Bombay High Court
Mangesh S/O Bhimrao Barsakhale & ... vs State Of Maharashtra,Thr.Pso.Kotwali on 21 September, 2017
Author: Rohit B. Deo
Bench: Rohit B. Deo
apeal707of02.odt 1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
CRIMINAL APPEAL NO.707 OF 2002
1 Mangesh s/o. Bhimrao Basakhale,
Aged about 21 years,
R/o. Nandanwan Zopadpatti,
Jagnade Chowk, Nagpur
2 Bandu s/o. Bhimrao Barsakhale,
Aged about 26 years,
R/o. Nandanwan Zopadpatti,
Nagpur ....... APPELLANTS
...V E R S U S...
The State of Maharashtra,
through Police Station Officer,
Police Station, Kotwali,
District Nagpur ...... RESPONDENT
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Mr. R.M. Daga, Counsel for Appellants.
Mr. A.V. Palshikar, Additional Public Prosecutor for
Respondent /State.
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CORAM: ROHIT B. DEO, J.
DATE: st
21 SEPTEMBER, 2017.
ORAL JUDGMENT
Shri. R.M. Daga, the learned counsel for the appellants states that appellant 1 Mangesh expired on 24.3.2012. ::: Uploaded on - 22/09/2017 ::: Downloaded on - 23/09/2017 02:18:04 ::: apeal707of02.odt 2 The learned counsel has placed on record a photocopy of the 'Ghat Certificate' issued by the office of the Nagpur Municipal Corporation, which is taken on record and marked Exh. "X" for identification. In view of the said statement, the appeal shall stand abated as regards appellant 1. Shri. R.M. Daga, learned counsel for appellant 2 states that the conviction under section 307 of the Indian Penal Code ("IPC" for short) is recorded by the learned Sessions Judge on the premise that the appellant 1 Mangesh and the appellant 2 Bandu shared a common intention of murdering Shankarrao (PW 2). The learned counsel would further urge, that there is not even an iota of evidence on record to suggest that the appellant 2 (hereinafter referred to as "the accused") shared a common intention of committing an offence under section 307 of IPC.
2 Shri. Palshikar, the learned Additional Public Prosecutor would support the judgment impugned. The learned APP would submit that the learned Sessions Judge was justified in recording a finding that both the accused shared common intention to cause injury to PW 2 - Shankarrao. The learned APP would invite my attention to paragraph 14 of the judgment impugned which spells out the reasons of the Session Judge ::: Uploaded on - 22/09/2017 ::: Downloaded on - 23/09/2017 02:18:04 ::: apeal707of02.odt 3 underlying invoking section 34 of IPC.
3 With the assistance of the learned counsels for the accused and the State, I have carefully perused the record. I am afraid, the finding recorded by the learned Sessions Judge that the accused shared a common intention to commit offence under section 307 of IPC is absolutely unsustainable. 4 Be it noted, that the accused was also charged under section 323 of IPC for having assaulted Premraj (PW 1) and Raju (PW 5). The accused has however been acquitted of offence punishable under section 323 of IPC 5 The evidence of PW 2 - Shankarrao would reveal that the single stab injury was caused by accused Mangesh and the only role attributed to Bandu is inflicting a fist blow. That, Bandu inflicted a fist blow is brought on record as an omission. However, although, the scribe of the 161 statement was examined, the omission was not put to the scribe and remains unproved. It is not in dispute that no lethal weapon like Spear etc was discovered / recovered at the instance of the accused Bandu. The medical evidence refers to only one incised wound suffered by PW 2 ::: Uploaded on - 22/09/2017 ::: Downloaded on - 23/09/2017 02:18:04 ::: apeal707of02.odt 4 Shankarrao.
6 The central question is whether the prosecution has successfully proved that the accused Bandu shared a common intention with Mangesh of committing an offence under section 307 of IPC. The reasonings of the learned Sessions Judge as is reflected from paragraph 14 of the judgment is absolutely unsatisfactory. The fact that both Mangesh and Bandu attacked PW 2 Shankarrao ipso facto is hardly sufficient to establish that both shared a common intention of committing an offence under section 307 of IPC. It would be apposite to refer to the following observations of the Hon'ble Supreme Court in Pandurang and others ..vs.. State of Hyderabad, AIR 1955 S.C. 216 (Vol.42, C.N. 37).
