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Vinayak Rambhau Waghmare, Vs. State of Maharashtra - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtMumbai High Court
Decided On
Case NumberCriminal Appeal Nos. 598, 602 and 577 of 1980
Judge
Reported in1986(1)BomCR160
ActsEvidence Act, 1872 - Sections 3; Indian Penal Code (IPC), 1860 - Sections 34, 300, 302 and 304
AppellantVinayak Rambhau Waghmare, ;ramesh Vishwanath Jadhav and ;mahadev Vithal Kawade
RespondentState of Maharashtra
Appellant AdvocateS.G. Kudle, Adv. for accused No. 1 and ;Ajit P. Shah, Adv. for accused Nos. 2 and 3
Respondent AdvocateY.V. Patil, P.P.
DispositionAppeal dismissed
Excerpt:
criminal - provocation - section 3 of evidence act, 1872 and sections 34, 300, 302 and 304 of indian penal code, 1860 - appeal filed against order of conviction for committing offence punishable under sections 302 and 323 read with sections 34 and 506 - second and third accused had shared common intention with first accused - witness fully corroborated by first information report - first accused without any provocation from deceased or without having any altercation with deceased straight away rushed on deceased - prosecution proved case beyond reasonable doubt - held, all three accused liable to be convicted. - indian evidence act, 1872 section 24: [v.s. sirpurkar & deepak verma,jj] dying declaration - multiple murders by accused - dying declaration not implicating one accused -.....r.r. jahagirdar, j.1. these three appeals are being disposed of by this common judgment. criminal appeal no. 577 of 1980 which was preferred by accused no. 3 was initially summarily dismissed. the previous bench, however, had appointed shri ajit p. shah to represent accused no. 3 so that his appeal also could be heard along with the other two companion appeals. according to the case of the prosecution, accused nos. 1, 2 and 3 had committed offences punishable under section 302 read with section 34 of the indian penal code and section 323 read with section 34 of the indian penal code. accused no. 1 was also further charged with an offence punishable under section 506 of the indian penal code.2. the case of the prosecution may be shortly stated as follows :there is a theatre known as.....
Judgment:

R.R. Jahagirdar, J.

1. These three appeals are being disposed of by this common judgment. Criminal Appeal No. 577 of 1980 which was preferred by accused No. 3 was initially summarily dismissed. The previous Bench, however, had appointed Shri Ajit P. Shah to represent accused No. 3 so that his appeal also could be heard along with the other two companion appeals. According to the case of the prosecution, accused Nos. 1, 2 and 3 had committed offences punishable under section 302 read with section 34 of the Indian Penal Code and section 323 read with section 34 of the Indian Penal Code. Accused No. 1 was also further charged with an offence punishable under section 506 of the Indian Penal Code.

2. The case of the prosecution may be shortly stated as follows :

There is a theatre known as Mahalaxmi Loknatya Griha in Barshi in the district Solapur. The deceased Appa Kachare was the owner and proprietor of the said theatre. The theatre was exclusively meant for dance-cum-music programmes. One Vijaykumar Zaveri (P.W. 4) was working as manager-cum-Door keeper in the theatre. Besides him, Aba Jadhav (P.W. 5) and one Chandu Yadav were also working as door-keepers. The deceased Appa Kachare was running the said theatre for about 11 to 12 years prior to the date of the incident. Vijaykumar (P.W. 4) was working as doorkeeper for the ticket-holders of rupee one each. Aba Jadhav (P.W. 5) was working as doorkeeper at the entrance of ticket holders of 75 Ps. After entering through the main gate, the door meant for the ticket holders of 75 Ps. is situated first and beyond that an entrance door for the ticket holders of rupee one and Rs. 1.50 Ps. is situated. Adjoining to the door, there is office room in which the telephone of the theatre having No. 607 was fixed. In between that door and office room, there was a wooden stair-case leading to the first floor on which the resting room of the deceased Appa Kachare was situated. In that room there was a wooden cot which was meant for the rest and relaxation of the deceased Appa Kachare. The locality plan Ex. 12 would clearly indicate the situation of the theatre, entrance door for the ticket-holders of rupee one, Rs. 1.50 Ps. and 75 Ps. as also the stair-case leading to the room of the deceased Appa Kachare.

