[Cites 17, Cited by 0]
Bombay High Court
Rohit S/O. Balaji Waghmare vs The State Of Maharashtra on 17 December, 2025
2025:BHC-AUG:35804-DB
1 Judgment in Cri. Appeal Nos.525-20, 463-20 & 449-20
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL APPEAL NO.525 OF 2020
Rohit s/o Balaji Waghmare,
Age : 22 years, Occu.: Labour,
R/o.: Harangul (Bk), Latur
District : Latur .... APPELLANT
(Orig. Accused No.1)
VERSUS
The State of Maharashtra
Through : Police Inspector,
MIDC Latur Police Station,
Latur, District : Latur .... RESPONDENT
....
Mr. P. P. More, Advocate for Appellant
Mr. A. V. Lavte, APP for Respondent-State
....
WITH
CRIMINAL APPEAL NO.463 OF 2020
Pawan s/o Deelip Sarwade
s/o. Late Deelip Dyanoba Sarwade,
Age : 22 years, Occu.: Student
R/o.: Harangul (Bk), Latur
District : Latur .... APPELLANT
(Orig. Accused No.2)
VERSUS
The State of Maharashtra
Through : Police Inspector,
Investigating Officer,
MIDC Latur Police Station,
Latur, Taluka & District : Latur .... RESPONDENT
....
Mr. A. D. Ostwal, Advocate for Appellant
Mr. A. V. Lavte, APP for Respondent-State
....
2 Judgment in Cri. Appeal Nos.525-20, 463-20 & 449-20
WITH
CRIMINAL APPEAL NO.449 OF 2020
Alim @ Mangal s/o Fattulal Sayyad,
Age : 28 years, Occu.: Driver,
R/o.: Harangul (Bk, Latur
District : Latur .... APPELLANT
(Orig. Accused No.3)
VERSUS
The State of Maharashtra
Through : P.S.I.
MIDC Latur Police Station,
Latur, District : Latur .... RESPONDENT
....
Mr. Prakashsingh B. Patil, Advocate for Appellant
Mr. A. V. Lavte, APP for Respondent-State
....
CORAM : SANDIPKUMAR C. MORE AND
MEHROZ K. PATHAN, JJ.
RESERVED ON : 23/09/2025
PRONOUNCED ON : 17/12/2025
JUDGMENT :
(Per : Sandipkumar C. More, J.)
1. All these appeals have been filed by original accused No.1-
Rohit Balaji Waghmare, accused No.2- Pawan Deelip Sarwade, and
accused No.3- Alim @ Mangal s/o Fattulal Sayyad, respectively,
against the common judgment and order dated 24/06/2020 passed
by the learned Sessions Judge, Latur (hereinafter referred to as
"the learned trial Judge") in Sessions Case No. 26 of 2018. By the
impugned judgment, all the appellants have been convicted for the
3 Judgment in Cri. Appeal Nos.525-20, 463-20 & 449-20
offence punishable under Section 302 read with Section 34 of the
Indian Penal Code (for short, "IPC") and sentenced to suffer life
imprisonment and to pay a fine of Rs. 2,000/- each, with a default
clause. However, the appellants have been acquitted of the charge
under Section 504 read with Section 34 of the IPC.
2. According to the prosecution, the incident took place on the
road from Harangul Railway Station to Harangul (Bk), in front of
the pan stall of Sunil Dnyanoba Boke (PW-3), situated opposite to
Akshay Beer Bar and Pravin Beer Bar. On 29/01/2018,
Prameshwar Baburao Lakhadive (the deceased) had gone to
Akshay Beer Bar to consume liquor. All the appellants-accused
were also present in the said bar, consuming liquor on another
table. An altercation then ensued between Prameshwar and the
appellants-accused. Under the influence of alcohol, the appellants-
accused abused and assaulted Prameshwar inside the bar.
However, the owner of the bar, Sandip Bhandari (PW-7), intervened,
resolved the dispute and expelled both parties from the bar at
about 9.15 p.m.
