Dayal S/O Maroti Lakhote And Anr. vs The State Of Maharashtra
2003 Latest Caselaw 607 Bom

JUDGMENT

R.K. Batta, J.

1. The appellants along with two others were tried for murder of Rashtrapal Jawade. The appellants are original accused Nos. 2 and 3. The other accused, who were tried with them, that is original accused Nos. 1 and 4, were acquitted. The appellants challenge their conviction and sentence in this appeal.

2. The prosecution case, in brief, is that appellant No. 2 Kishor caught hold the waist of Rashtrapal, took him towards nullah and pushed him on the ground and appellant No. 1 Dayal assaulted Rashtrapal with iron rod five times. The Medical Officer found multiple abrasions on both the sides of forehead of the deceased, as also lacerated wound of about 3x1x1 cm. over left side of occipital region besides extensive fractures, to which we shall refer later. The deceased died as a result of the said injuries. In all eleven witnesses have been examined and the appellants have been convicted for murder under Section 402 of the I.P.C. and sentenced to suffer life imprisonment. The period of detention undergone during the trial has been set-off.

3. The learned Advocate for appellants urged before us that the evidence of two eye-witnesses, namely P.W. 1 Vilas and P.W. 2 Kausalyabai, cannot be believed in the light of the material omissions in their statement before the police and that the evidence of P.W.3 Sachin cannot be relied upon for want of corroboration from any independent quarter. It is also submitted by him that the defence witness examined by the appellants has been able to establish that the dead body of the deceased was lying near the heap of stones and there were blood-stains on the stones and in the light of this evidence, the medical evidence to the effect that injury No. 2, which was a fatal injury, could be caused due to fall, would go to show that the deceased had in fact died on account of fall on the stones. It is, therefore, contended that both the appellants deserve to be acquitted. Alternatively, it is contended that in so far as appellant Kishor is concerned, the prosecution has failed to prove that he had common intention to kill the deceased and as such in the absence of common intention, the mere fact of catching hold of the waist of Rashtrapal and throwing him on the ground may at the most bring his action within the ambit of Sections 323 or 352 of the I.P.C. It has been urged that the mere fact that appellant Kishor caught hold of the waist of the deceased and threw him on the ground would not by itself bring the case within the ambit of Section 44 of the Penal Code. In support of his submissions, the learned Advocate for appellants placed reliance on the judgments of the Apex Court in Dhian Singh v. State of Punjab , and Ramashish Yadau v. State of Bihar .

4. The learned Additional Public Prosecutor for respondent/State, on the other hand, submitted that the testimony of eye-witness Sachin (P.W. 3) has remained unshaken and the prosecution, with the help of evidence of P.W. 3, has been able to establish the charge of murder against the appellants. According to him, the common intention is duly proved on the basis of the fact that both the accused were together-one of them, namely appellant No. 2 Kishor caught hold of the waist of Rashtrapal and he took him towards nullah and pushed him on the ground and appellant No. 1 Dayal assaulted Rashtrapal with iron rod five times. Relying on the judgments of the Apex Court in Suresh and Anr. v. State of U.P. , and State of U.P.

v. Jhinkoo Nai , it has been urged that the appeal be dismissed.

5. The prosecution has in fact examined three eye-witnesses. The first eye-witness is P.W. 1 Vilas. Though, in his examination-in-chief, he spoke of assault by both the appellants on Rashtrapal, yet the same was not found in his police statement, with which he was confronted and the improvement on material particulars made by this witness was duly proved through the I.O. The result is that the evidence of P.W. 1 Vilas cannot be relied upon.

