runconcurrently. (g)The appellants are acquitted for the offencepunishable under Sections 295 r/w 149 of the IPC and Section135 r/w 37(1)((3) of the Bombay Police Act.2.The brief facts leading to filing of the presentappeals are as under:-(a)The prosecution case is that on 15.03.2003 at about01:30 am, the informant PSI Shinde (PW-1) lodged the FIRbearing crime No.76/2003 with the Kotwali Police Station, Ahmednagar, for the offences punishable under section 143, 147,148, 353, 295, 332, 333, 326 r.w. 149 of I.P.C. and under section135 r.w. 37 (1) (3) of Bombay Police Act. It was alleged that inthe year 2003, informant PSI Shinde was attached to KotwaliPolice Station, Ahmednagar alongwith HC Shaikh Akbar, PC *5* apeal152a161o05Dhole, PW 2 Dhavale, Sherkar, Pavashe and HC Sayyad attachedto L.C.B. Ahmednagar. On 14/3/2003, there was Moharam andthere was procession thereof alongwith two Sawari fromAhmednagar city. Hence, from 12.00 noon, till immersion ofSawari and end of procession, the police bandobast was deployedon both sides of procession in parallel manner, so as to haveeffective check on rioters and mobbers. Accordingly, theprocession had started at 12.00 noon and, at 7.30 pm, it wasreached at Delhi-gate. Therefore, above said police party hadproceeded towards Nilkranti chowk where immersion of theprocession and Sawari was to be performed. At that time, frompassersby, said police party came to know that at Delhi-gate, some persons are pelting stones and hence, there was hotchpotch. Therefore, said police party, alongwith PI Pachpute, PSI Shindeand Shelke had rushed towards Delhi-gate and noticed that fromNepti Naka, mob of Mohammedans is coming while peltingstones. At that time, the police party had convinced them tomaintain peace and then succeeded in dispersing the mob. However, at that time, the mobbers pelted stones out of which, one stone hit on the person of PI Pachpute, due to which he hadsustained bleeding injury. Hence, he was taken to civil hospital, *6* apeal152a161o05Ahmedangar. (b)Then the said police party rushed towards ChaupatiKaranja and when they noticed mob of Hindus gathered fromNalegaon side, they gave call to maintain peace and dispersedthem. Then they have been at Zarekar lane and on the roadsituated behind District Court, they noticed that the mob waspelting stones. Simultaneously, there was news about somemobbers have pelted stones on Faraskhana mosque. Hence, thesaid police party had rushed there by mobile van and gave call tothe mobbers to maintain peace and dispersed the mob which wasof about 200 persons including present accused. Then, again theyhave been at Chaupati Karanja and at that time, the mobconsisting of accused nos.1 to 6 and other 200 persons havepelted stones on the police party with intent to restrain them fromdischarging their duty of public servant in lawful manner. In thesaid stone pelting, one stone hit on the mouth of PW-1 PSIShinde and he had sustained contusion and dislocation of rightcanine tooth and right first pre-molar tooth of lower jaw withprofuse bleeding. Therefore, the press reporters had carried himin Civil Hospital, Ahmednagar for medical treatment where he *7* apeal152a161o05was treated by PW 4 Dr. Swati Naik. Thereafter, PW 1 PSIShinde had lodged the said report with Kotwali Police Station. 3.Criminal law was set into motion. The investigationof crime was handed over to PW-3 PSI Bondar. The spotpanchanama was carried out. The accused were arrested. Necessary evidence was collected. After completion ofinvestigation, the charge-sheet was filed in the Court of J.M.F.C.Ahmednagar on 18.06.2003. Then, the said Court has committedcase to the Sessions Court, Ahmednagar by his order dated06.11.2004. Thereafter, the charge vide exhibit-27 came to beframed, which was read over and explained to the accusedpersons/ appellant in vernacular, to which they have pleaded notguilty and claimed to be tried. The prosecution has examined thefollowing witnesses:-PW No.Name of witnessSignificance/ role PW-1PSI ShindeInformant. Injured eyewitness tounlawful assembly and stonepelting.PW-2Police ConstableDhavaleEyewitness accompanying PW-1. Identified accused anddescribed mob conduct.PW-3API Shri BondarInvestigating Officer. PW-4Dr. Swati NaikMedical Officer. Examined PW-1 injured witness. *8* apeal152a161o054.After recording evidence and hearing the appellantsand prosecution side, learned 4th Ad-hoc Additional SessionsJudge was pleased to pass the impugned judgment. Hence, theinstant appeals filed by accused Nos.1 to 6.5.Learned advocate Shri Satej Jadhav for theappellants/ original accused Nos.1 to 5 in Criminal AppealNo.152/2005 as well as learned advocate Shri S.S. Jadhavarappearing for the appellant/ accused No.6 in Criminal AppealNo.161/2005, vehemently submitted that the learned SessionsJudge committed grave error by convicting the appellants as ithas not properly appreciated evidence brought on record. Theprosecution has failed to prove guilt of the appellants beyondreasonable doubt. Learned advocates submitted that accusedNo.1 was Councillor from Nalegaon Ward and accused Nos.4and 5 are his brother-in-law and therefore, they have been falselyimplicated. Accused No.4 was serving as primary teacher inSangamner taluka and he was not