Bombay High Court
Raja Ishwar Shinde vs The State Of Maharashtra on 28 September, 2021
Bench: S.S. Jadhav, S. V. Kotwal
apeal-852.15, 52.14.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.852 OF 2015
Mr. Raja Ishwar Shinde
Age Adult, Occ.: Wage Earner,
R/o. Kati, Tal. Indapur,
District : Pune.
At present detained at Kalamba Central Appellant
Prison, Kolhapur. ... (Orig. Accused No.1)
V/s.
The State of Maharashtra
Through P.S.O. Mandrup Police Station
Tal. South Solapur, District: Solapur
Vide C.R. No.75/2013 ... Respondent
WITH
CRIMINAL APPEAL NO.52 OF 2014
Mr. Vijay Subrao @ Rupchand Kale
Age Adult, Occ: Wage Earner,
R/o. Dhayati, Tal. Sangole,
District : Solapur.
At present detained at Kalamba Central Appellant
Prison, Kolhapur. ... Orig. Accused No.4)
V/s.
The State of Maharashtra
Through P.S.O. Mandrup Police Station
Tal. South Solapur, District : Solapur.
Vide C.R. No.75/2013. ... Respondent
-------------------
Ms. Rebecca Gonsalvez a/w Ms. Chandni Chawla i/b. Dr. Yug Mohit
Chaudhary for the Appellant in Apeal/852/2015.
Mr. P.G. Jagdale a/w Mr. Shripad Jagdale for the Appellant in
Apeal/52/2014.
Ms. S.V. Sonawane, APP for the Respondent - State.
---------------------
pmw 1 of 13
::: Uploaded on - 29/09/2021 ::: Downloaded on - 29/09/2021 23:59:08 :::
apeal-852.15, 52.14.doc
CORAM : SMT. SADHANA S. JADHAV &
SARANG V. KOTWAL, JJ.
JUDGMENT RESERVED ON : 15.09.2021
JUDGMENT PRONOUNCED ON : 28.09.2021
JUDGMENT : (Per Sadhana S. Jadhav, J.)
1. The appellants herein are convicted for the offence
punishable under section 302 r/w 34 of Indian Penal Code by the
Additional Sessions Judge, Solapur in Sessions Case No.319 of 2013
vide judgment and order dated 24 th December 2013. Hence, these
appeals.
2. Such of the facts necessary for the decision of these appeals
are that the appellants herein belong to the Pardhi Community. There
is a custom in the said community that a bridegroom has to pay bride
price at the time of marriage i.e. the father of a bride reserves the right
to demand the bride price. The daughter of accused no.1 - Priyanka
was married to Shravan who was deaf and mute. They were blessed
with two sons and one daughter. Shravan used to earn living by
working as a labour. At the time of marriage of Shravan, the bride price
was settled at Rs.11,000/-. The parents of Shravan had paid
Rs.11,000/- to the father of the bride i.e. accused no.1 Raja. It is the
pmw 2 of 13
apeal-852.15, 52.14.doc
case of the prosecution that subsequently accused no.1 was demanding
further dowry of Rs.25,000/- and upon failure to pay the same, the
accused no.1 conspired with the other accused and in collusion, had
caused homicidal death of Shravan.
3. On 26th May 2013, Priyanka - wife of Shravan lodged a
report at Mandrup Police Station alleging therein that her husband was
killed by her father Raja in collusion with Philim (accused no.2), Dinya
(accused no.3) and Vijay Rupchand Kale - Appellant in Criminal
Appeal No.52 of 2014 (accused no.4). After investigation, chargesheet
was filed. Accused Dinya was tried separately in Sessions Case No.161
of 2006 at the trial. The prosecution has examined two witnesses i.e.
the complainant and the investigating officer in that case and the
learned Additional Sessions Judge, Solapur vide judgment and order
dated 24th November 2016 has acquitted the accused Dinya of all the
charges levelled against him. The accused Philim was reported to be
absconding.
