Hanmantu S/O Malla Atram And 2 Oths vs The State Of Mah. Thr. P.S.O., P.S. ...
2017 Latest Caselaw 8329 Bom

 apeal410.10.J.odt                         1




          IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                    NAGPUR BENCH, NAGPUR


                     CRIMINAL APPEAL NO.410 OF 2010


 1]       Hanmantu son of Malla Atram
          Aged about 42 years,
          Occ: Agriculture.

 2]       Shyambai wife of Hanmantu Atram,
          Aged about 35 years, 
          Occ: Labour & household.

 3]       Subhash son of Bapu Mandiga
          Aged about 37 years,
          Occ: Agriculture,

          All residents of Bhendvi,
          Tahsil Rajura & District
          Chandrapur.                                       ....... APPELLANTS


                                   ...V E R S U S...


          The State of Maharashtra through
          the P.S.O., Police Station Rajura,
          Tahsil Rajura, Dist. Chandrapur.                   ....... RESPONDENT
 -------------------------------------------------------------------------------------------
          Ms. Komal Mundle, Advocate holding for Shri Anjan De,
          Advocate for Appellants.
          Shri A.V. Palshikar, APP for Respondent/State.
 -------------------------------------------------------------------------------------------


          CORAM:            ROHIT B. DEO, J. 

          DATE:             2  nd  NOVEMBER, 2017.










 ORAL JUDGMENT


 1]               Exception is taken to the judgment and order dated

24.06.2010 passed by the Additional Sessions Judge, Chandrapur

in Sessions Case 67/2008, by and under which, appellant

1-Hanmantu is convicted for offence punishable under section 294

of Indian Penal Code and is sentenced to pay fine of Rs.1000/-, for

offence punishable under section 323 read with section 34 of

Indian Penal Code and is sentenced to suffer one month rigorous

imprisonment and to payment of fine of Rs.500/- and is however,

released under section 4 of the Probation of Offenders Act, and for

section 324 read with section 149 of Indian Penal Code and is

sentenced to suffer two months rigorous imprisonment and to

payment of fine of Rs.1000/- and for assaulting one Sonubai is

convicted for offence under section 324 read with section 34 of

Indian Penal Code and is sentenced to suffer rigorous

imprisonment for two years and to payment of fine of Rs.2000/-,

appellant 2-Shyambai is convicted for the offence of assaulting

Gangubai under section 323 read with section 34 of IPC and is

sentenced to suffer one month rigorous imprisonment is granted

benefit under section 4 of the Probation of Offenders Act and

appellant 3-Subhash is convicted for offence under section 324

read with section 34 of IPC and is sentenced to suffer rigorous

imprisonment for two months and fine of Rs.100/-.

2] Heard learned counsel Ms. Komal Mundle holding for

Shri Anjan De for the appellants and Shri A.V. Palshikar, the

learned Additional Public Prosecutor for the respondent-State.

3] The learned counsel Ms. Komal Mundle states that

Hanmantu Atram has expired during the pendency of the appeal.

The appeal stands abated as regards appellant 1-Hanmantu.

The learned counsel further states that appellant 2-Shyambai

Atram has undergone the period of probation and there is no

complaint of breach of the conditions of probation or of having

been involved in any untoward incident during the period of

probation. The learned counsel Ms. Komal Mundle submits that

she is challenging the judgment and order impugned to the extent

appellant 3-Subhash is convicted for offence under section 324

read with section 34 of the Indian Penal Code on the allegation of

having assaulted one Sonubai.

4] Concededly, appellant 3-Subhash has not assaulted

Sonubai. He is convicted by the learned Sessions Judge with the

aid of section 34 of the Indian Penal Code. The relevant

observations of the learned Sessions Judge read thus:

36. Applying the principles of both the cases, I am of the view that though offence u/Sect. 307 r/w 149 of I.P. Code was not proved against any of the accused, but offence u/sec. 324 of I.P. Code is proved against accused Hanumantu and for that offence accused Subhash handed over him the Axe in his hands to Hanumantu. Therefore, he assisted accused Hanumantu. Looking to the circumstances he was knowing that the Axe was demanded for assaulting and even though he had handed over that Axe, then common intention with Hanumantu is attributed to him; and, therefore, U/sec. 324 of I.P. Code he is also liable for with Hanumantu. Offence u/sec.324 r/w 34 is minor offence than to the offence u/sec.307 r/w 149. Therefore, the offence u/Sec. 324 r/w 34 of I.P. Code is proved against accused Hanumantu and Subhash.