3. It is specific case of the prosecution that on 2nd January, 1980 a programme of five dancing-cum-music parties was arranged and the parties had arrived at the theatre to perform their shows. The show (Tamasha) was scheduled to start at about 8-30 p.m. and was to be over by 0-30 hours mid-night. 15 minutes prior to the commencement of the show i.e. at about 8-15 p.m. Vijaykumar and the other staff members resumed their respective duties. The deceased Appa Kachare also came to the theatre and was sitting in his office. As scheduled the programme started at 8-30 p.m. While the programme was in progress at about 10 p.m. the deceased Appa Kachare informed the complaint Vijaykumar that he was going to attend the election meeting of Congress 'I' party in connection with Loksabha Election at Pande Chowk. Accordingly, Appa Kachare left the theatre.

4. It is again the specific case of the prosecution that at about 11-15 p.m. accused No. 1 and Vithal Kawade the father of accused No. 3 arrived at the theatre and entered the auditorium through the gate of the ticket-holders of 75 Ps., where Aba Jadhav was on duty as door-keeper. Aba Jadhav insisted that accused No. 1 and the father of the accused No. 3 should show their tickets and an altercation started between them with the result that Aba Jadhav removed them from auditorium. Vijaykumar (P.W. 4) after hearing altercations went near Aba Jadhav (P.W. 5) to enquire about the matter. Vijaykumar tried to convince accused No. 1 and the father of accused No. 3 that they should purchase the tickets, because as a manager he is accountable to the proprietor. According to the prosecution, at this juncture accused No. 1 and the father of accuse No. 3 abused both Aba Jadhav and Vijaykumar and threatened to see them as well as their employer. After giving threats, accused No. 1 and the father of accused No. 3 left the theatre.

5. At about 12 midnight, Appa Kachare returned back to the theatre and went to his resting room. At about 0.15 hours at midnight, according to the prosecution, the present three accused came to the theatre. Accused No. 3 rushed towards Aba Jadhav (P.W. 5) which was seen by Vijaykumar was standing with Sadik Maniyar (P.W. 6) near the door meant for the tickets of rupee one and Rs. 1-50 Ps. Vijaykumar went immediately near Aba Jadhav to enquire as to what was the commotion. At this juncture accused No. 2 who was armed with a hunter-cum-wire gave a blow of that wire on the back of Vijaykumar, as a result of which Vijaykumar screamed 'Aai ga'. On hearing the scream of Vijaykumar, the deceased Appa Kachare came down from his room through the stair-case in order to enquire as to what was the matter. Accused No. 3 gave first blow on the abdomen of Aba Jadhav. When Appa Kachare noticed this attack and the presence of the present appellant-accused Nos. 1, 2 and 3, he said that he would give a phone message. Though the telephone was fixed in the office room it was locked and the key was kept in the pocket of the coat, which Appa Kachare had kept in his resting room on the first floor. Thus Appa Kachare turned towards stair-case in order to bring the key and immediately accused No. 1 rushed towards him and stabbed on his back with knife. Accused No. 2 threw away the hunter and all the accused fled away from the theatre. Appa Kachare pressed his would with his hand and tried to climb the steps of the stair-case. He was about to collapse but Sadik Maniyar (P.W. 6) as well as Chandu Yadav gave support to Appa Kachare and took him to the first floor and made him to lie down on the cot covered with a bedsheet. Thereafter, arrangements were made to remove the deceased Appa Kachare to the hospital namely, Jawahar Hospital where on examination by Dr. Karajkhede (P.W. 10) Appa Kachare was declared as dead.

6. Police Inspector Damame after getting information about the incident rushed to Jawahar hospital. He contacted the complainant Vijaykumar (P.W. 4) and recorded his statement as first information report at Exh. 21 on 3-1-80 at 1-25 a.m. He also made arrangements for the treatment of the injuries which were sustained by Vijaykumar. While Inspector Damame was at the hospital itself in pursuance to the information that he had received, he accompanied by Machhindra Gholap (P.W. 3) and the other police staff went to Barshi railway station. While searching for accused Nos. 1, 2 and 3, in the train from Barshi to Kurduwadi detected all the three accused who were sitting in the third bogie from the cabin of the guard. When the personal search of accused was taken in the presence of the panchas, in the right side front pocket of the trouser of accused No. 1, three railway tickets of the destination from Barshi to Kurduwadi with consecutive Serial Nos. 11605 to 11607, one handkerchief in which one blood-stained knife was covered, were found. All the three articles were taken charge of under the panchanama (Exh. 14). Thereafter Inspector Damame recorded the statements of various prosecution witnesses, drew panchanama of the scene of offence and after completing investigation submitted the charge-sheet in the Court of the Judicial Magistrate, First Class, Barshi, who committed the accused to the Court of Sessions to stand their trial.

