Appeal 39.91 1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO.39/1991 1 Ravindra Hanumant Mane, Age-27 years,Occ.-Business, Residing at 237 Somwar Peth, Pune. 2 Rajendra Hanumant Mane,@ Bidya Raja ,Age-22 yrs. Occ. Business,R/at 237 Somwar Peth,Pune (Since appellant nos.1 and 2 are dead) 3 Satish Vithal Marathe, Age-27 yrs.,Occ.Rikshaw driver,R/at 237 Somwar Peth Pune. APPELLANTS VS. The State of Maharashtra RESPONDENT Mr.Anil Ghag i/b Mr.M.K.Kocharekar for appellants Mr.D.P.Adsule,APP for State CORAM: NARESH H.PATIL & MRS.MRIDULA BHATKAR,JJ. RESERVED ON - 27th JUNE,2011. PRONOUNCED ON-18/7/2011 Appeal 39.91 2 J U D G M E N T (Per Mrs.Mridula Bhatkar,J.) . This appeal is filed against the judgment and order dated 29/10/1990 passed by the Additional Sessions Judge,Pune in Sessions Case no.199/90 convicting and sentencing the appellants for the offence punishable under section 302 r/w 34 of the Indian Penal Code to suffer life imprisonment and fine. 2 Appellant no.1 died on 2/1/2006 and appellant no.2 died on 11/2/2002. Therefore, by order dated 6/4/2011, this Court passed an order of abetment of the appeal against appellant nos.1 and 2. Today appellant-accused no. 3 is before us. 3 Appellant no.3, deceased appellant nos.1 and 2 and the other co-accused were the residents of Somwar Peth, Pune. Deceased Zuber Bashir Shaikh was also residing in the same vicinity. On blowing crackers,Zuber, his friends and the accused had quarrel in Diwali. On 31/10/1989 at night there was some altercation between accused no.2 and Appeal 39.91 3 the deceased. Both of them abused each other. Thereafter accused no.2 threatened the deceased and ran away. P.W. 11 and P.W.4 were present there. Immediately accused nos.1 and 3 arrived at the spot. Accused no.1 was armed with stick. Accused no.1 and 2 were brothers. Therefore, the deceased complained about the behaviour of accused no.2 . Meanwhile accused no.2 arrived there with stick. Accused nos.2 and 3 started assaulting the deceased with stick. Accused no.1 took out knife which he had kept in the waist side of his trousers and stabbed the deceased in the left side of the chest , on the bridge of the nose and on the head. Alongwith Zuber, P.W.11, Sheru @ Sameer Mohamad Tayar Aga and P.W.4 Sayad Sadiq who were present witnessed the assault. Accused no.3/appellant assaulted Sameer with stick. So Sameer started running. Accused no.1 handed over said knife to accused no.3. Accused no.3 kept that knife in the dickey of the scooter of accused no.4 who was waiting near the lane. Thereafter accused nos.1 and 2 ran away and accused no.3 and 4 fled away on scooter. Accused no.3 while running away threatened the complainant, P.W.11, that he should not tell the name of Appeal 39.91 4 accused no.3 to the police otherwise he would kill him. P.W.11 went to Daruwala Police chowky and reported the incident to the police. Police registered the offence at C.R.No.213/89 punishable under section 302 ,323, 201 r/w 34 of the Indian Penal Code against the accused. Immediately the police rushed to the spot. Injured Zuber was taken to the hospital for treatment. On the same night he succumbed to the injuries. Medical Officer opined the cause of death as due to shock as a result of stab injury. The police drew spot panchanama. They arrested all the accused, recovered stick and knife at the instance of accused no.3 and after completion of the investigation chargesheet was filed against the accused in the Sessions Court. All the four accused were tried before the Sessions Court. Accused no.4 was acquitted. Accused nos.1,2 and 3 were convicted for the offence of murder of Zuber, punishable u/s 302 r/w 34 of the Indian Penal Code. 4 Learned counsel appearing for appellant/accused no. 3 argued that the appellant is falsely involved in this case. Due to the discrepancies in the evidence of P.W.4 and P.W. Appeal 39.91 5 11 who claimed to be the eye witnesses, presence of this accused is doubtful. He pointed out the history recorded by the medical officer on the case paper wherein the medical officer has mentioned that deceased Zuber was found lying on the road side. He submitted that there are material improvements on the part of P.W.4 as well as P.W. 11 in respect of stating the actual assault by stick by accused no.3 on Zuber. He submitted that so far as the F.I.R. is concerned, it does not reveal names of accused nos.3 and 4,but only names of accused nos.1 and 2 were given by the complainant. He argued that when the complainant was present he should have mentioned the names of accused nos.3 and 4 immediately in the F.I.R.. However, this is afterthought and,therefore, in the supplementary statement which was recorded on the next day, the names of the present appellant and accused no.4 are appearing. Learned counsel argued that the explanation given by P.W. 11 that he was threatened to life by the accused and,therefore, he did not mention his name in the FIR cannot be accepted because he immediately on the next day had mentioned names of accused nos.3 and Appeal 39.91 6 4. Moreover, as per the case of the complainant it was not accused no.3, but accused no.1 who was armed with knife and though he actually stabbed the deceased, the complainant was not scared of accused no.1. Learned counsel further submitted that quarrel and abusing had taken place between Zuber and accused nos.1 and 2. Prosecution could not prove the motive against accused