Appeal against the judgment of the Hon’ble High Court partly allowed
1. Criminal Appeal No. 1755 of 2011 is an appeal filed under Section 379 of the Code of Criminal Procedure, 1973 (hereinafter referred to as “the CrPC”) and Section 2(a) of the Supreme Court (Enlargement of Criminal Appellate Jurisdiction) Act, 1970 (hereinafter referred to as “the Supreme Court Act”), by Haribhau @ Bhausaheb Dinkar Kharuse (accused no. 3/appellant no. 1) and Raju @ Rajendra Bhiwrao Shirwale (accused no. 4/appellant no. 2), challenging the final judgment dated 02.02.2011 passed by the High Court of Judicature at Bombay in Criminal Appeal No. 626 of 2001, whereby the High Court partly allowed the said appeal and reversed the order of acquittal for the offence punishable under Sections 302 and 307 read with Section 149 of the Indian Penal Code, 1860 (hereinafter referred to as “the IPC”), vide the judgment dated 18.05.2001 passed by the VIII Additional Sessions Judge, Pune, in Sessions Case No. 72 of 2000.
Factual matrix
Ankush Gholap was assaulted on his head and FIR registered: 3. The brief facts of the present case as per the appellants is that from 25.04.1999 to 27.04.1999, several wedding ceremonies were held in different branches of the Gholap family at village Kari, Pune District. On 26.04.1999, during a wedding procession, Ankush Gholap was assaulted on his head by Vitthal Deoba Gholap, brother of Pandharinath Devba Gholap (accused no. 1). Ankush subsequently registered a police complaint that same night with Bhor Police Station.
PW.1 reported the subsequent death assault to the police: 4. On 27.04.1999, Ankush, along with Dnyanoba Ravba Gholap, Rajendra Gholap (PW-7) and Shivaji Sanas (PW-9), travelled to Bhor in a jeep driven by Sopan Dagadu Gholap (PW-1). While returning, near Navi Ali, they stopped. At this point, accused no. 1 and Maruti Ramchandra Gholap (accused no. 2) arrived on a motorbike driven by accused no. 3. The accused no. 4 drove another motorbike with two pillion riders, namely, Vitthal Baburao Shinde (accused no. 5) and accused no. 6. The accused no. 3 removed the jeep’s keys and punched PW-1. Meanwhile, the other accused persons dragged Ankush, PW-7 and PW-9 from the jeep. The accused no. 1 and 2 attacked Ankush with sharp weapons, causing his death on the spot while PW-7 and PW-9 sustained serious injuries and PW-1 managed to escape and later reported the incident to police.
Trial: 5. The postmortem examination of Ankush (deceased) was conducted by Dr. Praveen Chaudhary (PW-16), confirming death due to haemorrhagic shock from multiple injuries caused by sharp weapons. PW-7 and PW-9 were treated for grievous injuries at local hospitals. The accused persons were arrested and the charge sheet was filed. 6. The Sessions Court framed charges against the accused persons for committing offences punishable under Sections 147, 148, 149, 302, 307 of the IPC and alternatively under Sections 302, 307 read with Section 34 of the IPC. During the trial, 27 witnesses were examined. The defence presented one alibi witness, Balasaheb Gholap (DW-1), for accused no. 1 and 2.
Trial court convicted the accused: 7. The trial court, on 18.05.2001, convicted accused No. 1 and 2 for committing offences punishable under Sections 302 and 307 of the IPC, sentencing them to life imprisonment and rigorous imprisonment for a period of seven years, respectively. The accused no. 6 was also convicted for committing an offence punishable under Section 307 of the IPC and sentenced to imprisonment for a period of seven years and was acquitted for the offence punishable under Section 302 read with Section 149 of IPC. The accused no. 3, 4 and 5 were acquitted due to insufficient evidence.
Hon’ble High Court confirm the conviction: 8. Before the High Court, accused no. 1, 2 and 6 filed appeals challenging their convictions, while the State appealed the acquittal of accused no. 3, 4 and 5. Vide the impugned judgment, the High Court partly allowed the State’s appeal, reversing the acquittal of accused no. 3 and 4. The High Court dismissed the appeals filed by accused no. 1, 2 and 6, confirming their convictions. The High Court further reversed the acquittal of accused no. 6 under Section 302 read with Section 149 of the IPC.
9. Vide the impugned judgment, accused no. 1, 2, 3, 4 and 6 were held guilty for the offences punishable under Sections 147, 148, 149 and Sections 302 and 307 read with Section 149 of the IPC and were sentenced with rigorous imprisonment for life for the offence punishable under Section 302 read with Section 149 of the IPC and with rigorous imprisonment for ten years for the offence punishable under Section 307 read with Section 149 of the IPC.