Thereafter, Prameshwar went to the pan shop of Sunil Boke
(PW-3), but the appellants-accused followed him. They again
abused and assaulted him. The appellant-accused Pawan pushed
4 Judgment in Cri. Appeal Nos.525-20, 463-20 & 449-20
Prameshwar to the ground, while appellant-accused Rohit inflicted
a knife blow on his left thigh. Due to this blow, Prameshwar
sustained a bleeding injury and could not stand on his own. The
appellants-accused then left the spot. Prameshwar borrowed the
mobile phone of Sunil Boke (PW-3) and contacted his brother-in-
law, Subhash Manohar Siddheshware (PW-1), who is the informant
in this case. Prameshwar narrated the incident to Subhash and
called him to the spot. Accordingly, Subhash (PW-1) arrived there
and found Prameshwar lying in a pool of blood. With the help of
Sunil Boke (PW-3) and the owner of the adjoining Pravin Bar, he
initially made Prameshwar to sit on his motorcycle and started
proceeding towards the Government Hospital, Latur. However, due
to the severity of the injury, Prameshwar was unable to sit properly
on the motorcycle and therefore Subhash (PW-1) shifted him into
an autorickshaw and took him to the Government Hospital.
Prameshwar was admitted to the hospital, but during treatment he
succumbed to his injury at about 12.10 a.m. on 30/01/2018. On
the report of Subhash (PW-1), MIDC Police Station, Latur registered
Crime No.39 of 2018 against all the appellants-accused for the
offences punishable under Sections 302 and 504 read with Section
34 of the IPC. The Investigating Officer carried out the investigation
5 Judgment in Cri. Appeal Nos.525-20, 463-20 & 449-20
and filed a charge-sheet against the appellants-accused for the
aforesaid offences.
The learned trial Judge thereafter conducted the trial by
examining 14 witnesses and ultimately convicted the appellants as
mentioned above.
3. Learned counsel Mr. P. P. More, appearing for the appellant-
accused Rohit, submitted that the present case is based solely on
the alleged oral dying declaration, as Sandip Bhandari (PW-7) is
eye-witness only to the initial incident that took place inside
Akshay Beer Bar, which pertains only to an altercation between the
deceased and the accused. He pointed out that though the
prosecution examined the informant Subhash (PW-1); Yogesh (PW-
5), the son of the deceased; and Meena (PW-6) and Shakuntala
(PW-13), the sisters of the deceased, on the point of the oral dying
declaration, but all these witnesses are close relatives of the
deceased. Therefore, being interested witnesses, their evidence
should not, by itself, form the basis of conviction.
4. Learned counsel Mr. P. P. More further submitted that while
Yogesh (PW-5) stated that Prameshwar died at around midnight,
Mahesh Prakash Giram (PW-4), an inquest panch, stated that
6 Judgment in Cri. Appeal Nos.525-20, 463-20 & 449-20
Prameshwar was already dead at 10.00 p.m. According to him, the
prosecution story regarding the incident inside Akshay Beer Bar is
concocted, as there was no reason for any quarrel between the
deceased and the appellants-accused. He pointed out that the
Medical Officer, Dr. Mahesh Ambadas Giri (PW-10), admitted in
cross-examination that excessive bleeding led to the death of
Prameshwar and further stated that the injury was not on a vital
part of the body. Thus, the prosecution has failed to establish the
guilt of appellant-accused Rohit beyond reasonable doubt. He also
argued that the prosecution made no effort to obtain the CDR
regarding the telephonic conversation between the deceased and
Subhash Siddheshware (PW-1) immediately after the assault.
5. Learned counsel Mr. P. P. More further highlighted
discrepancies in the timings mentioned by Meena (PW-6) and
Shakuntala (PW-13) regarding the alleged oral dying declaration.
According to Yogesh (PW-5), Meena (PW-6) and Shakuntala (PW-
13), the dying declaration was made to them before the deceased
was admitted to the hospital, whereas Subhash (PW-1) stated that
the deceased was first admitted to the hospital and thereafter made
the dying declaration. Lastly, he expressed doubts regarding the
disclosure statement and the recovery panchanama, contending
7 Judgment in Cri. Appeal Nos.525-20, 463-20 & 449-20
that the alleged recovery was effected from an open place. He has
also relied upon following judgments:
A) Hare Ram Yadav vs. State of Bihar, 2024
DGLS(SC) 1224;