4. At the trial, in the present case, prosecution has examined
as many as 7 witnesses to bring home the guilt of the accused. The
case of the prosecution rests on the evidence of P.W.1 - Priyanka - wife
pmw 3 of 13
apeal-852.15, 52.14.doc
of the deceased, P.W.2 - Dr. Shrikant Supekar, the Doctor had
performed autopsy on the dead body of the deceased. P.W.3 -
Shantabai Gopu Bhosale, mother of the deceased and P.W.7 - Vinod
Ghuge, the Investigating Officer.
5. P.W.1 has deposed before the Court in consonance with the
FIR. According to her, accused no.1 Raja i.e. her father had made a
phone call to her brother-in-law Dhanya and demanded Rs.25,000/- as
an additional bride price. That, few days prior to the incident, the
accused had kidnapped P.W.1 in order to press their demand of
Rs.25,000/- and also threatened that in the eventuality, the amount
was not paid they would not release P.W.1. At that juncture, the parents
of Shravan had shown their willingness to fulfill the demand. She was
therefore released. P.W.1 was brought to Sangola Town. Her in-laws
had paid Rs.15,000/- and agreed to pay the remaining amount of
Rs.10,000/- within 15 days. P.W.1 was taken to her matrimonial abode
by her in-laws and her brother-in-law. Thereafter, the accused insisted
upon the in-laws of P.W.1 to pay the remaining amount of Rs.10,000/-
within two days.
6. On 25th May 2013, the accused had allegedly made a call to
pmw 4 of 13
apeal-852.15, 52.14.doc
the brother of Shravan demanding the remainder amount at the
earliest. They had also threatened of dire consequences upon failure to
pay the amount. On the day of the incident, P.W.1 and her family had
retired for sleeping. The family was sleeping on open ground as their
hut was set on fire. All the four accused had been to the farm armed
with axe. They had mounted three blows on the neck of Shravan.
Shravan was deaf and mute and, therefore, he could not raise any
cries. P.W.1 had seen the incident, however, before she could react, the
damage was done. Since, they were sleeping near the electricity pole
erected in front of their premises they could see the whole incident and
identify the accused. P.W.1 then claims to have called upon her
maternal uncle from the neighbouring village. They approached the
Police Station and lodged a report at 4.30 am. P.W.1 has proved the
contents of the FIR and the same is marked at Exh.13. According to
her, the accused no.1 happens to be her father and accused no.4 - Vijay
happens to be the husband of her maternal aunt. It is elicited in the
cross-examination that accused no.1 is the original resident of Village
Kati, Taluka Indapur. In the said community, the talks of bride price are
settled in the presence of panchas. According to her, her in-laws had
paid dowry of Rs.15,000/- to accused no.1 - Raja. She has admitted to
pmw 5 of 13
apeal-852.15, 52.14.doc
have not disclosed the incident of abduction to other members of her
community. According to her, there was availability of light at the time
of incident. She has reiterated that at the time of occurrence, she could
see the incident as it was a moonlit night and there was sufficient
availability of light. She has denied the suggestion that Shravan was
killed by his brother Dhanu and father Gopu Bhosale. She has also
denied the suggestion that she had illicit relation with her brother-in-
law and that her husband had set the hut on fire. As far as the incident
is concerned, P.W.1 deposed that accused no.1 Raja had placed a
dagger on her neck and at that time, the accused Dinya, Vijay, Philim
and Raja had mounted blows upon her husband. P.W.1 has admitted in
the cross-examination that her father had abandoned her biological
mother when she was one year old and had married to another woman
thereafter and he had not met P.W.1 till her marriage. She was brought
up by her grandfather who happens to be the brother of her mother-in-
law. Her marriage with Shravan was child marriage i.e. she was
married when she was 7 years old. Half of her dowry amount was paid
to Dagadu, her maternal uncle who looked after her, post the demise of
her grandfather. Her maternal uncle Dagadu, had sold her to the family
of deceased on acceptance of Rs.7,000/-. Her father-in-law had
pmw 6 of 13
apeal-852.15, 52.14.doc
accompanied her to the Police Station when she lodged the FIR and
she had signed the FIR at the request of her father-in-law.
