JAYENDRA SHANTARAM DIGHE Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) THE only limited point that is to be decided in this appeal is, as to whether a member of an unlawful assembly which was initially lawful can be said to be guilty of the offences committed by the unidentified members of the unlawful assembly by foisting vicarious liability under section 149 of the Indian Penal Code?

(2.) IN all thirty six persons from Baramati were charged under section 147, 148, 149, 295, 295-A, 332, 353, 434 and 337 of the Indian Penal Code. Out of these thirty six persons the present appellants, in all eighteen in number, were convicted under section 147, 148 and 332 read with section 149 of the Indian Penal Code and were sentenced to pay a fine of Rs. 250/- on each count and in default of payment of the fine to undergo simple imprisonment for ten days on each count. These appellants were acquitted of all the other charges for which they were charged before the trial Court. The rest of the accused persons were acquitted by the trial Court. It is against this decision dated December 12,1983, passed by Additional Sessional judge, Pune, in Sessions Case No. 75 of 1983, the present appellants have preferred this appeal.

(3.) A few facts which are material for deciding this appeal are as under: on February 13, 1982, at about 12. 30 noon one Dastagir resident of Baramati kept an excrement of a pig in front of the picture of Shivaji Maharaj. This injured the feelings of the local residents. To protest against the said insult and the injury caused to the sentiments, the workers of Vishwa Hindu Parishad decided to take out a morcha within the Baramati town. The morcha started from Sidheshwar Temple. It is the case of the prosecution that in the said morcha the accused persons carrying a Bhagwa flag were giving slogans viz. , `pakistan Murdabad, `pakistan Jala do, `landa Kapun Kadha etc. At this stage, I may point out that the trial Court has disbelieved that such slogans were given, but the trial Court has come to the conclusion that slogans like `if you want to stay in India say Wande Mataram were given. The said `morcha commenced from Gandhi Chowk and thereafter went through Tandulwadi Chowk (Durga Talkies), back to Tandulwadi Chowk, Tahasil Office, Gandhi Chowk through Bagwan Galli, Subhash Chowk, Bhigwan Chowk, Indapur Chowk, and from there some processionists proceeded towards the S. T. Bus Station, Gunwadi Chowk. From there some processionists went towards Pan Galli, Kasba Chowk, Kattalkhana, Makka Masjid. Thereafter the morcha crossed the river and reached the temple of Panvatha Hanuman Mandir. From there, the morcha again intended to pass through Bagwan Galli where they had already passed earlier. However, the police prevented them from doing so apprehending some trouble, by the processionists who were about two thousand in number, to the Muslim community in the Bagwan lane. The police asked them to disperse. Thereupon some of the participants of the morcha pelted stones towards Dy. S. P. , Jamadar and other Police Constables which caused injuries to certain Police Officers and the police staff. Therefore, the Dy. S. P. gave orders to P. C. Kamble to fire in air. As per the said order P. C. Kamble fired in air due to which the processionists dispersed. Subsequently, Sessions Case No. 75 of 1983 was filed against in all thirty six persons, including the present appellants, before the Additional Sessions Judge, Pune. In the said case it was alleged that slogans like Pakistan Murdabad `pakistan Jala do, `landyana Kapun Kadha were given and that some of the processionists entered into makka Masjid and burnt mats papers and threw them in the river. It is also alleged that when the processionists came near Panvatha Hanuman Mandir and as the police obstructed the procession to proceed through the Bagwan Lane, the processionists pelted stones at the police party. On these allegations, all the thirty six persons were charged under section 147, 148, 149, 295, 295-A, 332, 353, 434 and 337 of the Indian Penal Code and the present appellants were convicted under sections 147, 148 and 332 read with section 149 of the Indian Penal Code.