SUPREME COURT OF INDIA
Kishore Eknath Nikam (A-2)
Vs
State of Maharashtra
Criminal Appeal No 772-2005
(G. P. Mathur and A. K. Mathur, JJ)
22.09.2006
A. K. MATHUR, J.
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, 000/- 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
for Rs. 500/- each, in default 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.
2. Brief facts giving rise to this appeal are that on 11-4-1998, Mahendra
Vishwasrao Bhatge (P.W.I), Prashant (deceased) and Uttam Kumar had their dinner
at Maruti Hotel in Laxminpuri. After their dinner, they returned to Azad Chowk.
P.W. 1 and deceased sat on the steps in front of one shop styled as
"Shanti Plywood". Meanwhile, Uttam left the spot. Vijay Bapusaheb
Piste (P.W.2) and Bandu @ Vijay Dynandeo Gata (P.W.3) were sitting inside of
one cement godown nearby. Meanwhile, Jagdish Prabhakar Babar (A-l), Kishore Eknath
Nikam (A-2) and Arun Hulswar (A-3) came from the side of Ghate Hospital. A-1
was on scooter whereas A-2 and A-3 were on motorcycle. They were proceeding
towards Bindu Chowk.When they saw the deceased and P.W. 1 -complainant sitting
on the steps of 'Shanti Plywood' they came back towards them and A-l gave a
call to the deceased asking to come near him. Deceased reached near A-l. 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. P.W.I
tried to separate the quarrel and persuaded not to quarrel with the deceased.
Meanwhile P.W.2 and P.W.3 who were sitting the godown came out after hearing
the loud voice of quarrelling of A-l. A-l 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 P.W.2 and P.W.3 rescued the deceased from the attack of the A-l
and they could succeed in pushing the deceased from that place. Then the P.W. 1
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. P.W.I complainant was about to reach near
A-1, A-1 gave a knife blow in the abdomen of the deceased and A-2 and A-3 were
standing on the spot. When other witnesses tried to intervene A-2 took out
knife and threatened that they should keep away and not to interfere in the
incident. Meanwhile, deceased fell down on the ground. P.W.I immediately
brought rickshaw from Bindu Chowk. Meanwhile A-l gave a blow of knife in the
abdomen of the deceased and on the other parts of the body. P.W.I - complainant
also gave a blow of electric tube on the head of A-l and also with bamboo on
his back. A-1 also received injury on his head and other parts of the body.
Meanwhile, P.W.3 also tried to snatch the knife from A-2 who had threatened him
not to rescue the deceased. He also sustained injury on the middle finger of
the hand. Meanwhile P.W.2 sought help and on his call one Suryavanshi also came
on the spot. Rickshaw was brought by the P.W. 1 - 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 P.W. 14 - Dr. Nal vada 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.
3. Prosecution produced necessary evidence and the learned Sessions Judge after
due trial found the accused A-l and A-2 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 A-3 Arun Vilas Hulaswar because he was simply present on the spot and
was 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 IPC.
4. 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 A-2 only.
5. 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.
6. 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.
7. In support of his contention learned senior counsel invited our attention to
the following decisions:
(i) [Parshuram Singh v. State of Bihar 2002 (8) SCC 16
(ii) [Mithu Singh v. State of Punjab][ 16
(iii) [Idrish Bhai Daudhai v. State of Gujarat][ 2005 (1) SCJ 802 =
2005 SCC 277
8. In all these the 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 clearly evident by his own action and as such Section
34 is attracted.
9. We have heard learned counsel for the parties and perused the record. We
need not repeat in 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 attacked by
A-l Jagdish. In the present case as per the statements of P.Ws. 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 P.W. 1 complainant sitting at
the steps of shop 'Shanti Plywood' they came back and A-l - Jagdish called the
deceased and then certain exchange of hot words took place and ultimately
converted into a serious attack by A-1 - Jagdish with the knife on the
deceased. The injuries ultimately caused death of the deceased -Parshant.
Statements of P.Ws. 1, 2 and 3 squarely hold A-l Jagdish responsible for causing
knife blows to the deceased. But when the accused appellant and A-3 were both
present on the spot and when P.W.3 tried to intervene in the matter he was
prevented & sustained injuries with the knife.
10. A perusal of the statements of all P.Ws. 1, 2, and 3 shows that there is no
manner of doubt that accused appellant in furtherance of the common intention
of the A-l - Jagdish tried to prevent P.Ws. 2 and 3 from intervening in the
matter. So much so that P.W.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-l 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 P. Ws. 2 and 3 to save
deceased, He facilitated the commission of the offence in furtherance of common
intention of A-l - Jagdish in commission of 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 IPC
11. Hence, we do not find any merit in this appeal and the same is dismissed.