7. The deposition of P.W.3- Shantabai Bhosale is corroborating
the evidence of P.W.1 in all material particulars. As far as the incident is
concerned, according to her, since the hut was set on fire, they were all
sleeping on the open ground. In the early hours of 2.00 to 2.30 am, the
accused no.1 had put a dagger on the neck of her daughter-in-law and
rest of the accused had assaulted her son Shravan with axe. She tried
to rescue her son but in vain. She claims to have seen the incident in
the flash of streetlight adjacent to her premises because the pole of
streetlight is located adjacent to her open premises. It is reiterated in
the cross-examination that she was indeed sleeping in the open
premises at the spot of occurrence. She has admitted certain criminal
antecedents of the deceased Shravan.
8. P.W.2 - Dr. Shrikant Supekar performed autopsy on the
dead body. He found the following injuries :-
"(1) CLW size 15x4x7 cms extending from right cheek lower
side to chin.
(2) CLW size 10x4x7 cms over neck just above midline
extending to chin.
(3) CLW size 20x5x7 cms neck midline extending to chest.
pmw 7 of 13
apeal-852.15, 52.14.doc
(4) Laceration size 8x8x2 cms over left wrist dorsal aspect."
9. Pancha to the recovery of axe was hostile. Scene of offence
panchanama at Exh.26/C indicates that the electric pole was erected at
a distance of 10 ft. from the scene of occurrence and the connection to
the tube-light was functional at the relevant time.
10. P.W.7 - Vinod Ghuge happens to be the Investigating
Officer. He has deposed about the steps taken by him in the course of
investigation. According to him, an axe was recovered at the instance
of accused no.1 Raja. He admits to have not sent the seized axe to the
chemical analyzer. Moreover, the panchas have turned hostile. He
admits to have not sent a letter to the Revenue Authority to prepare
the sketch of scene of offence.
11. This is a case of direct evidence and there are two
eyewitnesses to the incident. P.W.1 happens to be the daughter of
accused no.1 and there was no reason for her to falsely implicate her
own father. It can be seen that in order to restrain her or obstruct her
from interfering with their plan in eliminating Shravan, the accused
no.1 had placed the dagger on her neck. He shared a common
intention with accused no.2.
pmw 8 of 13
apeal-852.15, 52.14.doc
12. The learned counsel for the accused no.1 - appellant Raja
vehemently submits that the accused no.1 did not share any common
intention with the accused no.2 in causing the homicidal death of
Shravan. It can only be submitted that it would only be a case of
criminal intimidation and not a case under section 302 r/w 34 of
Indian Penal Code. The learned counsel has further submitted that
even if the eyewitnesses are believed, no overt act is attributed to
accused no.1 in the commission of the murder of Shravan.
13. The learned counsel has placed reliance upon the
judgments of the Apex Court in the case of Jagannath and Ors. Vs.
State of U.P.1, the Apex Court has observed thus :-
"8. Undoubtedly the above criminal acts of the three
appellants, which must be held to be conclusively proved in
view of the concurrent findings of the learned courts below,
clearly indicate that they shared some common intention
with the other accused but then the question is whether
their common intention was to commit the murder. Besides
the evidence of PW1 of their having assaulted the deceased
with lathis - which we have found to be unacceptable -
there is no other evidence, to indicate, that they wanted the
deceased to be done away with. It cannot be gainsaid,
however, that their acts facilitated the stabbing of the
deceased by Badri Narain but there is nothing whatsoever
to indicate that the appellants knew that he intended to kill
him though they must have anticipated that he would
assault the deceased with the spear that he was carrying. In
that view of the matter, we conclude that though the
1 1995 Supp (1) SCC 564
pmw 9 of 13
apeal-852.15, 52.14.doc
common intention of the appellants to cause the death of
Shyam Narain has not been established beyond all
reasonable doubts, if has been conclusively established that
their common intention was to cause injuries to the
deceased with a deadly weapon, namely, spear."