6. The second eye-witness examined by the prosecution is P.W. 2 Kausalyabai, who is the mother of P.W. 3 Sachin. Though she stated in her examination-in-chief that accused Kishor caught hold of the waist of Rashtrapal and pushed him on the ground and accused Dayal assaulted Rashtrapal with iron rod as also that accused Kishor, who was having an axe, had also assaulted Rashtrapal with the said axe, the said facts were not found in her police statement, with which she was confronted. The I.O. proved the improvements on material particulars. In fact, in her statement before the police, it is stated that accused Dayal had assaulted Rashtrapal with iron bar, yet neither the Trial Court Judge nor the Public Prosecutor were diligent enough to notice this fact in the police statement and even improvement amounting to contradiction in this respect was also marked by the Trial Judge. Be that as it may, the case of this witness Kausalyabai in her statement was that she was informed about the assault by P.W. 3 Sachin, but P.W. 3 Sachin nowhere states in his deposition in Court that he had informed his mother about the assault. On the contrary he says that after the assault, her mother came on the spot. In view of this, we find it difficult to rely upon the evidence of P.W. 1 Kausalyabai, upon which the reliance was placed by the Trial Court.

7. Coming to the third eye-witness Sachin, he had stated that accused Kishor caught hold of the waist of Rashtrapal, took Rashtrapal towards nullah, moved round Rashtrapal and pushed him on the ground and accused Dayal assaulted Rashtrapal with iron rod. He further stated that accused Dayal assaulted Rashtrapal with iron rod five times. There is practically no cross-examination on this material deposition of this witness Sachin and the evidence of Sachin has thus totally remained unshaken during cross-examination and there is no reason whatsoever to discard this categorical unshaken testimony. The learned Advocate for appellants submitted before us that it was suggested to this witness that Rashtrapal was under the influence of alcohol and he fell twice on the stone. The viscera report does not speak of any consumption of alcohol, nor the contents of stomach found during the post-mortem examination speak of anything in this respect. The theory profounded by the defence, therefore, is without any basis. The learned Advocate for appellants urged before us that the defence witness examined by the defence has categorically stated that the deceased was lying near the stones and blood was found on the stones and in the light of the medical evidence, the theory of fall cannot be ruled out. It is also urged by him that the prosecution has not Challenged this defence evidence. Firstly, we would like to point out that in the spot panchanama, no stone muchless stones with blood-stains is found at the scene of offence. Secondly, we have already discarded the theory of fall of Rashtrapal on account of consumption of liquor, as put forward by the defence. Thirdly, the medical evidence is to the effect that injury No. 2 in column No. 17 is possible by forcible fall on big stone or rock. There is absolutely no material or foundation for this possibility inasmuch as neither there is evidence to show that the deceased had forcibly fallen on the big stone or rock nor any big stone or rock was found on the spot where the deceased was found dead. Therefore, the theory of fall has to be totally discarded.

8. Dr. Jyoti (P.W. 10) found multiple abrasions on both the sides of forehead of the deceased, as also lacerated wound of about 3x1x1 cm. over left side of occipital region. The corresponding internal injuries found are :

Skull was fracture, fracture line was present on right side of glabela, involving right frontal bone, right parietal bone, up to right side of occipital bone. Another fracture was found which was parallel to the above fracture, involving right temporal bone 1 "apart. On left side fracture line was present involving left temporal bone up to left border of occipital region

The probable cause of death, according to the doctor was shock due to head injury. During the cross-examination, it is stated that the injury No. 1 mentioned in column No. 17 was simple in nature. In cross-examination, he further submitted that it is rarely possible that injury No. 2 in column Nos. 17 and 19 can be possible by fall on stone when a person is running.

9. In view of the above, we are of the opinion that the prosecution has been able to prove that appellant No. 2 Kishor caught hold of the waist of Rashtrapal, took him towards mullah, moved round Rashtrapal and pushed him on the ground and appellant No. 1 Dayal assaulted Rashtrapal with iron rod five times. The evidence that appellant Dayal assaulted Rashtrapal with iron rod is totally established and gets corroboration from the evidence of Dr. Jyoti (P.W. 10), to which we have already referred above.