Analysis and findings
29. We have heard learned counsel for the parties and perused the material available on record. At the outset, it is well settled that interference with an order of acquittal must be exercised with great caution. However, such interference is justified where the findings of the Trial Court are manifestly perverse, unreasonable or contrary to the evidence on record. In Chandrappa v. State of Karnataka, (2007) 4 SCC 415 (para 42), this Court held that an appellate court possesses full power to review, reappreciate and reconsider the evidence upon which the order of acquittal is founded and to reach its own conclusions if the view taken by the trial court is not reasonably sustainable.
Recording of acquittal by the Trial court is from a fundamental misappreciation of evidence
30. Applying these principles to the present case, it is evident that the acquittal recorded by the Trial Court suffered from a fundamental misappreciation of evidence. The Trial Court overlooked the consistent and corroborated testimony of injured eyewitnesses and failed to appreciate the legal effect of the active participation of the appellants as members of an unlawful assembly. The High Court, in reversing the acquittal, has given cogent and well-reasoned findings based on a proper appraisal of the record.
Injured witness: 31. The prosecution examined PW-1, PW-7 and PW-9 as eyewitnesses, of whom PW-1 is the complainant, while PW-7 and PW-9 are injured witnesses.
Consistent testimonies of eye-witnesses of accused persons arrived at the scene on motorcycles with deadly weapons
35. On a careful perusal of the above depositions, it is revealed that the testimonies of the eyewitnesses are natural, coherent and mutually corroborative on all material particulars. They consistently deposed that on 27.04.1999, the accused persons, including the present appellants, arrived at the scene on two motorcycles armed with deadly weapons such as knives and sattur. The appellants actively facilitated the commission of the offence by accompanying the co accused persons, ensuring the confinement of the victims and participating in the coordinated assault.
36. PW-1 and PW-7 categorically stated that appellant no. 1 and 2 (accused no. 3 and 4) were among those who surrounded the deceased and the injured witnesses, thereby preventing their escape and were fully aware that the co-accused persons were armed. The evidence further establishes that appellant (accused no.6) inflicted grievous injuries upon PW-7, demonstrating his direct participation in the attack. PW-9 corroborated these accounts and unambiguously identified all three appellants as members of the group acting in concert and sharing a common objective.
37. The consistent narrative of these eyewitnesses leaves no room for doubt that appellants no. 1 and 2 (accused no. 3 and 4), by transporting the armed assailants to the spot and facilitating the attack, and appellant (accused no. 6), by inflicting injuries during the assault, were integral participants in the execution of the unlawful design.
Medical witness corroboration testified that the fatal injuries were caused by sharp and hard weapons
39. The medical evidence provides strong corroboration to the prosecution’s case and reinforces the credibility of the eyewitness testimonies. PW-16, the doctor who conducted the post-mortem on the deceased, noted multiple incised and penetrating wounds on vital organs, such as the heart, liver and brain, injuries sufficient in the ordinary course of nature to cause death due to haemorrhagic shock. Similarly, PW-7 and PW-9 sustained grievous injuries, including rib fractures and internal perforations, as confirmed by two doctors, PW19 and PW-21, both of whom testified that the injuries were caused by sharp and hard weapons like knives and sattur.
Medical findings align perfectly with ocular evidence for brutal and coordinated nature of attack
40. These medical findings align perfectly with the ocular evidence and highlight the brutal and coordinated nature of the attack. The timing, nature and multiplicity of injuries clearly indicate a deliberate and orchestrated assault executed in furtherance of a common unlawful object. The harmony between the medical and ocular evidence leaves no scope for doubt as to the active participation of the appellants in the premeditated attack.
Common Object and Vicarious Liability
Contention of accused that no common object to commit murder but only to cause hurt was rejected
41. The principal defence advanced on behalf of the appellants is that there was no common object to commit murder and, at best, the intention was only to cause hurt. This contention is untenable in light of the evidence on record. The prosecution has clearly established that all the accused persons, including the appellants, arrived together, armed with lethal weapons and jointly executed a deliberate and coordinated assault on the deceased and other victims. The nature of the weapons used, coupled with the ferocity and precision of the attack, unmistakably demonstrates that the common object of the assembly extended well beyond merely causing hurt and encompassed the commission of murder.
It is not necessary that each member of unlawful assembly to commit overt act but once participation and sharing of common object is proved every member is liable for offence
42. Section 149 of the IPC unequivocally provides that every member of an unlawful assembly is guilty of an offence committed in prosecution of the common object or of one which such members knew to be likely committed in furtherance thereof. In Masalti (supra) (para 17), this Court clarified that it is not necessary for each member of the unlawful assembly to have committed a specific overt act. Once participation and sharing of the common object are proved, every member becomes vicariously liable for offences committed in prosecution of that object.