B) Lavghanbhai Devjibhai Vasav vs. State of Gujrat,
2018 DGLS(SC 438 and
C) Khuman Singh vs. State of Madhya Pradesh,
2019 DGLS(SC) 1122.
6. Learned counsel Mr. A. D. Ostwal for the appellant-accused
Pawan submitted that the prosecution has not brought on record
any reason for the scuffle between the deceased and the accused
inside Akshay Beer Bar. Moreover, there was no prior enmity
between them. In the alternative, he submitted that even if the
prosecution case is accepted in its entirety, the role attributed to
accused No.2 - Pawan is confined to merely pushing the deceased
to the ground, which, at the most, would attract an offence under
Section 323 of the IPC. He specifically pointed out that even if
accused Pawan is held guilty for such an offence, he has already
undergone three years of imprisonment in the present case. In
these circumstances, no further sentence can be imposed on
accused Pawan even if he is convicted for the act of merely pushing
the deceased. He has also relied on following judgments:
8 Judgment in Cri. Appeal Nos.525-20, 463-20 & 449-20
A) Barendra Kumar Ghosh vs. Emperor, AIR 1925
Privy Council 1;
B) Mahbub Shah vs. Emperor, AIR 1945 Privy
Council 118;
C) Shivalingappa Kallayana and others vs. State
of Karnataka, AIR 1995 SC 254;
D) Pandurang and others vs. State of Hyderabad,
AIR 1955 SC 216;
E) Kripal andothers vs. State of Uttar Pradesh,
AIR 1954 SC 706;
F) Ramashish Yadav and others vs. State of Bihar,
AIR 1999 SC 3830;
G) Nirmal Singh and others vs. State, 2011
Cri.L.J. 2258;
H) Idrish Bhai Daudbhai vs. State of Gujrat, AIR
2005 SC 1067;
I) State of Uttar Pradesh vs. Rajvir, (2007) 15 SC
545;
J) Rohtas and another vs. State of Haryana, 2020
SCC OnLine SC 1014;
K) Shri Kishan andothers vs. State of U. P., (1972)
2 SCC 537 &
L) Chellappa vs. State, Through the Inspector of
Police, (2020) 5 SCC 160 .
7. Similarly, learned counsel for accused No.3, Alim @ Mangal,
submitted that there is not a single allegation against him in the
prosecution case, either regarding the incident inside Akshay Beer
Bar or the incident that occurred in front of the pan stall of Sunil
Boke (PW-3). He pointed out that none of the witnesses has
9 Judgment in Cri. Appeal Nos.525-20, 463-20 & 449-20
attributed any role to Alim @ Mangal in the incident that took place
near the pan stall. Accordingly, he requested for clearcut acquittal
of the appellant-accused Alim @ Mangal by pointing out that he
has remained in jail for about three years without any reason.
8. On the contrary, the learned APP strongly opposed the
submissions advanced on behalf of the appellant-accused by their
respective learned counsel and supported the impugned judgment.
According to him, the death was certainly homicidal, since the first
injury that caused the death was so deep that it penetrated the
urinary bladder of the deceased. Further, the Medical Officer, Mr.
Mahesh Giri (PW-10), who conducted the post-mortem examination
on the dead body of the deceased, confirmed that the knife
recovered at the instance of accused No.1 - Rohit was capable of
causing such an injury. He pointed out that after the initial
incident in the bar, there was a meeting of minds among all three
appellants-accused, which resulted in the assault on the deceased.
The learned APP further submitted that the presence of accused
Nos. 2 and 3 clearly indicates that they too acted in furtherance of
their common intention and therefore the learned trial Judge
rightly convicted them of the offence of murder with the aid of
Section 34 of the IPC, irrespective of their individual roles in the
10 Judgment in Cri. Appeal Nos.525-20, 463-20 & 449-20
incident. He further pointed out that the informant Subhash (PW-
1); Yogesh (PW-5), his son; Meena (PW-6), the sister of the
deceased; and Shankuntala (PW-13), another sister of the deceased
and the wife of the informant, have consistently deposed regarding
the oral dying declaration made by the deceased, wherein he stated
about the assault committed by all three appellants-accused. The
learned APP also submitted that the clothes of the accused were
found to be stained with human blood and the accused offered no
plausible explanation as to how their clothes came were stained.
