Mangesh S/O Bhimrao Barsakhale & ... vs State Of ...
2017 Latest Caselaw 7378 Bom

 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

 -------------------------------------------------------------------------------------------
          Mr. R.M. Daga, Counsel for Appellants.
          Mr. A.V. Palshikar, Additional Public Prosecutor for 
          Respondent /State.
 -------------------------------------------------------------------------------------------

                                   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.

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

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

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

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

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

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.

The appeal is partly allowed and disposed of accordingly.

JUDGE

Belkhede