present on the spot at the timeof incident and he has also been falsely implicated. AccusedNo.6 specifically stated that since 2003, he was the President ofStudents Union in Ahmednagar city and therefore, he has been *9* apeal152a161o05falsely implicated.6.Learned advocates further submitted that in theincident of large mob where there were about 200 peopleinvolved and the stone pelting allegedly took place at night hoursand in such situation, it is very difficult to believe that out of mobof 200 people, only the appellants/ accused have been identifiedby the informant. Therefore, it was not appropriate for thelearned Sessions Judge to base the conviction particularly whenthere was no test identification parade. The FIR itself mentionedthat there were many unknown persons involved in the mob. Thus, the naming of the appellants/ accused by the informant isbased on wrong assumption. Assuming that the appellants werepresent in the mob, that does not mean that the appellants werepart of unlawful assembly or that they had shared commonintention of attack on the police party. The prosecution has notproved that the appellants threw any stone or instigated others todo so. In such situation, Section 149 of the IPC cannot be appliedmechanically.7.Learned advocates strenuously submitted that allwitnesses examined by the prosecution are police personnel and *10* apeal152a161o05one is medical officer. No independent witness from civilian hasbeen examined, though it is alleged that there was mob of about200 people. Thus, the witnesses examined by the prosecution areinterested witnesses and their testimonies cannot be relied upon.8.Learned advocates for the appellants furthersubmitted that the prosecution has alleged that in the saidincident, stones, bricks and other materials were involved orwere allegedly thrown towards the police party, however, nothinghas been seized or produced before the Court to prove the guiltof the appellants beyond reasonable doubt. The prosecution alsodid not produce photos or video recordings before the Court, though it is alleged that photographers and video persons werepresent at the spot to record huge procession. There is no proof toshow that it was only these six appellants who were leadingprocession and they were pelting stones towards the police party. There are lot of lapses in investigation. Though there were panchwitnesses to the spot panchanama, however, they were notexamined. Though injured PSI Shinde (PW-1) received grievousinjury, but there is no evidence to show which accused/ appellantthrew the stone. Learned advocates, therefore, submitted that *11* apeal152a161o05unless and until the assaulting accused is identified, theconviction under Section 325 r/w 149 of the IPC cannot beapplied. In order to prove offences involved in the present case, the prosecution is required to prove its case beyond allreasonable doubt. Merely because, the appellants were allegedlypart of the mob, cannot be sufficient to hold that they have peltedstone or instigated others to do so. The prosecution has notconducted a test identification parade though the accused werenot previously known to PW-1 or PW-2. Learned advocates, therefore, submitted that the instant appeals be allowed byacquitting the appellants/ accused.9.Per contra, learned APP strongly opposed thesubmissions of learned advocates for the appellants. According tolearned APP, the statements of witnesses proved the guilt of theappellants beyond all reasonable doubts and, therefore, theirevidence cannot be discarded. Since the police personnel and themedical officer are examined, their testimonies are trustworthyand are in corroboration with each other. Therefore, theirtestimonies cannot be brushed aside unless and until there iscontrary statement in the same. Learned Sessions Judge has *12* apeal152a161o05rightly considered evidence on record and rightly convicted theappellants. Learned APP, therefore, prayed for dismissal of theappeals.10.After hearing the submissions of learned advocatesfor the respective parties and with their assistance, after goingthrough evidence on record carefully, it is clear that the policewere on bandobast duty and there was mob of 200 personsallegedly pelting stones in order to prohibit the police fromperforming their lawful duty. During stone pelting, PSI Shinde(PW-1) was injured and was taken to hospital and was treated byPW-4 Dr. Naik. Dr. Naik opined that the injuries sustained byPSI Shinde (PW-1) were grievous in nature. The prosecution hasexamined only four witnesses, though there was mob of about200 persons. No independent corroboration was brought onrecord despite availability of several civilians, press and mediapersons.11.As far as evidence of PW-1 PSI Shinde isconcerned, he deposed that he was injured in the said stonepelting as one stone hit on his face and he sustained contusion onouter side of face and dislocation of two teeth of lower jaw. It *13* apeal152a161o05was bleeding injury. He deposed that some press and TVreporters were present and they have taken PW-1 to civil hospitalin their vehicle. It is noteworthy that the prosecution has notexamined any reporter or driver of the vehicle, who carried PW-1to hospital. PW-1 further deposed that he identified accusedNos.1 and 