7. All the accused pleaded not guilty to the charge. It was a case of accused No. 1 that he was serving in Bombay for the last 8 to 10 years and he often used to come to Barshi to see his parents and wife. According to him, in the night between 2nd and 3rd of January, 1980 at about 1-30 a.m. he was proceeding to Bombay and had purchased railway ticket and was waiting at Barshi railway station for boarding the train. While he was waiting at the railway station for boarding the train. While he was waiting at the railway station Police Inspector Damame came there, snatched his railway ticket and arrested him. It is also the case of accused No. 1 that three railway tickets of the destination of Barshi to Kurduwadi were purchased by Inspector Damame and were foisted on him. The knife and the handkerchief do not belong to him. According to him, keep or mistress of Appa Kachare was staying in the room on the first floor. It was also suggested that there was tough competition between Appa Kachare and other Tamasha theatres. It was also a suggestion that Appa Kachare was stabbed while he was sleeping in his room on the first floor.

8. Accused No. 2 denied that he had gone to the theatre in question much less with the hunter. According to him, he had gone to the railway station to see off his guests and the police caught him there and falsely implicated him.

9. It was also the case of accused No. 3 that at about 9 p.m. that night, he had gone to Mahalaxmi theatre and was attending the Tamasha show. At about 12 mid-night there was commotion and panic in the theatre and the public came out of the theatre. Out of curiosity, he also came out of the theatre when he learnt that Appa Kachare was stabbed in his room on the first floor. He went back to his house and slept, but the police came and took him from his house and arrested him. According to him. at the time of stabbing incident, witness Vijaykumar (P.W. 4), Aba Jadhav (P.W. 5) and others were standing at the Pan-shop outside the premises of the theatre and they came in the theatre while accused No. 3 was going out of the theatre.

10. III Additional Sessions Judge, Solapur on appreciation of the evidence both oral as well as documentary held that accused Nos. 1, 2 and 3 have committed an offence punishable under section 302 read with section 34 of the Indian Penal Code and each one of them was sentenced to undergo imprisonment for Life and to pay fine of Rs. 100/- or in default to suffer rigorous imprisonment for 15 days. Accused Nos. 1, 2 and 3 were also found guilty for the offence punishable under section 323 read with section 34 of the Indian Penal Code and each one of them was sentenced to undergo rigorous imprisonment for six months. Accused No. 1 was also found guilty for and offence punishable under section 506 of the Indian Penal Code and was sentenced to undergo rigorous imprisonment for six months. The substantive sentences of each of the accused were also to run concurrently. Being aggrieved by the same order of conviction and sentence, the appellants before us namely, accused Nos. 1, 2 and 3 have filed the present appeals. As already stated, these three appeals are being disposed of by a common judgment.

11. Mr. Kudle, the learned Advocate for accused No. 1 has attacked the evidence of Vijaykumar (P.W. 4) on various points. While summarising the case of prosecution, we have clearly indicated as to what the case of the prosecution is, it is, therefore, unnecessary to repeat what this witness Vijaykumar (P.W. 4) has stated in the examination-in-chief. Mr. Kudle, the learned Advocate for accused No. 1 has contended that the first incident deposed to by the witness which took place at about 11-15 p.m. when accused No. 1 and the father of accused No. 3 had abused the witness as well as Aba Jadhav and had threatened to see not only the witness Vijaykumar (P.W. 4) and Aba Jadhav (P.W. 5) but also the deceased, has not been reported by him to the proprietor of the theatre---the deceased Appa Kachare when he returned to the theatre at about 12 mid night. According to the learned Advocate, his conduct in not reporting this incident to the deceased is most unnatural. The learned trial judge, according to him, therefore, was in serious error in accepting and relying upon the evidence of this witness.

12. This argument is not well founded, and does not appeal to us. According to this witness it was merely a minor incident. All that the witness has deposed to is that the threats were given by accused No. 1 and the father of accused No. 3. This type of incidents of abuses and threats do commonly occur in theatres where Tamasha shows are held. We do not find anything unnatural on the part of this witness in not reporting this incident to the proprietor. Perhaps the things would have been different, if in addition to the threats and abuses it was a case of the witness that before Appa Kachare returned to the theatre they were assaulted in which case perhaps it was expected on the part of this witness to report the incident to the proprietor. This being not the position, the submission has to be rejected. Mr. Kudle then has attacked the evidence of this witness. The evidence of this witness according to Mr. Kudle, does not show that just before the stabbing incident accused No. 1 had a knife in his hand. His evidence also does not indicate that accused No. 1 had pulled out the knife from the place of the injury namely, back of the deceased before all the accused ran away. This, according to the learned Advocate for accused No. 1, is a serious infirmity in the evidence of this witness.