He emphasized that there was no lacuna in the investigation and
that the guilt of all the appellants-accused has been established
beyond reasonable doubt. He therefore prayed for dismissal of all
three appeals. He has also placed reliance on the following
judgments:
A) Mathu Kutty and another vs. State by
Inspector of Police, Tamil Nadu, 2004 aIR
SCW 7396;
B) Varikuppal Srinivas vs. State of A. P., AIR
2009 SC 1487;
C) Vijay Pal vs. State (GNCT) of Delhi, 2015
CRI.L.J. 2041 &
D) Ramaswami Ayyangar and others vs. State
of T. N., 1976 CRI.L.J. 1563.
11 Judgment in Cri. Appeal Nos.525-20, 463-20 & 449-20
9. Heard the rival submissions and also perused the entire oral
and documentary evidence on record, along with the record and
proceedings of the original Sessions Case.
10. On going through the entire material on record, it is evident
that the prosecution case rests upon the evidence of the eye-
witnesses, the witnesses before whom the deceased made an oral
dying declaration, the recovery panch before whom appellant-
accused Rohit made a disclosure statement and produced the
murder weapon and lastly, the medical and scientific evidence.
Therefore, let us now proceed to scrutinize the evidence of the
prosecution witnesses.
11. Sandip Bhandari (PW-7) is the owner of Akshay Beer Bar,
where the first incident of assault occurred inside the bar
premises. According to his evidence, all three appellants-accused
entered the bar between 8:00 p.m. and 9:00 p.m. on 29/01/2018.
Thereafter, Prameshwar (the deceased) also entered the bar.
Appellant-accused No.1 demanded liquor, assuring that he would
make payment later and for that purpose even deposited his mobile
phone with the witness. Liquor was then served to the appellants-
accused, while Prameshwar, who was seated at another table, also
12 Judgment in Cri. Appeal Nos.525-20, 463-20 & 449-20
consumed liquor and paid for it. After some time, a quarrel ensued
between the deceased Prameshwar and the appellants-accused.
Consequently, Prameshwar shifted to another table near Sandip
Bhandari (PW-7). Accused No.1 - Rohit then assaulted
Prameshwar with a chair, but Sandip (PW-7) intervened, separated
them and expelled the accused and Prameshwar from the bar. The
testimony of Sandip (PW-7) has remained unshaken even in cross-
examination. Thus, the evidence of Sandip (PW-7) clearly
establishes that altercations took place between the appellants-
accused and the deceased inside Akshay Beer Bar. His testimony is
corroborated by the evidence of Ashok Navnath Mali (PW-14), who
proved that a Motorola mobile phone was recovered from the
custody of Sandip (PW-7) under panchnama (Exh. 51), indicating
that the said phone had been handed over to him by accused No.1
while demanding liquor.
12. It is the case of the prosecution that after coming out of
Akshay Beer Bar, the deceased went to the pan stall of Sunil (PW-
3), where the incident occurred and it was allegedly witnessed by
him. It appears that he has not supported the prosecution case
regarding having actually witnessed the assault. Nevertheless, the
facts that Prameshwar, in an injured condition, sought his help for
13 Judgment in Cri. Appeal Nos.525-20, 463-20 & 449-20
hospitalization and that the deceased used his phone to call the
informant-Subhash (PW-1) from the spot of the incident, are
established through this witness. In cross-examination, Sunil Boke
(PW-3) also admitted that the accused persons were residents of his
village, Harangul and that Prameshwar had called the informant
using his mobile phone. He further admitted that with his help and
with the help of the owner of Pravin Beer Bar, the injured
Prameshwar was lifted and placed on a motorcycle. It is now well
settled that even if a witness turns hostile, the portion of his
evidence which supports the case of the prosecution is admissible,
provided it is corroborated by other reliable evidence. Therefore,
though the evidence of this witness, Sunil, is not sufficient to
establish that all the appellants-accused caused the death of
Prameshwar by assaulting him with a knife in furtherance of their
common intention, it certainly establishes that the deceased
sustained a knife injury and was taken to the hospital with his
help.