4 to 6 before the Court and denied the suggestion thatdue to night hours, he could not personally witness any mobber.It is relevant that PW-1 does not state that he saw any particularaccused throwing the stone which hit him.12.The prosecution has also examined PW-2 PoliceConstable Dhavale, who is also eyewitness. PW-2 deposed thatone stone hit on the face of PW-1 and he sustained bleedinginjury and dislocation of two teeth from lower jaw. Therefore, PW-1 was taken to hospital in the vehicle of press reporters. PW-2 deposed that when he was shown the accused persons in lock-up of the Police Station, he identified them and stated that theywere present at the time of incident and had pelted stones. Thesupplementary statement of PW-2 was recorded and PW-2identified the accused persons present in the Court.13.PW-3 is the Investigating Officer and PW-4 is the *14* apeal152a161o05Medical Officer. However, evidence as regards PW-1 and PW-2,who are eyewitnesses, itself is very silent as to who is the authorof the injury sustained by PW-1. PW-1 and PW-2 have stated thatit was not the procession from one community, but there werepersons from both Hindus and Muslims communities involved inthe procession. Both stated that one stone from one mob cameand hit on the face of PW-1, but who had thrown the said stone isnot clear from their depositions. Such general statements areinsufficient to fix criminal liability on specific individuals in amob of almost 200 persons. In such background, evidence ofPW-1 and PW-2 is not sufficient to convict the appellants.14.Sections 143, 147 and 149 are in respect of unlawfulassembly and rioting. It is well settled that to show that a personis a member of an unlawful assembly, it is not necessary thatsuch person must commit overt act towards commission ofcrime. However, the test is whether, he knows common intentionand continues to keep himself in company on his own free will.If some unidentified members of unlawful assembly arebehaving in unruly manner, then other members of suchassembly cannot be held guilty merely because they are members *15* apeal152a161o05of such assembly.15.Likewise, in order to prove guilt under Section 353of the IPC of assaulting or using criminal force to deter publicservant from discharging his duty, it is necessary for theprosecution to establish that the accused persons have resistedpublic servant from performing his official duty. Taking part inlawful procession is not at all prohibited, however, whether, suchprocession was carried out in order to prevent the public officerfrom discharging public duty, is required to be seen. There is noiota of evidence on record to suggest that the procession wascausing any hindrance to the policy party while they wereperforming their duties. Therefore, as there is no specificaverment in the deposition of any of witnesses that the appellantsalone and none other else in the said mob of 200 people, weredeterring the police from discharging their duty, the appellantscannot be held guilty of the said offence. The prosecution has notproved that the appellants formed a common object to obstructthe police from discharge of duty. Therefore, the prosecution hasfailed to prove the charge under Section 353 of the IPC.16.As far as offences punishable under Sections 148, *16* apeal152a161o05332, 325 and 337 of the IPC are concerned, those offences willattract if the accused, who have caused injuries, are identified. The informant cannot pick and choose only few persons out ofthe mob of 200 people and state that only the accused personshave caused injuries to him. Therefore, the prosecution has failedto prove the guilt of the appellants for the said offences.17.In cases involving large unlawful assemblies, theHon’ble Supreme Court has repeatedly held that unless specificovert acts or clear evidence of participation is proved against anaccused, a conviction with the aid of Section 149 IPC cannot besustained. In Masalti v. State of U.P., AIR 1965 SC 202, theHon’ble Supreme Court observed that where a crowd consists ofmany persons, the court must insist on clear, cogent and reliableevidence fixing the role or presence of each accused. Similarly, in State of Rajasthan v. Raja Ram, (2003) 8 SCC 180, it was heldthat omnibus allegations against persons said to be in a mob areinsufficient to attract vicarious liability under Section 149 IPC. Inthe present case, neither PW-1 nor PW-2 has attributed anyspecific act to the appellants, nor has the prosecution establishedthat they shared a common object to attack the police party. In *17* apeal152a161o05absence of such evidence, the benefit of doubt must go to theaccused.18.In view of the foregoing discussion, I am of the viewthat the prosecution has failed to establish the ingredients of thecharge levelled against the appellants beyond reasonable doubt. Consequently, both these Criminal Appeals are allowed and theimpugned judgment and order is quashed and set aside. Theappellants/ accused are acquitted for the said offence. As theappellants are on bail, they need not surrender. The bail bondstands cancelled. Surety, if any, stands discharged. Fine amount, if deposited, be refunded. The record and proceedings be sentback to the concerned Court. kps (SUSHIL M. GHODESWAR, J.)