14. We have perused the judgment. It is in the facts of that case
wherein the quarrel was in fact going on between two other persons
and the deceased was assaulted by an accused who was unconcerned
with the said incident and therefore, the Apex Court had held that
"they had not shared common intention and the attack was with
sticks". The Court had disbelieved eyewitness version. The facts are not
applicable to the present case.
15. The learned counsel has placed reliance upon the judgment
in the case of Arun Vs. State by Inspector of Police 2. The said judgment
is also in the specific facts of that particular case wherein the Supreme
Court had held that the murderous assault on the deceased was an
individual act and therefore, it would be necessary to ascertain as to
whether there was prior meeting of minds. Implicit reliance is being
placed on the judgment of the Apex Court in the case of Sukhbir Singh
Vs. Kirtan Singh and Ors.3 which is again in the facts of that particular
case.
2. (2008) 15 SCC 501
3 2005 SCC (Cri.) 1624
pmw 10 of 13
apeal-852.15, 52.14.doc
16. Per contra, the learned APP submits that, in fact, it was
accused no.1 who was demanding the bride price and the accused no.2
was helping him to accomplish his job. That, there was intimidation to
such an extent that P.W.1 could not save her husband. Accused no.1
had protected his daughter and eliminated his son-in-law.
17. The learned counsel in Criminal Appeal No.52 of 2014 has
argued that this is a case of false implication and a case of no evidence.
According to him, the accused had not even visited the scene of
offence. A false story is concocted by P.W.1 and that is evident from the
fact that she had not lodged any complaint in respect of her abduction
for demanding the money from Shravan. In that eventuality, the
offence would have been under section 364A of Indian Penal Code. It
is submitted that the accused deserves to be acquitted of all the
charges.
18. The facts in the case of Raju Ram Vs. State of Bihar4, are
similar to the facts of the present case, wherein the appellants were
one of the three accused persons convicted for offence punishable
under sections 302, 387 r/w 34 of IPC. The Supreme Court had
4 (2005) SCC (Cri.) 1627
pmw 11 of 13
apeal-852.15, 52.14.doc
observed "we found it extremely difficulty to de-cipher the intention of
the third accused from that of the other two persons for the purpose of
de-escalating the penal liability to be fastened on him. In the result, we
dismiss the appeal."
19. We have perused the records to appreciate as to whether
the intention of accused no.1 was only intimidation or he shared
common intention with accused no.2.
20. In the case of Rajesh Govind Jagesha Vs. State of
Maharashtra5, the Supreme Court held that "no pre-meditation or
previous meeting of mind is necessary for the applicability of Section
34 of the IPC. The existence of common intention can be inferred from
the attending circumstances of the case and the conduct of the parties.
No direct evidence of common intention is necessary. For the purposes
of common intention even the participation in the commission of the
offence need not be proved in all cases. The common intention can
develop even during the course of an occurrence. The circumstances of
the present case clearly show that the accused persons had come on
spot with deadly weapons and inflicted injuries on Joy Kutty, obviously
with the intention of causing his death."
5 1999 Supp (4) SCR 277
pmw 12 of 13
apeal-852.15, 52.14.doc
21. It is clear from the attending circumstances that there was
a meeting of minds between the accused nos.1 and 2 since accused
no.2 had no personal grudge against Shravan. It is an admitted
position that accused no.2 had accompanied accused no.1. They both
were armed with deadly weapons. Accused no.1 had intimidated his
daughter with a deadly weapon only to facilitate the brutal assault on
Shravan. Hence, section 34 of IPC is clearly attracted. In view of the
discussion hereinabove, we have no hesitation to accept the
prosecution case that the accused had shared a common intention to
commit the murder of Shravan. We, therefore, pass the following
order:-
ORDER
(i) The Appeals are dismissed;
(ii) The conviction and sentence passed by the learned
Additional Sessions Judge, Solapur in Sessions Case No.319
of 2013 vide judgment and order dated 24 th December
2013 is hereby confirmed;
(iii) The Appeals are disposed of on above terms.
(SARANG V. KOTWAL, J) (SMT. SADHANA S. JADHAV, J)
pmw 13 of 13
