Full Judgment Text
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CASE NO.:
Appeal (crl.) 772 of 2005
PETITIONER:
Kishore Eknath Nikam
RESPONDENT:
State of Maharashtra
DATE OF JUDGMENT: 22/09/2006
BENCH:
G.P. Mathur & A.K. Mathur
JUDGMENT:
JUDGMENT
A.K. MATHUR, J.
Leave granted. This appeal is directed against an order passed by the
Division Bench of the High Court of Judicature at Bombay in Criminal Appeal
No. 727 of 1999 whereby the High Court has confirmed the conviction and
sentence of the accused appellant under Section 302 read with 34 of Indian
Penal Code and sentenced him to suffer imprisonment for life each and to
pay a fine of Rs. 5,0007 each, in default to suffer rigorous imprisonment -
for six months each. He was also sentenced to suffer rigorous imprisonment
for three months each and to pay fine of Rs. 5007 each, in default to
suffer simple imprisonment for six months under Sections 504 and 562 read
with 34 of Indian Penal Code. Aggrieved against the order passed by the
Bombay High Court this appeal was filed.
Brief facts giving rise to this appeal are that on 11.4.1998, Mahendra
Vishwasrao Bhatge (PW1), Prashant (deceased) and Uttam Kumar had their
dinner at Maruti Hotel in Laxminpuri. After their dinner, they returned to
Azad Chowk. PW -1 and deceased sat on the steps in front of one shop styled
as "Shanti Plywood". Meanwhile, Uttam left the spot. Vijay Bapusaheb Piste
(PW2) and Bandu @ Vijay Dynandeo Gata (PW3) were sitting inside of one
cement godown nearby. Meanwhile, Jagdish Prabhakar Babar (A1), Kishore
Eknath Nikam (A2) and Arun Hulswar (A3) came from the side of Ghate
Hospital. A1 was on scooter whereas A2 and A3 were on motorcycle. They were
proceeding towards Bindu Chowk. When they saw the deceased and PW1 -
complainant sitting on the steps of ‘Shanti Plywood’ they came back towards
them and A1 gave a call to the deceased asking to come near him. Deceased
reached near A1. They had a discussion among themselves and thereafter the
discussion turned into exchange of hot words and they started to give
abuses to each other. PW1 tried to separate the quarrel and persuaded not
to quarrel with the deceased. Meanwhile PW2 and PW3 who were sitting in the
godown came out after hearing the loud voice of quarreling of A1. A1 took
out a knife from the side of his waist and rushed towards deceased to give
him a blow of the same. To avoid such fatal mishap PW2 and PW3 rescued the
deceased from the attack of the A1 and they could succeed in pushing the
deceased from that place. Then the PW1 rushed to the godown to get some
help but he found none. He took an electric tube and a piece of bamboo from
the godown. He came out with the electric tube and piece of bamboo from the
godown. Meanwhile, he found that the quarrel has shifted before the Audi
Pan Shop. PW1 complainant was about to reach near A1, A1 gave a knife blow
in the abdomen of the deceased and A2 and A3 were standing on the spot.
When other witnesses tried to intervene A2 took out knife and threatened
that they should keep away and not to interfere in the incident. Meanwhile,
deceased fell down on the ground. PW1 immediately brought rickshaw from
Bindu Chowk. Meanwhile, A1 gave a blow of knife in the abdomen of the
deceased and on the other parts of the body. PW1 - complainant a!so gave a
blow of electric tube on the head of A1 and also with bamboo on his back.
A1 also received injury on his head and other parts of the body. Meanwhile,
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PW 3 also tried to snatch the knife from A2 who had threatened him not to
rescue the deceased. He also sustained injury on the middle finger of the
hand. Meanwhile PW2 sought help and on his call one Suryavanshi also came
on the spot. Rickshaw was brought by the PW1- complainant. Thereafter all
the three accused persons ran away from the spot. The deceased was brought
to the C.P.R. Hospital. He was attended by PW 14 - Dr. Nalavade but the
deceased succumbed to the injuries. Thereafter the report was sent to the
police. Post mortem of the dead body was done. The case was registered
against the accused. The accused were arrested and knives were recovered
from their possession. Police after completion of the investigation filed
the challan against the three accused persons.