10. The question, which remains to be determined, is whether appellant Kishor entertained- common intention so as to bring his case within the ambit of Section 34 read with Section 302 of the I.P.C. In our opinion, the facts do reveal that both the appellants were together. Appellant Dayal was having iron rod. Appellant Kishor caught hold of the waist of Rashtrapal, took him towards nulla, moved round Rashtrapal and pushed him on the ground and appellant Dayal assaulted Rashtrapal with iron rod five times. There is nothing to show that appellant Kishor at any stage of assault either tried to prevent the assault or exhibited any intention showing that co-accused appellant Dayal should discontinue the attack with iron rod. The Apex Court in State of U.P. v. Jhinkoo Nai , has quoted from its earlier judgment in H.P. Thakore v. State of Gujarat , and emphasis the following:

...Lord Sumner's classic legal shorthand for constructive criminal liability, expressed in the Miltonic verse. 'They also serve who only stand and wait' a fortiori embraces cases of common intent instantly formed, triggering a plurality of persons into an adventure in criminality, some hitting, some missing, some splitting hostile heads, some spilling drops of blood. Guilt goes with community of intent coupled with participatory, presence or operation. No finer juristic niceties can be pressed into service to nullify or jettison the plain punitive purpose of" the Penal Code.

(Emphasis supplied)

11. The Apex Court in Suresh and Anr. v. State of U.P. , has laid down:

The dominant feature for attracting Section 34 of the I.P.C. is the element of participation in absence resulting in the ultimate "criminal act". For appreciating the ambit and scope of Section 34, the preceding Sections 32 and 33 have always to be kept in mind. Under Section 42 acts include illegal omissions. Section 33 defines the "act" to mean as well a series of acts as a single act and the word "omission" denotes as well a series of omissions as a single omission. The 'act' referred to in the later part of Section 34 means the ultimate criminal act with which the accused is charged of sharing the common intention. The accused is. therefore, made responsible for the ultimate criminal act done by several persons in furtherance of the common intention of all. The section does not envisage the separate act by all the accused persons for becoming responsible for the ultimate criminal act. If such an interpretation is accepted, the purpose of Section 34 shall be rendered infructuous. Participation in the crime in furtherance of the common intention cannot conceive of some independent criminal act by all accused persons, besides the ultimate criminal act because for that individual act law takes care of making such accused responsible under the other provisions of the Code. What is required under law is that the accused persons sharing the common intention must be physically present at the scene of occurrence and be shown not to have dissuaded themselves from the intended criminal act for which they shared the common intention. Culpability under Section 44 cannot be excluded by mere distance from the scene of occurrence. The presumption of constructive intention, however, has to be arrived at only when the Court can, with judicial servitude, hold that the accused must have preconceived the result that ensued in furtherance of the common intention.

Section 34 of the I.P.C. recognises the principle of vicarious liability in criminal jurisprudence. It makes a person liable for action of an offence not committed by him but by another person with whom he shared the common intention. It is a rule of evidence and does not create a substantive offence. The section gives statutory recognition to the commonsense principle that if more than two persons intentionally do a thing jointly, it is just the same as if each of them had done it individually. A common intention presupposes prior concert, which requires a prearranged plan of the accused participating in an offence. Such pre-concert of preplanning may develop on the spot or during the course of commission of the offence but the crucial test is that such plan must precede the act constituting an offence. Common intention can be formed previously as in the course of occurrence and on the spur of the moment. The existence of a common intention is a question of fact in each case to be proved mainly as a matter of interference from the circumstances of the case.

In the light of the above proposition of law, the reliance on two rulings placed by the learned Advocate for the appellants would not help the case of the appellants. The case of Dhian Singh, cited supra, has been decided on the facts of the said case and no proposition of law as such has been laid down therein. In Ramashish Yadav's case, cited supra, the facts were that two of the accused came and caught hold of the deceased and it was thereafter only that two other co-accused came and gave blows. It is in these circumstances that it was held therein that the first two co-accused did not share common intention with the later.

12. For the aforesaid reasons, we do not find any merit in this appeal. The appeal is hereby rejected.