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20) Now, the question is, whether it has been proved by the prosecution that the Appellants in furtherance of their common intention committed the murder of all the three.

21) In this regard PW-4 Sheetal Kudale has deposed that, since 5 to 6 years prior to the incident, she used to reside at Rashtra Bhushan Chowk, Khadakmal Aali, Pune, alongwith her in laws and three children. Deceased Sagar Lahare was her brother. Deceased Sachin Kudale was her brother-in- law (husband's brother). Sachin used to reside with them and he was doing H.C. SHIV 912.app474.17.doc the business of ladies wear at Pathari Chowk/Chal, Tulshibaug, Pune. deceased Sagar was running a fruit stall in Mandai and deceased Kailas was running a stall at Tulshibaug. Deceased-Kailas was a friend of deceased- Sachin. PW-4 has deposed that she knew all the accused.

60) However, we find it difficult to accept that the identity of A-4 was satisfactorily proved by the prosecution as one of the co-accused who had accompanied with the rest accused and shared the common intention to commit the murders. Because, in the report (Exh.73) PW-4 had not stated that she knew the A-4. Admittedly, A-4 was unknown to PW-4 and

13. AIR 2004 SCC 1443 H.C. SHIV 912.app474.17.doc PW-5. However, the prosecution has not clarified as to on what basis PW-4 has deposed that she knew the A-4. Although PW-5 has identified the A-4, he had fled away before he could be apprehended. In this background, the PW-8 should have held the TIP to confirm the identity of the A-4 as one of the co-accused. However, the TIP was not held. On the contrary, as deposed by PW-8, after apprehending the A-4 he was shown to PW-4 to confirm his involvement in the crime and then charge-sheet was filed against him. This, according to us, was not proper. Therefore, it would be risky to hold that the A-4 was the same person who was associated with the other accused at the time of the assault on the three deceased and that he had also participated in the assault.

61) In view of the above discussion, we conclude that, at the relevant time and place of the incident, first, deceased Sachin was assaulted by A-1 and his associate who was fat and wearing specs and later on all the three deceased were assaulted by A-2 and at that time, A-1, A-3 and an unknown accused were present with him.

62) Now, the question is whether the A-1 to A-3 and the unknown accused in furtherance of their common intention had committed the murder of the three. As noted from the evidence of PW-4, in the first assault, Sachin had sustained only one injury on the neck. It should be the external injury No.13, i.e., "Incised wound over, occipital region, on right H.C. SHIV 912.app474.17.doc side, 2 x 1 cm by bone deep, vertical margins clean cut, reddish." The statement made by deceased Sachin before PW-4 immediately after the first assault was in the nature of a dying declaration as against A-1 and his associate who was fat and wearing specs. Independently, the said injury was not sufficient to cause the death of Sachin in the ordinary course of nature. However, it must be noted that when Kailas met PW-4, he had also told her that A-1 had assaulted deceased Sachin. Said disclosures by deceased Sachin and Kailas were relevant u/Sec. 6 of The Evidence Act. Soon after, the first assault, all three deceased were assaulted by A-2 when A-1 was also present there. This presence is relevant u/Sec.8 of the Evidence Act. 62.1) Next, we have noted that, immediately after the first assault, when PW-4 and Kailas were enquiring with deceased Sachin, the A-1 to A-3 and the unknown accused came there and abused to PW-4, deceased Sagar and deceased Kailas. At that very juncture, A-2-Sagar Tambde took out a knife and stabbed deceased Sagar in the abdomen and the neck. However, the rest accused persons did not stop the A-2 and he continued inflicting the injuries which are 8 in numbers including one abrasion. Additionally, the attempt of PW-4 and Kailas to rescue deceased Sagar was foiled as the accused persons had pushed them and assaulted Kailas with fist and kick blows. And A-2, Sagar Tambde stabbed Kailas in the abdomen and the neck. Therefore, PW-4 again tried to intervene in the quarrel, but now, A-3 had H.C. SHIV 912.app474.17.doc stopped her threatening to stay away, otherwise, he will kill her. A-2 Sagar Tambde then stabbed Sachin in the chest and abdomen. However, the other accused persons even did not think it to intervene and stop him from causing the fatal injuries to Kailas and Sachin. Consequently, Kailas and Sachin had suffered large number of knife injuries. In other words, the rest three accused let the barbaric murder happen in their presence, thus, abetted the A-2 for the same. The testimony of PW-5 also indicates that when the A-2 was assaulting the three deceased, the rest accused were beating them. Therefore, we are of the considered view that the A-1, A-3 and the unknown accused had shared the common intention with the A-2 for committing the murder of deceased Sagar, Kailas and Sachin.

63) The conspectus of the above discussion is that A-2 was guilty of offence of Section 302 I.P.C. for committing murder of the three deceased and the A-1 and A-3 were guilty under Section 302 and 34 I.P.C. as they alongwith an unknown accused had shared the common intention with the A-2 to commit the murders. However, there is no sufficient evidence to hold that A-4 was the same unknown accused who was associated with A-1 to A-

3. Yet, the trial Court failed to appreciate the evidence on record with that perspective and therefore, erroneously held the A-4 guilty of the three murders by virtue of Section 34 I.P.C. As such, the impugned Judgment is H.C. SHIV 912.app474.17.doc suffering from infirmity to that extent and liable to be set aside, accordingly.