no.3. Alternatively he argued that even though accused no. 3 was assumed to be present with stick at the time of incident, the injuries received by the deceased disclose that the deceased did not die due to stick blows i.e. Injuries 8 and 9.Whatever role the appellant has played is minimum and it cannot be taken within the meaning of section 302 r/w 34 of the Indian Penal Code. 5 Per contra learned A.P.P. argued that prosecution has tendered sufficient evidence proving the guilt of accused no.3. He pointed out that the case is based on the evidence of the eye witnesses i.e.P.W. 4 and P.W.11 which is not destroyed in the cross examination. He read over the evidence of P.W.4 and P.W.11 wherein both the Appeal 39.91 7 witnesses have stated about the actual incident of assault. He further pointed out that apart from the evidence of these eye witnesses, prosecution has produced and relied on the evidence of recovery of stick and knife at the instance of accused no.3. Thus, all the accused were jointly liable for the act of murder on the point of section 34 of the Indian Penal Code. . He relied on Sewa Ram & Anr. Vs.State of U.P. , AIR 2008 Supreme Court,682 AND Yallappa and Others Vs.State of Karnataka, 1994 Supreme Court Cases (Cri.)466. Though the appellant was having stick and was not having knife, he shared common intention with accused no.1 and, therefore, he was rightly held guilty for the offence of murder. Learned APP highlighted the evidence of eye witnesses. P.W.11 had deposed that accused no.3 threatened him while running away and he accepted knife from accused no.1 and kept in the dickey of the scooter on which he fled away. This evidence reveals that the appellant intended to kill the deceased and shared common intention with accused nos. 1 and 2. Appeal 39.91 8 6 The present case stands on two strong pillars of two eye witnesses. Their evidence is not destroyed in the cross examination. The complainant was injured; though the injuries were of minor nature, it corroborates his presence. Without any delay the deceased was taken to the hospital and F.I.R. was given by the complainant. Omission in the FIR of the names of accused nos.3 and 4 cannot be considered as a material omission, as the supplementary statement was recorded immediately with justification that the complainant had received threat of life from the appellant. The discrepancies in the evidence of P.W. 4 and P.W. 11 are not major to dislodge their evidence. Both the witnesses have given detail description of the assault on Zuber and thus the presence of all the assailants including the present appellant is believed. We accept the case of the prosecution that incident had taken place in the night on 31/10/1989 due to some previous altercations between the deceased and accused nos.1 and 2. We are convinced that the evidence of the eye witnesses on the point of actual assault is also true and creditworthy. Thus, the appellant was present with the stick and Appeal 39.91 9 assaulted the deceased with the stick alongwith accused no.2. Thereafter accused no.1 handed over knife to the appellant and the appellant threatened the complainant that he should not mention his name to the police. He kept the knife in the dickey of the scooter and ran away. 7 Now the question before us is short. Section 34 speaks about common intention of all the assailants to commit an act. In Sewa Ram & Anr. Vs.State of U.P. , AIR 2008 Supreme Court,682 it is held in paragraph 12 that- “Direct proof of common intention is seldom available and, therefore, such intention can only be inferred from the circumstances appearing from the proved facts of the case and the proved circumstances. In order to bring home the charge of common intention the prosecution has to establish by evidence, whether direct or circumstantial, that there was plan or meting of minds of all the accused persons to commit the offence for which they are charged with the aid of Section 34, be it pre-arranged or on the spur of the moment; but it must necessarily be before the commission of the crime. The true concept of the section is that if two or more persons intentionally do an act jointly the position in law is just the same as if each of them has done it individually by himself.” Appeal 39.91 10 8 Thus, while determining existence of the common intention proper scrutiny of the circumstances, evidence and facts of each case is required. It is settled position of law that though any overt act is not attributed to the accused, yet if his intention to kill the deceased can expressly be brought on record, he is covered under 34 of the Indian Penal Code. Sharing common intention is a mental process where two or more accused persons approve the action of each other to commit a crime. With this background it is necessary to assess the evidence of the eye witnesses on actual assault. 