13. We do not think that simply because the witness does not say that he had seen the knife in the hand of accused No. 1 at the time when he came to the theatre along with accused Nos. 2 and 3 does not mean that accused No. 1 was not carrying a knife in his hand. As regards the witness not noticing accused No. 1 pulling out the knife from the back of the deceased, it is clear that immediately after the stabbing incident there was utter confusion and commotion in the theatre. The evidence also shows that this witness along with the help of another gate-keeper Chandu Yadav immediately gave support to the deceased and removed him to his room on the first floor of the theatre. The evidence also shows that immediately steps were taken for the removal of the deceased from his room to Jawahar hospital. It is, therefore, clear that in the utter confusion and commotion, which followed immediately after the stabbing incident, it is possible that the witness may not have seen accused No. 1 pulling out the knife from the place of injury. The infirmity, therefore, would not lead us to come to the conclusion that accused No. 1 was not present at the place of incident and that accused No. 1 did not stab the deceased by the knife which was in his hand.

14. Reliance is also placed upon the admission given by this witness that the witness did not rush to the police to give information about the incident. This unnatural conduct, according to Mr. Kudle, makes him an unreliable witness.

15. Here again the submission fails to impress us. The first and foremost duty on the part of the witness Vijaykumar (P.W. 4) on seeing his master receiving a serious stab injury was to take immediate steps of saving the life of the proprietor Appa Kachare rather than rushing to the police and leaving the deceased being kept unattended to. In fact, according to us, this was most natural conduct on the part of this witness in making arrangements to remove the deceased to Jawahar hospital in a rickshaw which has been done by this witness.

16. It was then urged that accused No. 1 would have thrown away the knife on his way to the railway station and would not have indulged in an indiscreet act of keeping the blood-stained knife wrapped in handkerchief in his right side pocket of the trouser.

17. This submission also fails to impress us. Everything depends upon the state of mind of the assailant soon after the incident. In some cases, the assailants may resort to the act of throwing away the weapons of offence in the Well or nala or river. Some of them might conceal it. But simply because in this particular case did not indulge in the act of throwing away the knife does not throw doubt on the evidence of this witness when he clearly deposed to what he had seen, namely, that accused No. 1 had inflicted a knife on the back of the deceased.

18. It was then urged that Chandu Yadav another gate keeper of the theatre was also present at the time of the incident according to this witness. The non-examination of this witness renders the evidence of Vijaykumar (P.W. 4) extremely doubtful.

19. We fail to appreciate the reasoning behind this argument. It may be that Chandu Yadav may have remained present at the time of the incident but it is the discretion of the prosecutor to decide how many witnesses are to be examined to support the case of the prosecution. The prosecution in this case has chosen to examine three eye witnesses namely, Vijaykumar (P.W. 4), Aba Jadhav (P.W. 5) and Sadik Maniyar (P.W. 6). We do not think that the prosecutor was in error in not putting Chandu Yadav in the witness-box who would have again repeated the same story.

20. It was lastly urged by Mr. Kudle that according to the prosecution, the incident took place in the varandah just near the stair-case, where the deceased Appa Kachare was stabbed. The panchanama of the scene of offence does not show that the bloodstains were found near the stair-case. The evidence that the incident of stabbing took place near the stair-case as deposed by Vijaykumar, therefore, should not be believed. According to the learned Advocate for accused No. 1, Mr. Kudle, the incident of stabbing did not take place near the stair-case as alleged by the prosecution but it took place in the room of Appa Kachare on the first floor of the theatre.

21. His last submission also fails to impress us. The witness Vijaykumar (P.W. 4) in his evidence has stated that immediately after the stabbing incident the deceased Appa Kachare had pressed his injury with his hand. The deceased was wearing shirt on his person. The witness, who was asked about the extent of the blood oozing from the injury, stated that it was a blending injury. But was not a profusely bleeding injury. No blood had splashed on the stair-case or on the ground. Thus, the evidence of this witness shows that though it was a bleeding injury it was not the case of profusely bleeding and since the deceased was wearing a shirt on his person, that is the reason why no blood was detected either on the floor or near the stair-case where the stabbing incident took place. For these reasons the last submission of Mr. Kudle also fails.

22. The evidence of the witness Vijaykumar (P.W. 4) is fully corroborated by the first information report (Exh. 21) which bears his signature. The incident took place at 12.15 a.m. and the F.I.R. was recorded at 1.25 a.m. on 3rd January, 1980 i.e. almost an hour after the stabbing incident. The first information report clearly mentions the names of all the three accused. It also relates to the roles played by each of the accused, the wire being with accused No. 2 and the knife being with accused No. 1. It is also very clear from the evidence of Vijaykumar that he was assaulted on his back with a wire and that the deceased had received a stab injury on his back by a knife is again fully corroborated by the medical evidence. The prosecution has examined Dr. Karajkhede (P.W. 10). His evidence in short is that he examined Vijaykumar (P.W. 4) and found the following injury:

Contusion over the left side of the back in the middle oblique in nature 4' x '.

