The Bombay High Court (Nagpur Bench) has held that conviction under Section 302 read with Section 34 of the IPC cannot be sustained merely because co-accused were present at the spot and allegedly caught hold of the deceased, unless the prosecution proves by substantial, concrete, definite, and clear evidence that they shared the common intention, had prior concert or meeting of minds, or acted in furtherance of that common intention with knowledge of the principal offender’s armed assault.
The Court therefore maintained the conviction of accused No.1 Shiva, holding that the direct eyewitness account corroborated by medical evidence proved beyond reasonable doubt that he caused the death of the deceased and committed culpable homicide amounting to murder, but quashed the conviction of accused Nos.2 and 3 and acquitted them of the offence under Section 302 read with Section 34 IPC.
The Division Bench comprising Justice Urmila Joshi-Phalke and Justice Nivedita P. Mehta observed that the prosecution proved the homicidal death of the deceased through the evidence of Dr. Bandu Ramteke (the post-mortem doctor), whose testimony was treated not merely as opinion evidence but also as direct evidence regarding the injuries found on the body of the deceased. The medical evidence corroborated the prosecution case that the deceased died due to the stab injury on a vital part.
As regards accused No.1 Shiva, the Bench found the evidence of eye witnesses consistent on material particulars. Their evidence established that Shiva came armed with a knife, assaulted the witness, and inflicted the fatal knife blow on the stomach of the deceased. The Bench found that nothing material was brought out in cross-examination to make Shiva’s involvement doubtful, and the medical evidence fully corroborated this role.
As regards accused Nos.2 and 3, the Bench found material weakness in the prosecution case. Though PW1 and PW2 stated that they caught hold of the deceased, the allegation that they further assaulted the deceased by fists was treated as an exaggeration by PW1 because it was not supported by PW2 or DW1 Suresh Kewat. The Bench also noted that no overt act beyond catching hold was convincingly established against them.
The Bench also found the circumstantial evidence regarding blood-stained clothes of accused Nos.2 and 3 doubtful because the arrest panchanamas were silent about blood-stained clothes, the seizure was made later, and the prosecution failed to establish the chain of custody from seizure till forwarding to the Chemical Analyzer. In the absence of evidence of safe custody and continuity, the Chemical Analyzer’s Report could not be safely relied upon against accused Nos.2 and 3.
On common intention under Section 34 IPC, the Bench reiterated that common intention presupposes prior concert, meeting of minds, and action in furtherance of such intention. The Bench held that there was no evidence to show prior meeting of mind, sudden formation of plan at the spot, consultation, instigation, aiding, or knowledge on the part of accused Nos.2 and 3 that Shiva was carrying a weapon. Mere presence and catching hold, without more, were held insufficient to sustain conviction under Section 302 read with Section 34 IPC.
Briefly, the appeal challenged the judgment passed by the Additional Sessions Judge, by which all three appellants were convicted under Section 302 of the IPC, and accused No.1 Shiva was additionally convicted under Section 324 of the IPC.
The prosecution case was that on June 30, 2019, complainant Raju Mohan Gogulwar and deceased Sanju Odal Zunmulwar were returning from a grocery shop on a motorcycle when near the house of Bandu Totawar they were restrained by the accused persons. Accused Shiva told the deceased not to interfere in his family matters. There was a scuffle, Shiva assaulted the complainant with a knife on his right elbow and left wrist, accused Nos.2 and 3 caught hold of the deceased, and Shiva gave a knife blow on the stomach of the deceased, after which the deceased fell on the ground and was taken to hospital where he succumbed to injuries.
The prosecution examined seven witnesses, including the complainant, pancha, the postmortem doctor, and the investigating officers. The prosecution also relied on the FIR, spot panchanama, seizure memos, postmortem report, query report, and medical certificate of the complainant. The medical evidence showed multiple ante-mortem injuries, including a stab wound on the abdomen and injury to auxiliary vessels, and the doctor opined that the cause of death was shock of hemorrhage due to injury to auxiliary vessels due to stab wound with stab wound on abdomen, and that the injury was sufficient in the ordinary course of nature to cause death.
Appearances:
Advocate R.M. Daga, for Appellant
Advocate M.J. Khan, for the Respondent/ State