13. Now we come to the evidence of witnesses in respect of the
oral dying declaration made by the deceased as to how he
sustained the injuries. For this purpose, the evidence of Subhash
(PW-1), the informant; Yogesh (PW-5); Meena (PW-6); and
14 Judgment in Cri. Appeal Nos.525-20, 463-20 & 449-20
Shakuntala (PW-13) is vital. Admittedly, all these witnesses are
close relatives of the deceased and therefore, their evidence is
required to be scrutinized with great caution.
14. It is the case of the prosecution that, upon receiving
information from the deceased through the phone of Sunil (PW-3),
Subhash (PW-1) rushed to the spot and found the deceased in an
injured condition. As per his evidence, the deceased told him how
all the appellants-accused had assaulted him and that appellant-
accused No.1, Rohit, stabbed him on the thigh with a knife. The
evidence of Yogesh (PW-5), the son of the informant, also indicates
that on the day of the incident at about 9.30 p.m., his mother
informed him that the deceased had been assaulted in front of
Pravin Beer Bar. He has deposed that he went to the scene of the
incident along with his mother on a motorcycle and met Sunil (PW-
3) there, who informed him that the deceased had been taken to
the hospital. Thereafter, upon reaching the hospital, the deceased,
who was his maternal uncle, narrated to him the incident, stating
how the appellants-accused had abused and assaulted him
initially at Akshay Bar and how accused No.1 subsequently
assaulted him on his left thigh with a knife in front of the pan stall
of Sunil (PW-3). Nothing material has been elicited in his cross-
15 Judgment in Cri. Appeal Nos.525-20, 463-20 & 449-20
examination. Likewise, Meena (PW-6), the sister of the deceased,
has stated that the deceased Prameshwar told her about the
assault by the appellants-accused and the stabbing inflicted by
accused No.1, Rohit. Shakuntala (PW-13) has also deposed on
similar lines. Though there are minor contradictions in the
evidence of these witnesses, all of them are consistent on the
material point that the deceased narrated the incident which took
place at Akshay Bar and the subsequent assault on him by
accused No.1, Rohit, with a knife. It is the case of the prosecution
that accused No.1, Rohit, inflicted a knife blow on the left thigh of
the deceased. Significantly, all these witnesses have consistently
stated that the deceased disclosed the involvement of all three
appellants-accused in causing him grievous injury.
15. It is also to be noted that the learned APP has relied upon
various judgments referred to hereinabove and the sum and
substance of the judgments in Mathu Kutty and Another and
Varikuppal Srinivas (supra) is that a dying declaration, if found to
be coherent, consistent and trustworthy, can form the sole basis of
conviction even in the absence of corroboration. Therefore, the
evidence of all these witnesses with regard to the oral dying
declaration appears to be trustworthy and reliable.
16 Judgment in Cri. Appeal Nos.525-20, 463-20 & 449-20
16. So far as the injury sustained by the deceased is concerned,
the evidence of Dr. Mahesh Giri (PW-10) is of vital importance, as
he performed the post-mortem examination on the dead body of the
deceased. According to this witness, there was only one stab injury
on the left thigh in the inguinal region, having one end sharp and
the other blunt, directed downwards, backwards and medially,
measuring 4 cm × 2 cm. He further stated that the said injury was
cavity deep, with a collection of about 700 ml of blood and clots in
the cavity. This witness has clearly opined that the cause of death
of the deceased was hemorrhagic shock resulting from the
aforesaid stab injury. Therefore, the prosecution has conclusively
established that Prameshwar died a homicidal death.
17. The evidence of Gulab Yadav (PW-2), who is the panch
witness to the spot panchnama and the recovery, indicates that
accused Rohit made a disclosure statement and thereafter
produced the knife. Though the learned counsel for the appellants
objected to the said recovery on the ground that the knife was
recovered from an open place and that the house contained a
Muslim peer idol, suggesting that it was not the house of the
accused's uncle, but merely on these grounds the recovery cannot
be doubted, particularly when it is duly supported by the evidence
17 Judgment in Cri. Appeal Nos.525-20, 463-20 & 449-20
of the Investigating Officer. Further, the medical evidence led by
Dr. Mahesh Giri (PW-10) also suggests that the stab injury
sustained by the deceased was possible by the knife recovered at
the instance of accused No.1, Rohit. The scientific evidence further
supports the case of the prosecution, as human blood was found
on the knife as well as on the clothes of the accused, indicating
their proximity to the deceased at the time of the incident. The CA
report on record has confirmed these facts. Therefore, upon an
overall consideration of the evidence, we are of the opinion that
there is no reason to disbelieve the oral dying declaration.