The age of the injury was fresh i.e. within 24 hours. According to him the above injury is possible by wire (Article 7) when it was shown to him. He produced medical certificate relating to the injury sustained by Vijaykumar at Exh. 36. He has also referred to the post-mortem examination on the dead body Appa Kachare having conducted by him between 9 a.m. to 10 a.m. on 3rd January, 1980. He noticed the incised wound over the left side of the back just lateral to the 4th thoracic spine obliquely situated 2' x ' x 4'. The said injury was ante-mortem. According to him, the Arch of Aorta was torn to the extent of 1' x '. The probable cause of death was shock due to haemorrhage due to injury Aorta, which is vital part of the body being the major vessel supplying the blood to the body. The injury mentioned in Col. No. 17 of the post-mortem examination notes is corresponding to the internal injury shown in Col. No. 20. In his opinion, having regard to the nature of injury caused on the vital part of the body, the death would have been instantaneous. When the knife (Article 5) was shown to him he has given his opinion that the injuries mentioned in the autopsy notes are possibly by Article 5 a sharp knife. He has finally deposed that the injury mentioned in the autopsy notes by itself was sufficient in the ordinary course of nature to cause the death.

23. Mr. Kudle has not offered any comments so far this witness is concerned. The evidence of this witness, therefore, remains unchallenged before us. Thus, the evidence of Dr. Karajkhede would clearly go to show that the evidence of the complainant Vijaykumar is fully corroborated by the medical evidence of Dr. Karajkhede (P.W. 10). This witness Vijaykumar (P.W. 4) cannot be regarded a chance witness. He is a most natural witness in a sense that he was a manager-cum-door-keeper of the theatre. Since the programme was going on, it is but natural that he should report to his work as door-keeper in the theatre. It is pertinent to note that he himself has received the injury. Nothing has been suggested against this witness as to why this witness, who had no animosity against accused No. 1, should go to the extent of falsely implicating the present accused. For all these reasons, the learned trial Judge was fully justified in accepting the testimony of this witness Vijaykumar.

24. The next eye witness about this incident is Aba Jadhav (P.W. 5). Here again we do not think it necessary to reproduce what the witness has stated in his examination-in-chief, since the same has been extensively reproduced while the case of the prosecution is given in the opening paragraphs of the judgment. Suffice to say that this witness also has deposed of the first incident of 11-15 p.m. when accused No. 1 as well as the father of accused No. 3 had administered threats to this witness as well as Vijaykumar and had also said that they would see not only the witnesses but also their employer Appa Kachare. This witness also has given the details about the stabbing by accused No. 1 which resulted in the death of Appa Kachare and the assault on Vijaykumar by accused No. 2 with wire and accused No. 3 giving fist blows to this witness on the abdomen.

25. Mr. Kudle, the learned Advocate for accused No. 1 has stated that it transpires from the evidence of Aba Jadhav (P.W. 5) that Chandu Yadav gate keeper and Sadik Maniyar (P.W. 6) had lifted the deceased Appa Kachare and had kept him in the rickshaw. The witness has admitted that there were no blood-stains on the clothes of either Chandu Yadav or Sadik Maniyar. The absence of Chandu Yadav and Sadik Maniyar clearly throws a considerable doubt on the evidence of this witness that after the stabbing incident Chandu Yadav and Sadik Maniyar had lifted the deceased and had kept him in the rickshaw. The serious infirmity ought to have been considered by the learned trial Judge while assessing and appreciating his evidence. According to the submission of Mr. Kudle, we should have no hesitation in rejecting the testimony of this witness.

26. This submission also fails to impress us. It has come in the evidence that although there was a bleeding injury there was no professed bleeding. The blood did not splash out of the injury. It all depends upon in which position both Chandu Yadav and Sadik Maniyar had lifted the deceased. If one of them had put his hands below the arms of the deceased and the other had given support to both the legs of the deceased in which case the blood would not be found on the clothes of these two persons. It also depends upon to what extent the clothes of both Chandu Yadav and Sadik Maniyar were close to the injury sustained by the deceased. But simply because no blood stains on the clothes of Chandu Yadav and Sadik Maniyar were detected, we are not prepared to go the extent of totally discarding the testimony of this witness.