9 P.W.11,complainant, on the point of incident has deposed as follows. “ Meanwhile accused no.2 came there with stick and then accused nos.2 and 3 started beating deceased with stick. Then accused no.1 took away big knife from his waist and gave a blow with it on the chest of Shaikh.” P.W.4 on the point of incident has deposed that - “ Accused nos.2 and 3 sarted beating Shaikh with sticks. Then accused no.1 took away a big knife from his waist and gave a blow to the deceased on his chest and on back.” Appeal 39.91 11 10 We confirmed the sequence of attack by verifying these depositions in vernacular script i.e. Marathi which is considered more authentic. Thus, if the incident is constructed as per the sequence given by the witnesses, accused nos.2 and 3 who were holding sticks, gave blows to the deceased first. These blows inflicted contusion injuries on the person of the deceased which are described in postmortem report in column-injuries at Sr.no.8 and 9. These two injuries were found one on elbow and the other on thigh. These injuries of stick blows were not on the vital part. Injury no.1 on head as per the evidence of the doctor, P.W.2, in his examination in chief was due to a stick blow. However, the said injury was incised wound and in cross examination he admitted that it was incised wound and could not be caused by blunt object. The death of the deceased is caused due to stab injuries. After stick blows given by accused nos.2 and 3, accused no.1 stabbed the deceased on different portions of his body and accused nos.2 and 3 did not assault the deceased thereafter. 11 If there is evidence that accused persons had Appeal 39.91 12 met earlier and they had decided jointly to kill a particular person and one might not have committed any overt act yet he is guilty for committing murder under section 34 of the Indian Penal Code. As stated earlier a person may stand near the assailant and tell him to kill the victim or finish him. This will be an expressed act showing direct common intention. However, if prosecution produces evidence that assailants came together at the spot and one of them was armed with deadly weapon which was not visible and others were not having weapons though they all participated in assaulting the deceased with kicks and blows; did not continue kicking or hitting after the deceased is assaulted with weapon like sword or knife on the vital part, then depending the facts and circumstances of the case other accused may deserve benefit of doubt that they might not have common intention to kill the victim. If the act of assaulting with stick, kicks or fist blows would have continued even after the fatal injuries were inflicted by the co-assailants, then it may lead to sharing intention and the case will fall within Section 34 of the Indian Penal Code. Considering the facts and Appeal 39.91 13 evidence before us we are inclined to give the benefit of doubt to the present appellant. 12 On scrutiny of the evidence of the eye witnesses on the point of assault, we find that the eye witnesses have not stated that accused no.3 continued assaulting the deceased after accused no.1 took out knife and stabbed the deceased. Thus, the act of giving stick blow was prior to stabbing and stick blows were not given on the vital part of the body. This sequence is very important to infer the common intention of the co-accused on the point of murder. Both the eye witnesses have also deposed that accused no.1 was not holding knife in the hand when he arrived, but he had kept the knife in the waist of his trousers. Thus, it may not be visible. So it is unsafe to infer that accused no.3 had knowledge that accused no.1 was carrying a dangerous weapon like knife with him and he is going to use it to kill the deceased. 13 Considering the facts, circumstances and the evidence before us, the appellant is entitled to benefit of Appeal 39.91 14 doubt on the point of sharing common intention to kill the deceased. However, the prosecution has proved that he assaulted the deceased with stick blows. The evidence of the eye witnesses discloses that after stabbing the deceased, accused no.1 handed over the said knife to the appellant and the appellant kept that knife in the dickey of the scooter and ran away. This act of accepting knife and keeping it in the scooter and subsequently hiding it somewhere cannot be associated with the act of murder itself. Accepting knife is a different act and it reveals that the appellant intended to destroy the evidence of murder. Though the charge is framed under section 201 of the Indian Penal Code against accused nos.3 and 4, the learned trial Judge has acquitted accused no.4 of the offence punishable u/s 201 of the Indian Penal Code and did not pass any order of conviction against the present appellant under the said offence. 14 The prosecution has also not preferred the appeal against the acquittal of the accused from section 201 of the Indian Penal Code. Hence the accused cannot Appeal 39.91 15 be convicted for the said charge in the appeal. 15 The learned trial Judge did not award separate sentence for the offences punishable u/s 323 and 506 of the Indian Penal Code,though he held that they are guilty for the said charges, as the accused were convicted for an offence punishable u/s 302 of the Indian Penal Code. Hence the appeal is partly allowed. Judgment and order of the trial Court,dated 29/10/1990 is hereby modified as under. The appellant is acquitted of the offence punishable u/s 302 r/w 34 of the Indian Penal Code. The appellant/accused is convicted for the offence punishable u/s 323 of the Indian Penal Code and sentenced to suffer R.I.for one year. The appellant/accused is convicted for the offence punishable u/s 506 of the Indian Penal Code and sentenced to suffer R.I.for two years. Set off under section 428 of the Criminal Procedure Code be given to the appellant/accused. Appeal 39.91 16 The sentences to run concurrently. (MRS.MRIDULA BHATKAR,J.) (NARESH H.PATIL,J.)