Moreover, the recovery of the weapon of offence is duly established
and human blood has also been found on the clothes of the
appellants-accused. Thus, there appears to be no lacuna in the
investigation, as contended by the learned counsel for the
appellants-accused. However, the learned counsel for all the
appellants-accused has raised serious doubts regarding the
intention of the accused persons to commit the offence and their
respective roles in the incident.
18. Learned counsel for accused No.2 vehemently argued that
there was no prior enmity between the deceased and this accused
and that no specific role is attributed to accused No.2, Pawan. He
18 Judgment in Cri. Appeal Nos.525-20, 463-20 & 449-20
further submitted that even in the second incident, the allegation
against accused No.2, Pawan, is limited to the act of pushing the
deceased to the ground and that it was accused No.1 who actually
inflicted the knife blow. According to him, the act of pushing the
deceased to the ground, at the most, would attract an offence
under Section 323 of the IPC but certainly not the offence under
Section 302 of the IPC in furtherance of common intention. He
pointed out that except for the allegation of pushing the deceased,
there is no material to show the involvement of accused No.2,
Pawan, in the commission of the murder and yet he remained
incarcerated for about three years despite such limited role. In
support of his submissions, he heavily relied upon the judgment of
the Privy Council in Mahbub Shah v. Emperor, wherein it has
been held as follows:
"Common intention within the meaning of S. 34
implies a prearranged plan. To convict the accused
an offence applying S.34 it should be proved that the
criminal act was done in concert pursuant to the pre-
arranged plan. It is no doubt difficult if not
impossible to procure direct evidence to prove the
intention of an individual. It has to be inferred from
his act or conduct or other relevant circumstances of
the case. Care must be taken not to confuse same or
similar intention with common intention; the partition
19 Judgment in Cri. Appeal Nos.525-20, 463-20 & 449-20
which divide their bounds' is often very thin;
nevertheless, the distinction is real and substantial,
and if overlooked will result in miscarriage of justice.
The inference of common intention within the meaning
of the term in S. 34 should never be reached unless it
is a necessary inference deducible from the
circumstances of the case."
19. On the contrary, the learned APP also heavily relied on the
judgment of the Hon'ble Apex Court in the case of Ramaswami
Ayyangar and others, (supra), wherein following observation is
made.
"Section 34 is to be read along with the preceding
Section 33 which makes it clear that the 'act'
spoken of in Section 34 includes a series of acts as
a single act. The acts committed by different
confederates in the criminal action may be different
but all must in one way or the other participate
and engage in the criminal enterprise, for instance,
one may only stand guard to prevent any person
coming to the relief of the victim or to otherwise
facilitate the execution of the common design. Such
a person also commits an 'act' as much as his co-
participants."
Thus, the learned APP submitted that accused No.2, Pawan,
was in fact present at the time of the first incident which took place
20 Judgment in Cri. Appeal Nos.525-20, 463-20 & 449-20
inside Akshay Bar, where a quarrel had occurred between the
accused persons and the deceased. It was further submitted that
thereafter all the accused followed the deceased outside the bar
and that accused No.2, Pawan, pushed the deceased to the ground,
thereby facilitating the knife blow inflicted by accused No.1, Rohit.
However, it is important to note that there is nothing on record to
show that accused No.2, Pawan, had any knowledge that accused
No.1, Rohit, was in possession of a knife. Admittedly, no knife was
used during the first incident inside Akshay Bar, where only an
altercation took place between the accused persons and the
deceased. Though it is a fact that all three accused followed the
deceased to the pan stall of Sunil (PW-3), even then there is
nothing on record to indicate that accused No.2, Pawan, was aware
that accused No.1, Rohit, was carrying a knife. The same holds
true with respect to accused No.3, Alim.