27. It was then urged that the claim of this witness that he was working as the door-keeper in Mahalaxmi theatre and Appa Kachare was his proprietor should not be believed. If there is nothing on record that he was a door-keeper, his evidence regarding the claim that he had witnessed the incident should be discarded. Here again the submission of Mr. Kudle has to be rejected. He has asserted more than once in his evidence that he is the door-keeper in Mahalaxmi theatre and that the proprietor was Appa Kachare. His statement has been recorded within 4-5 hours after the incident namely, at 5-30 a.m. on 3rd January, 1980. The defence has not been able to bring on record either by way of omission or contradiction from the evidence of this witness when he said that he has been the door-keeper in Mahalaxmi theatre and that his proprietor was Appa Kachare. For these reasons, the submission of Mr. Kudle for accused No. 1 has to be discarded.

28. Like the previous witness Vijaykumar (P.W. 4), the statement of the witness Aba Jadhav has been recorded after few hours after the incident. His evidence shows that he has been in the employment of Appa Kachare as a door-keeper. Therefore, like the previous witness Vijaykumar this witness also cannot be treated as chance witness. He had every reason to be there on duty as the door-keeper. The incident took place when the show was in progress. No other contention has been urged by the learned Advocate Mr. Kudle for accused No. 1 to discard the evidence of this witness. For all these reasons we agree with the trial Judge who has accepted the testimony of this witness.

29. The next eye-witness whose evidence is to be considered is Sadik Maniyar (P.W. 6). So far as this witness is concerned, he has only referred to the second incident namely, the incident in which Vijaykumar received blow from accused No. 2 with wire, Aba Jadhav received fist blows from accused No. 3 and the deceased Appa Kachare received a knife blow from accused No. 1. Here again we do not think it necessary to reproduce everything that has been stated by this witness in his examination-in-chief and we straightaway proceed to consider the submission made by Mr. Kudle. So far as this witness is concerned, Mr. Kudle has invited our attention to an admission given by this witness in his cross-examination by accused No. 1 in which the witness has admitted that at Barshi Town Police Station one prohibition case is registered against him. Mr. Kudle has relied upon the previous convictions of this witness. The previous conviction is recorded in Crime Register No. 44 of 1978 under section 12(a) of the Gambling Act in which on 19th July, 1978 a fine of Rs. 30/- was imposed on the witness in default to undergo simple imprisonment for 7 days. The second conviction is under section 160 of the Indian Penal Code and the date of the sentence is 1st November, 1977 wherein the witness was imposed sentence of S.I. till rising of the Court and a fine of Rs. 10/- in default of S.I. for 5 days. It is urged that having regard to these antecedents of this witness it would be hazardous to place reliance on the evidence of this witness.

30. This submission cannot be accepted. It is undoubtedly true that the witness has been sentenced in two previous cases, one under the Gambling Act and another under section 160 of the Indian Penal Code. The dates of convictions are 19th July, 1978 and 1st November, 1977 respectively. Having regard to the nature of the offences and having regard to the nature of imprisonment which has been imposed upon this witness, we do not think that by virtue of these two sentences alone in two cases, this witness has to be discredited. Apart from these two previous convictions, the learned Advocate for accused No. 1 has not attempted to invite our attention to any other material in the cross-examination of this witness which would render his testimony as utterly unbelievable.

31. This witness had attended the show as a spectator. His evidence shows that he was occupying the chair adjacent to the entrance---exit door of the theatre. He was chit-chatting with Vijaykumar (P.W. 4) at 12 midnight when the entire incident resulting into the injuries to the deceased. Vijaykumar and Aba Jadhav from accused Nos. 1, 2 and 3, took place. Here again it would be seen that the statement of this witness has been immediately recorded, namely, at about 10-30 a.m. on 3rd January, 1980, i.e., less than 12 hours after the incident. The witness in his deposition has clearly referred to the presence of accused Nos. 1, 2 and 3 and the roles played by each of them and also weapons which were in the hands of accused Nos. 1 and 2. We do not find any sufficient material from the cross-examination of this witness to discard his testimony. For these reasons, the learned trial Judge, in our opinion, was again fully justified in accepting the testimony of Sadik Maniyar (P.W. 6).