"32. Now in the case of section 34 we think it is well established that a common intention presupposes prior concert. It requires a pre-arranged plan because before a man can be vicariously convicted for the criminal act of another, the act must have been done in furtherance of the common intention of them all:- 'Mahbub Shah v. Emperor, AIR 1945 PC 118 at pp. 120 & 121 (B). Accordingly there must have been a prior meeting of minds. Several persons can simultaneously attack a man and each can have the same intention, namely the intention to kill, and each can individually inflict a separate fatal blow and yet none would have the common intention required by the section because there was no prior meeting fo minds to form a pre-arrranged plan. In a case like that, each would be individually liable for whatever injury he caused but none could be vicariously ::: Uploaded on - 22/09/2017 ::: Downloaded on - 23/09/2017 02:18:04 ::: apeal707of02.odt 5 convicted for the act of any of the others; and if the prosecution cannot prove that his separate blow was a fatal one he cannot be convicted of the murder however clearly an intention to kill could be proved in his case : AIR 1925 PC 1 at pp 5 & 6(A) and AIR 1945 pc 118 (B). As their Lordships say in the later case, "the partition which divides their bounds is often very thin : nevertheless, the distinction is real and substantial, and if overlooked will result in miscarriage of justice".
"33. The plan need not be elaborate, nor is long interval of time required. It could arise and be formed suddenly, as for example when one man calls on bystanders to help him kill a given individual and they, either by their words or their acts, indicate their assent to him and join him in the assault. There is then the necessary meeting of the minds. There is a pre- arranged plan however hastily formed and rudely conceived. But pre-arrangement there must be and premediated concert. It is not enough, as in the latter Privy Council case, to have the same intention independently of each other, e.g. the intention to rescue another and, if necessary, to kill those who oppose".
"34. In the present case, there is no evidence of any prior meeting. We know nothing of what they said or did before the attack - not even immediately before. Pandurang is not even of the same caste as the others. Bilia, Tukia and Nilia are Lambadas, Pandurang is a Hatkar and Tukaram a Maratha. It is true prior concert and arrangement can, and indeed often must, be determined from subsequent conduct as, for example, by a systematic plan of campaign unfolding itself during the course of action which could only be referable to prior concert and pre-arrangement, or a running away together in a body or meeting together subsequently. But, to quote the Privy Council again.
"the inference of common intention should never be reached unless it is a necessary inference deducible from the circumstances of the case".
But to say this is no more than to reproduce the ordinary rule about circumstantial evidence, for there is no special rule of evidence for this class of case. At bottom, it is a question of fact in every case and however similar the circumstances, facts in one case cannot be used as a precedent to determine the ::: Uploaded on - 22/09/2017 ::: Downloaded on - 23/09/2017 02:18:04 ::: apeal707of02.odt 6 conclusion on the facts in another. All that is necessary is either to have direct proof of prior concert, or proof of circumstances which necessarily lead to that inference, or, as we prefer to put it in the time-honoured way, "the incriminating facts must be incompatible with the innocence of the accused and incapable of explanation on any other reasonable hypothesis". (Sarkar's Evidence, 8th edition, page
30)."
If the evidence is evaluated on the anvil of the law enunciated by the Hon'ble Supreme Court, I do not see any evidence to suggest that there was a concerted meeting of mind or pre-planning which would suggest that Mangesh and Bandu shared a common intention to cause serious injury to Shankarrao. Concededly, genesis of the incident is an altercation between Mangesh and PW 1 Premraj. Prosecution version is that Sakhubai
- PW 3 confronted the accused Mangesh when Mangesh abused PW 1 Premraj and his friend PW 5 Raju. The altercation escalated since Mangesh barged into the residence of Premraj and assaulted him. PW 2 Shankarrao who is brother in law of PW 1 Premraj returned home and attempted to rescue Premraj from Mangesh, is the prosecution version. It was then that the accused 2 Bandu arrived on the scene, is the version of prosecution witnesses. In my considered opinion, there is not even an iota of evidence on record to come to a conclusion that Mangesh and Bandu shared ::: Uploaded on - 22/09/2017 ::: Downloaded on - 23/09/2017 02:18:04 ::: apeal707of02.odt 7 common intention to commit an offence under section 307 of IPC. The assault was certainly not pre-mediated. The assault, even by the accused Mangesh, was on the spur of the moment and in the heat of passion generated by the altercation. The prosecution has not established that there was any meeting of mind prior to the incident or a concerted planning between Mangesh and Bandu to assault Shankarrao much less assault Shankarrao with intent to cause death.
7 The accused Bandu can at the most be convicted of offence under section 323 of IPC. I am informed that the accused has already spent 2 ½ months in detention. I deem it fit to set aside the conviction under section 307 of IPC and to instead convict the accused for offence under section 323 of IPC and sentence the accused to detention already undergone.
The judgment impugned is set aside.
The conviction under section 307 of IPC is set aside and instead accused 2 - Bandu is convicted of offence under section 323 of IPC and is sentenced the detention / imprisonment already undergone.
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The appeal is partly allowed and disposed of accordingly.
JUDGE Belkhede ::: Uploaded on - 22/09/2017 ::: Downloaded on - 23/09/2017 02:18:04 :::