20. Accused No.3, Alim neither participated in the incident inside
Akshay Bar nor performed any overt act in the subsequent incident
wherein the deceased was stabbed by accused No.1, Rohit. There is
absolutely no evidence against accused No.3, Alim to suggest that
he acted in furtherance of the common intention with the
remaining accused.
21 Judgment in Cri. Appeal Nos.525-20, 463-20 & 449-20
21. Admittedly, the intention to commit a crime is hidden in the
mind of the accused and is often difficult to establish by direct
evidence. However, such intention can be inferred from the conduct
and acts of the accused persons and as held by the Privy Council,
the necessary inference regarding common intention under Section
34 of the IPC must be drawn from the facts and circumstances of
each case. From the facts and evidence brought on record in the
present case, it can be gathered that accused No.3, Alim, had no
role either in assaulting the deceased or in stabbing him. So far as
the role of accused No.2, Pawan, is concerned, his act was limited
only to pushing the deceased to the ground in front of the pan stall
of PW-3. Both of them appear to be unaware of the fact that
accused No.1, Rohit, was armed with a knife. Therefore,
considering all these facts, accused Nos.2 and 3 cannot be held
liable for the murder of the deceased. Even if accused No.2, Pawan,
is presumed to be guilty of an offence under Section 323 of the IPC,
he has already remained in jail for about three years in the present
case. Hence, his conviction even for the said offence would be
unsustainable. Consequently, the acts attributed to accused No.2,
Pawan, and accused No.3, Alim, do not fall within the purview of
Section 34 of the IPC so as to connect them with the murder of the
deceased.
22 Judgment in Cri. Appeal Nos.525-20, 463-20 & 449-20
22. Therefore, it has to be examined whether accused No.1, Rohit,
alone can be held responsible for committing the offence under
Section 302 of the IPC. We have already held earlier that the
prosecution has established the involvement of the accused in the
incident. Further, the oral dying declarations made by the deceased
to the witnesses have clearly established that accused No.1, Rohit,
inflicted a knife blow on the left thigh of the deceased, as a result of
which the deceased, Prameshwar, died. The evidence of the Medical
Officer also conclusively suggests that the death of Prameshwar
was due to hemorrhagic shock caused by the stab injury.
23. However, learned counsel for accused No.1, Rohit, vehemently
argued that though the prosecution has established that the death
of the deceased was the result of the stab injury inflicted by
accused No.1, Rohit, it was a case of a single blow and there was
no prior enmity between accused No.1 and the deceased. According
to him, the injury was not inflicted on a vital part of the body and
the death of Prameshwar occurred due to excessive bleeding.
Therefore, it cannot be said that accused No.1, Rohit, had the
intention to cause the death of Prameshwar; at the most, it was an
act intended to cause injury. It was further submitted that accused
No.1 did not have the requisite knowledge, at the time of inflicting
23 Judgment in Cri. Appeal Nos.525-20, 463-20 & 449-20
the injury, that such injury would result in the death of
Prameshwar. Thus, according to the learned counsel, the act of
accused No.1 would not fall within the ambit of Section 302 of the
IPC. In the alternative, it was submitted that since accused No.1,
Rohit, has been behind bars from 2018 till date, his conviction
under Section 302 of the IPC deserves to be altered to one under
Section 304 Part II of the IPC.
In support of his submission, learned counsel relied upon the
judgment of the Hon'ble Apex Court in Hare Ram Yadav v. State
of Bihar (supra), wherein it was held that when an incident occurs
on account of a quarrel arising out of a trivial issue and the
appellant appears to have lost self-control and assaulted the
deceased with a knife in the heat of passion, the appellant would
be entitled to the benefit of the exception under Section 300 of the
IPC. Consequently, the conviction of the appellant can be converted
from Section 302 of the IPC to Section 304 Part II of the IPC.
Similar observations have been made in Lavghanbhai Devjibhai
Vasava v. State of Gujarat (supra), wherein the conviction of the
appellant under Section 302 of the IPC was converted to one under
Section 304 Part II of the IPC. In both these cases, it was held that
the incident was the result of a sudden fight without premeditation
and therefore, fell under Exception 4 to Section 300 of the IPC.