32. The prosecution has then examined one Machhindra Gholap (P.W. 3) in support of its case that all the three accused were found in the same railway compartment of a train bound for Kurduwadi from Barshi Railway Station. Machhindra Gholap in his examination-in-chief has stated that he as well as one Kashinath Zaveri were called by the police to act as panch. On receiving certain information that all the three accused had run away in the direction of the railway station, he, the other panch, Inspector Damame and the other police staff reached the railway station of Barshi. He has stated that in the train which was stationary at Barshi and going towards Kurduwadi, they started the search for the accused and in the third bogie from the guard cabin the three accused before the Court were found. They were brought to the railway police out-post at about 1-30 a.m. on 3rd January, 1980. When the personal search of accused No. 1 was taken by the police in his presence at railway police out-post, in that search one knife was found in the front pocket of his pant. It was a Rampuri knife. In the same pant pocket of accused No. 1, three railway tickets of the destination from Barshi to Kurduwadi were found and one handkerchief of red colour was also found in that pant pocket. The railway tickets, handkerchief and the knife were then seized under the panchanama, which has been proved by this witness at Exh. 14, which are Article Nos. 3, 4 and 5 before the Sessions Court. The search of accused Nos. 2 and 3 were also carried out but nothing incriminating was found against accused Nos. 2 and 3. The evidence of this witness has been attacked by Mr. Kudle, the learned Advocate for accused No. 1. According to him, in addition to this witness Machhindra Gholap, the second panch Kashinath Zaveri also ought to have been examined by the prosecution.

33. We do not appreciate this contention of the learned Advocate for accused No. 1. It is, no doubt, true that the prosecution has not chosen to examine the second panch witness Kashinath Zaveri and Kashinath Zaveri---the second panch is incidentally the brother of Vijaykumar (P.W. 4). If the prosecution had examined Kashinath Zaveri, his evidence should have been discarded. But apart from this, the prosecution has examined the panch witness, namely, Machhindra Gholap, who has clearly in his evidence pointed out that all the three accused were found in the railway compartment and accused No. 1 was found being in possession of three railway tickets with consecutive serial numbers, the blood stained knife and handkerchief in which the knife was rolled in. What has to be noticed is that the material which is brought on record to discredit this witness is the evidence of Machhindra Gholap. And apart from advancing the argument that the second panch Kashinath Zaveri ought to have been examined, the learned Advocate for accused No. 1 was not able to point out any other circumstance or material from his evidence so as to discard his testimony.

34. So far as this witness Machhindra Gholap (P.W. 3) is concerned, he has not only deposed that the articles found on the person of accused No. 1 but he also proved the panchnama (Exh. 14). On page 2 of the panchnama it has been clearly recorded that in the right pant pocket of Vinayak Rambhau Waghmare (accused No. 1) were found three railway tickets of the date 3rd January, 1980 of the second class, for travelling from Barshi Town to Kurduwadi and the ticket Nos. were 11605, 11606 and 11607. His evidence also clearly shows that all the three accused were found in only one compartment and that the blood-stained knife was found with accused No. 1. This blood-stained knife would assume importance when the report to the Chemical Analyser will be considered at a later stage. It would also be clear from his evidence that the panchnama (Exh. 14) was commenced at 1-15 a.m. and was concluded at 3 a.m. on 3rd January, 1980.

35. In this context, on accused No. 1 being found with blood-stained knife in his pant pocket, the report of the Chemical Analyser at Exh. 32 would assume considerable importance. In Exh. 32 the Chemical Analyser has opined that the full-shirt (Exh. 1), Kopari (Exh. 2), Underpant (Exh. 3) and Dhoti (Exh. 4), (which were the clothes of the deceased) were found stained with blood of 'B' group. The bed-sheet (Exh. 6), which is mentioned in the Chemical Analyser's report and which was taken charge of by the police from the cot of the deceased in a room on the first floor, is also stained with blood of 'B' group. The knife (Exh. 8) which was seized from the person of accused No. 1 and which was sent to the Chemical Analyser for his examination and opinion has also been found to contain blood of 'B' group. Thus, the finding of the blood of 'B' group on the knife found in possession of accused No. 1 and the finding of the blood of 'B' group on the clothes of the deceased Appa Kachare, accused No. 1's inability to explain blood stained knife found in his possession, along with the other evidence on record is a clear point to the connection of accused No. 1 with the murder of Appa Kachare.