5] I have given my anxious consideration to the evidence

of P.W.1-Sonubai, P.W.2-Gangubai, P.W.4-Jayabai and

P.W.5-Chandrakalabai who are the material witnesses to the

incident. The only role attributed to the appellant 3-Subhash is

that the deceased appellant 1-Hanmantu took an axe from

Subhash and assaulted Sonubai. Ms. Komal Mundle, the learned

counsel for the appellants would submit that the evidence on

record is grossly adequate to suggest that there was any prior

meeting of mind between Hanmantu and Subhash and the learned

Sessions Judge fell in serious error in convicting appellant

Subhash with the aid of section 34 of the Indian Penal Code.

The learned counsel would invite my attention to the following

observations of the Hon'ble Supreme Court in B Parichhat vs. State

of Madhya Pradesh 1971 LawSuit (SC) 537 in paragraph 22 which

reads thus:

22. Section 34 of the Indian Penal Code will not be attracted unless first it is established that a criminal act was done by several persons, second, that there was a common intention and a pre-arranged plan to commit an offence and third that there was participation in the commission of the offence in furtherance of that common intention. The High Court was wrong in convicting the appellants Parichhat, Sunnu and Sitaram under section 326 read with section 34 of the Indian Penal Code. Their convictions are set aside. The High Court in setting aside the acquittal of Parichhat, Sunnu and Sitaram should have considered the enmity between Dharam Ballabh and Parichhat, the case instituted by Durji against Dharam Ballabh, the allegations made by Parichhat against Dharam Ballabh, the hostile and unsympathetic attitude of Ram Lakhan Sharma in investigating the complaint of Durji against Dharam Ballabh. If the appellants could not be convicted under sections 147, 447 and 302 read with section 149 of the Indian Penal Code and they were acquitted the acquittal could not be set aside by the High Court unless the Sessions Court in acquitting the accused was palpably wrong or took an erroneous view or committed grave injustice. The setting aside the acquittal by the High Court was itself erroneous and

wrong. The High Court was also wrong in convicting the appellants under S. 326 read with section 34 of the Indian Penal Code. Merely remaining with Gangu at the time of cutting the crop will not justify any application of section 34 of the Indian Penal Code with regard to the murder of Kashiram.

6] The learned counsel is justified in contending that

there is absolutely no evidence on record to suggest that

Hanmantu and Subhash shared common intention of assaulting

Sonubai. Even if the entire evidence is accepted at face value, the

fact that at the instance of Hanmantu, Subhash handed over the

axe which was in his possession, in the factual matrix, would not

lead to an inference that Hanmantu and Subhash shared a

common intention of causing hurt to Sonubai. It would be

apposite to refer to the judgment of the Hon'ble Supreme Court in

Pandurang and others .vs. State of Hyderabad, AIR 1955 S.C. 216

(Vol.42, C.N. 37), the relevant observations of which read thus:

"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 of 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 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 a 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 & 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. Bhilia, 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 the action which could only be

referable to prior concert and pre-arrangement, or a running away together in a body or a 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 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)."

Be it noted that, it is not proved by the prosecution

that the appellant Subhash did any overt act, other than handing

over the axe to the appellant Hanmantu, to suggest that he shared

a common intention with Hanmantu of causing hurt to Sonubai.

Indeed, it is not even the case of the prosecution, that there was

any prior meeting of mind or any pre-arranged plan suggesting

that Hanmantu and Subhash shared a common intention of

causing hurt to Sonubai.

7] The judgment and order impugned, to the extent

appellant 3-Subhash is convicted for offence punishable under

section 324 of IPC read with section 34 of IPC is set aside.

The appellant 3-Subhash is acquitted of the said offence. The bail

bond of accused-Subhash shall stand discharged.

  8]               The appeal is partly allowed.




                                                 JUDGE



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