24 Judgment in Cri. Appeal Nos.525-20, 463-20 & 449-20
24. However, in the instant case, it appears that accused No.1,
Rohit, was in fact aggressive in the earlier incident which took
place inside Akshay Bar and thereafter, in the second incident, he
stabbed the deceased on his left thigh with a knife. The
prosecution has duly established the aforesaid acts of accused
No.1, Rohit, which we have also confirmed. Further, the very act of
following the deceased from Akshay Bar to the place in front of the
pan stall of Sunil (PW-3) itself indicates that accused No.1, Rohit,
was in the mood to teach a lesson to the deceased. It is pertinent
to note that the Hon'ble Apex Court, in Lavghanbhai Devjibhai
Vasava v. State of Gujarat (supra), has referred to its earlier
decision in Dhirendra Kumar @ Dhiroo v. State of Uttarakhand;
(2015) Supreme (3) 113, wherein certain parameters have been laid
down to be taken into consideration while deciding the question as
to whether a case falls under Section 302 of the IPC or Section 304
of the IPC. The said parameters are as follows:
(a) The circumstances in which the incident took place;
(b) The nature of weapon used;
(c) Whether the weapon was carried or was taken from the spot;
(d) Whether the assault was aimed on vital part of body;
(e) The amount of the force used;
(f) Whether deceased participated in the sudden fight;
25 Judgment in Cri. Appeal Nos.525-20, 463-20 & 449-20
(g) Whether there was any previous enmity;
(h) Whether there was any sudden provocation;
(i) Whether the attack was in the heat of passion ; and
(j) Whether the person inflicting the injury took any undue
advantage or acted in the cruel or unusual manner.
25. To establish an offence under Section 302 of the IPC,
intention plays a vital role. Since intention is always a hidden fact,
it has to be gathered from the acts performed by the accused. The
intention to commit murder can be inferred from the parameters
referred to herein above. In the instant case, the assault by
accused No.1, Rohit, was not on a vital part of the body such as
the chest, abdomen or head. On the contrary, it is a case of a single
stab injury, that too on the left thigh. In normal circumstances,
injury on such place would not ordinarily lead to death. Though
the case may not strictly fall under the category of an act without
premeditation, but considering the place of injury, it does not, in all
probabilities, indicate an intention on the part of accused No.1,
Rohit, to cause the death of the deceased. Had accused No.1,
Rohit, possessed such an intention, there would have been multiple
blows or blows on the vital parts of the body. The presence of only
one injury clearly indicates that his intention was, at the most, to
inflict a knife injury upon the deceased, without the knowledge
26 Judgment in Cri. Appeal Nos.525-20, 463-20 & 449-20
that such injury would, in the ordinary course of nature, lead to
the death of the deceased. Therefore, having regard to the
definition of murder under Section 300 of the IPC, we are of the
considered opinion that the criminal act committed by accused
No.1, Rohit, would fall under Section 304 Part II of the IPC rather
than Section 302 of the IPC.
26. Therefore, in view of the facts and circumstances stated
above, we are of the opinion that the learned trial court has erred
in convicting appellant-accused No.2, Pawan and appellant-
accused No.3, Alim, for the offence under Section 302 of the IPC
read with Section 34 of the IPC. Accordingly, their respective
appeals, namely Criminal Appeal No.463 of 2020 and Criminal
Appeal No.449 of 2020, are allowed. Their convictions under
Section 302 read with Section 34 of the IPC in Sessions Case No.26
of 2018 are set aside and they are acquitted of the said offence.
Their bail bonds stand cancelled and the fine amount if any, paid
by the appellants shall be refunded to them.
However, the culpability of appellant No.1, Rohit, is
maintained. His conviction under Section 302 read with Section 34
of the IPC is, however, converted to a conviction under Section 304
Part II of the IPC.
27 Judgment in Cri. Appeal Nos.525-20, 463-20 & 449-20
27. Appellant-accused No.1, Rohit, has already undergone
imprisonment from 30/01/2018 till date. Therefore, we are of the
opinion that his sentence be reduced to the period of imprisonment
already undergone. Appellant-accused No.1, Rohit, shall be
released forthwith, if he is not required in connection with any
other case.
28. All the appeals are accordingly disposed of.
( MEHROZ K. PATHAN, J.) ( SANDIPKUMAR C. MORE, J.)
VS Maind/-