Prosecution produced necessary evidence and the learned Sessions Judge
after due trial found the accused A1 and A2 guilty of offence punishable
under Sections 302, 504, 562 read with 34 of Indian Penal Code and
sentenced them to suffer imprisonment for life as aforesaid. However, the
learned Sessions Judge acquitted A3 - Arun Vilas Hulaswar because he was
simply present on the spot and wss not found guilty. The learned Sessions
Judge held that mere presence of this accused is not sufficient to hold him
guilty under Sections 302, 504, 506(2) read with 34 I PC.
Against this order the appeal .was preferred before the Hon’ble High Court.
The learned Division Bench of the Bombay High Court confirmed the
conviction and sentence of both the accused persons aforementioned. Hence,
the present appeal by A2 only.
Learned senior counsel for the appellant submitted that in the present case
Section 302 read with 34 IPC is not attracted so as to hold accused
appellant guilty.
Learned senior counsel has assailed the judgment of the Bombay High Court
and took us to the evidence and tried to persuade us that in the present
situation Section 34 cannot be invoked so as to convict the appellant.
Learned counsel submitted that the appellant was only standing and tried to
prevent the other persons not to intervene in the matter. That cannot be
said to be sufficient so as to attract Section 34 of Indian Penal Code, for
convicting the accused appellant under Section 302 read with 34 of Indian
Penal Code.
In support of this contention learned senior counsel invited our attention
to the following decisions:
(i) [2002] 8 SCC 16
[Parshuram Singh v. State of Bihar]
(ii) [2001] 4 SCC 193
[Mithu Singh v. State of Punjab]
(iii) [2005] 3 SCC 277
[Idrish Bhai Daudbhai v. State of Gujarat]
In all these three cases, there was an exhortation, this Court did not find
the exhortation sufficient to attract Section 34 IPC and convicted the
accused on the basis of their individual action. But all these cases cannot
provide any assistance as there is no question of exhortation in the
present case. The intention of the accused appellant is clearly evident by
his own action and as such Section 34 is attracted.
We have heard learned counsel for the parties and perused the record. We
need not to repeat the detail factual aspect in the matter because both the
courts below have found that the incident did take place and the accused
appellant tried to stop the other witnesses to save the deceased from being
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attacked by A1- Jagdish. In the present case as per the statements of PWs
1, 2 and 3 it is more than evident that all the three accused were going on
scooter and motorcycle when they saw deceased - Parshant and PW1 -
complainant sitting at the steps of shop ‘Shanti Plywood’ they came back
and A1 - Jagdish called the deceased and then certain exchange of hot words
took place and ultimately converted into a serious attack by A1 - Jagdish
with the knife on the deceased. The injuries ultimately caused death of the
deceased - Parshant. Statements of PWs 1, 2 and 3 squarely hold A1 -
Jagdish responsible for causing knife blows to -the deceased. But when the
accused appellant and A3 were both present on the spot and when PW 3 tried
to intervene in the matter he was prevented and sustained injuries with the
knife.
A perusal of the statements of all PWs 1, 2 and 3 shows that there is no
manner of doubt that accused appellant in furtherance of the common
intention of the A1 - Jagdish tried to prevent PWs 2 and 3 from intervening
in the matter. So much so that PW 3 who wanted to intervene, effectively
was prevented by causing knife injury by accused appellant. Therefore, this
conduct of the accused appellant is sufficient to attract Section 34
because he acted in furtherance of common intention of accused A-1. Looking
to the facts of the present case there remains no manner of doubt that
accused appellant was acting in furtherance of common intention and
prevented PWs 2 and 3 to save deceased. He facilitated the commission of
the offence in furtherance of common intention of A1 - Jagdish in
commission the murder of the deceased -Parshant. Therefore, Section 34 is
attracted in the present case and the accused appellant was rightly
convicted under Section 302 read with Section 34 of IPC.
Hence, we do not find any merit in this appeal and the same is dismissed.