- (1.) - There are four appellants before us. They along with 118 others were tried for offences punishable u/ Ss. 147, 148, 302 read with S. 149, 452, 427, 337, IPC. The trial court convicted 37 of them and acquitted the rest. All of them preferred an appeal to the High Court. A Division Bench of the High Court in a very lengthy judgment having discussed the evidence of the eye-witnesses elaborately, confirmed the convictions and sentences of 8 of them and acquitted the rest. An appeal filed by the State was dismissed by the High Court. Out of the 8 convicted accused Jag Mohan (A-45), Pancham (A-77), S. P. Sinha (A-110) and Suraj Pal (A-115) have preferred this appeal. The prosecution case is as follows: There were rival unions in the colliery town of Majari situated in Chandrapur district in the State of Maharashtra.The colliery was owned before its nationalisation by private owners who employed a work force of about 1200 to 1600 men. In 1973 they were nationalised. Before that a union of the workers was established which was affiliated to INTUC. Accused No. 1 was its founder President while the deceased Pawar was its Vice-President. There were other members of the Committee also. The workers used to pay some subscriptions to the Union. It appears that a section of the workmen were dissatisfled with the running of the union and disputes arose and that the deceased Pawar was heading group of those workers who raised that dispute. Consequently, there was a rift between the President, A-1, Pandey and the deceased, Pawar. There were number of incidents on account of conduct of Pawar speaking against A-1 who was the President. Tension arose in the colliery and the relations became further strained. On the night of 16th/ 17th of October 1973 a meeting was addressed by A-1. In that it is alleged that he asked his workers to remain united. The dispute between the two sections led by A-1 and Pawar was also aired at the level of INTUC President. Some workers were prevented from going to their work by means of force and threats and violence. It became necessary to post S.R.P. battalion in the colliery but later they were withdrawn. On 20-11-1973 witness Nizamuddin went to time office to report for duty. A-93 was working in the time office and there was exchange of hot words between them. Nizamuddin having suffered the humiliation went to Pawar to whom he owed allegiance and reported the incident to him. Some reports were made by Pawar to the authorities. Thereafter a group of 150-200 persons collected from the side of workshop who were armed with variety of weapons and started throwing stones. A group thus collected proceeded towards the union office shouting slogans. They crossed the railway line and entered the Union office where Pawar was staying. It is alleged that some blows were dealt and Pawar ran away from the Union office into an open space and a crowd of about 120 persons chased him and he was surrounded and was mercilessly beaten resulting in his death. The dead body was carried to the hospital. News was sent to the colliery officers and later police came to know about it. The sub-inspector and other police officers with force proceeded to the colliery. The sub-inspector took up the investigation. He found that number of persons belonging to either group were injured. A report was sent. The crime was registered. An inquest was held over the dead body and the doctor found number of injuries. The injured witness as well as accused persons were treated by the doctor. The accused in general denied the offence.
(2.) The prosecution mainly relied upon the evidence of 5 witnesses. After screening through the evidence the learned Sessions Judge convicted 37 accused but as stated above the High Court upheld the conviction of only 8 out of which 4 are before us as appellants. We have gone through the voluminous judgment of the High Court carefully. The High Court after discussing the evidence of each of the witnesses formulated certain principles based on the ratio laid down in Masalti v. State of U.P., (1964) 8 SCR 133: (AIR 1965 SC 202). Before doing so the High Court also noticed that most of the witnesses are highly interested and partisan. The High Court also rejected the pleas of the defence that there was a free fight. Regarding the scope of S. 149 and its applicability the High Court at one stage observed thus: "It is not unusual that persons are attracted by curiously to an occurrence of assemlage. Merely because they were at the place of the incident would not make them members of the unlawful assembly. Therefore, something more than a mere passive attitude, some positive indication of sharing of the common object of the unlawful assembly or the possibility of imputing knowledge of the likelihood of the commission of offence in the course of the commission of the common object of the assembly to that individual, along with his presence at the time of commission of the offence is a requisite for conviction of any person u/ S. 149, IPC. That is the proper rule to apply and we propose to follow that rule and hold only such persons who are shown to have been members of the unlawful assembly at the time of committing of that offence, to be, vicariously liable."
(3.) Having set out this principle the High Court on the basis of the identification and mention being made by two or more witnesses, thought fit or safe to convict the 8 accused. So far as the common object of the unlawful assembly was concerned the High Court relied upon the evidence of the witnesses who stated that the crowd was raising slogans 'Mardalo Pawar ko' and on the basis of the injuries found on the dead body held that common object was to commit the murder of the deceased. Therefore, the High Court ultimately concluded that the 8 accused who were convicted were members of the unlawful assembly and therefore liable under S.302 read with S. 149, I.P.C.;