43. In the present case, the evidence conclusively establishes that all three appellants were members of an unlawful assembly that carried out a premeditated and violent attack resulting in the death of the deceased and grievous injuries to PW-7 and PW-9. The role of appellant (accused no. 6) in inflicting serious injuries upon PW-7 demonstrates his direct involvement and awareness of the collective design. The appellant no. 1 and 2 (accused no. 3 and 4), who transported the armed assailants to the scene, played an equally crucial role by facilitating the attack and ensuring its execution in furtherance of the common object.
Evidence shows that appellants were not spectators but active participants of the planned assault
44. The cumulative evidence clearly shows that the appellants were not passive spectators but active participants and facilitators in a deliberate and planned assault. Their conduct and presence at the scene, in concert with the armed co-accused persons, establish their common intention and vicarious liability under Sections 302 and 307 read with Section 149 of the IPC.
Conclusion
47. In view of the consistent and corroborated ocular and medical evidence, coupled with the established presence and active participation of accused no. 3, 4 and 6 (the appellants herein) in furtherance of the common object, this Court finds no error in the conviction recorded by the High Court. The ingredients of Section 149 of the IPC stand fully satisfied, rendering each appellant vicariously liable for the offences committed in prosecution of the unlawful object.
No merits in appeal and dismissed
48. Accordingly, this Court finds no merit in the present appeals. The conviction and sentence imposed on accused no. 3, 4 and 6 (the appellants herein) by the High Court vide the impugned judgment dated 02.02.2011 are affirmed. The appeals are dismissed as devoid of merit.
List of Judgments Cited or Quoted
- Daya Kishan v. State of Haryana, (2010) 5 SCC 81: Cited on the principle that mere presence in an unlawful assembly without participation or intent does not attract liability under Section 149 IPC.Haribhau-Bhausaheb-Dinkar-Kharuse-vs.-The-Stat-eof-Maharashtra.pdf
- Naresh v. State of Haryana, (2023) 10 SCC 134: Cited for the same proposition regarding Section 149 IPC.Haribhau-Bhausaheb-Dinkar-Kharuse-vs.-The-Stat-eof-Maharashtra.pdf
- Murugesan v. State, (2012) 10 SCC 383: Cited regarding the limits of the High Court’s interference in appeals against acquittal—only when the trial court’s view is perverse or unreasonable.Haribhau-Bhausaheb-Dinkar-Kharuse-vs.-The-Stat-eof-Maharashtra.pdf
- Siju Kurian v. State of Karnataka, (2023) 14 SCC 63: Cited similarly for appellate court’s power to reverse acquittals.Haribhau-Bhausaheb-Dinkar-Kharuse-vs.-The-Stat-eof-Maharashtra.pdf
- Shivaji Sahabrao Bobde v. State of Maharashtra, (1973) 2 SCC 793: Cited on the principle of proof beyond reasonable doubt and non-conviction on mere suspicion.Haribhau-Bhausaheb-Dinkar-Kharuse-vs.-The-Stat-eof-Maharashtra.pdf
- Chellappa v. State, (2020) 5 SCC 160: Cited for the benefit of doubt principle in cases involving common intention for murder.Haribhau-Bhausaheb-Dinkar-Kharuse-vs.-The-Stat-eof-Maharashtra.pdf
- M.C. Ali & Another v. State of Kerala, (2010) 4 SCC 573: Cited that if two views are reasonably possible, the appellate court should not interfere with the acquittal.Haribhau-Bhausaheb-Dinkar-Kharuse-vs.-The-Stat-eof-Maharashtra.pdf
- Masalti v. State of U.P., AIR 1965 SC 202: Quoted to clarify vicarious liability under Section 149 IPC—each member of unlawful assembly is responsible if sharing the common object.Haribhau-Bhausaheb-Dinkar-Kharuse-vs.-The-Stat-eof-Maharashtra.pdf
- Lalji & Others v. State of U.P., (1989) 1 SCC 437: Referred for the principle that all members of an unlawful assembly are culpable if the crime is committed in prosecution of their common object.Haribhau-Bhausaheb-Dinkar-Kharuse-vs.-The-Stat-eof-Maharashtra.pdf
- Chandrappa v. State of Karnataka, (2007) 4 SCC 415: Cited on appellate court powers regarding reappreciation of evidence and reversal of acquittal.Haribhau-Bhausaheb-Dinkar-Kharuse-vs.-The-Stat-eof-Maharashtra.pdf
Party
Haribhau @ Bhausaheb Dinkar Kharuse & Anr. versus The State of Maharashtra - Criminal Appeal No. 1755 of 2011 with Criminal Appeal No(s). 150-151 of 2013 - 2025 INSC 1266 - October 29, 2025 - Hon’ble Mr. Justice Prashant Kumar Mishra and Hon’ble Mr. Justice Vipul M. Pancholi.