36. Mr. Kudle, the learned Advocate for accused No. 1 has urged before us that assuming that we are inclined to accept the testimony of the eye-witnesses and having regard to the fact that even according to the eye witnesses, the deceased Appa Kachare had received only one blow with a knife on his back, which is not vital part of the body, according to him, accused No. 1 is not guilty of an offence punishable under section 302 of the Indian Penal Code. At the most it can be said that accused No. 1 has committed an offence of culpable homicide not amounting to murder punishment under Part II of section 304 of the Indian Penal Code. This submission of Mr. Kudle, the learned Advocate for accused No. 1 is not well founded and has to be rejected for the following reasons :---

Even if it is held that accused No. 1 at the time of inflicting stab-injury on the deceased with a knife, did not intend to cause the death of the deceased and, therefore, the first clause of section 300 of the Indian Penal Code is not applicable. In our opinion, the third clause of section 300 of the Indian Penal Code clearly applies to the present case and so far as it is relevant, the third clause of section 300 of the Indian Penal Code lays down :

'If it is done with the intention of causing bodily injury to any person and the bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause death.'The evidence of the eye-witnesses which has been led by the prosecution and which has been accepted by us clearly shows that accused No. 1 had intended to cause bodily injury to the deceased when he inflicted the knife blow on the back of the deceased. The further question for consideration is whether the injury inflicted by accused No. 1 on the deceased was sufficient in the ordinary course of nature to cause death and in this connection a short and brief reference to the evidence of Dr. Karajkhed (P.W. 10) will assume importance. Dr. Karajkhede (P.W. 10) has stated that the injury sustained by the deceased was on Aorta, which is vital part of the body being the major vessel supplying the blood to the body. Dr. Karajkhede in his evidence has clearly stated that the injury sustained by the deceased, namely, only injury sustained by him, on his back with a knife by itself was sufficient in the ordinary course of nature to cause the death. As already stated, the evidence of this witness in this appeal was not subjected to criticism or comments. This, the evidence of Dr. Karajkhede would clearly go to show that the injury course of nature to causes the death. Thus, taking into account the evidence produced by the prosecution before us and particularly medical evidence of Dr. Karajkhede and the cases cited before us we have no hesitation in coming to the conclusion that the offence committed by accused No. 1 falls squarely within the provisions of clause third of section 300 of the Indian Penal Code and once we have come to that conclusion, the question of the accused having committed an offence punishable under section 304, Part II of the Indian Penal Code does not arise. For these reasons the submission of Mr. Kudle, the learned Advocate for accused No. 1 has to be rejected.

37. Mr. Kudle has invited our attention to a reported decision of the Supreme Court in : 1983CriLJ346 in the case of Hari Ram v. State of Haryana. The case relied upon by Mr. Kudle is clearly distinguishable on facts. In the case before the Supreme Court there was evidence on record to show that there was an altercation between accused and the deceased and the accused had inflicted a single blow in the heat of that altercation. It is under these circumstances that the Supreme Court came to the conclusion that the intention to kill the deceased was not apparent and that is why the accused-appellant before the Supreme Court was convicted under Part II of section 304 of the Indian Penal Code after setting aside the conviction of the appellant under section 302 of the Indian Penal Code.

38. Considering the facts and circumstances of this case, the case of the prosecution which we have accepted unhesitatingly, is that as soon as the deceased Appa Kachare came down and he was about to climb the stair-case for the purpose of going to his room after talking to the present accused, accused No. 1 without any provocation from the deceased or without having any altercation with the deceased straightaway rushed on the deceased and inflicted the knife injury on the back of the deceased. This being the position, the case relied upon by Mr. Kudle cannot be of any assistance to him.

39. Reliance is then placed by Mr. Kudle on the case reported in the same volume, namely, : 1983CriLJ429 in the case of Jawahar Lal and another v. State of Punjab. Here also the Supreme Court converted the conviction of the appellant from section 302 of the Indian Penal Code to one under section 304 Part II of the Indian Penal Code having regard to the facts and circumstances of that case. Here also the assault on the deceased by the appellant was preceded by a trivial quarrel. That was also a case of solitary blow of knife by the appellant on the deceased. Under these circumstances, it was held by the Supreme Court that the intention to cause a particular injury could not be attributed to the appellant. While distinguishing the previous case cited by the learned Advocate for the appellant, we have clearly stated the case of the prosecution which has been accepted by us, namely, without any provocation or quarrel or altercation between accused No. 1 and the deceased, accused No. 1 had inflicted the stab injury on the deceased's back. However, in the case before the Supreme Court the stab injury on the deceased by the accused was preceded by quarrel. We do no think that this case is also of any assistance to accused No. 1.

40. Mr. Ajit P. Shah, the learned Advocate for accused Nos. 2 and 3 has argued before us that section 34 of the Indian Penal Code cannot be invoked in the present case. He has urged: (1) There was no meeting of minds or concert between accused Nos. 1, 2 and 3, (2) There was no premeditated plan between accused Nos. 1, 2 and 3 to commit murder of the deceased Appa Kachare, (3) The stabbing incident took place on the spur of moment, (4) The accused had quarrel only with the door-keepers, namely, Vijaykumar (P.W. 4) and Aba Jadhav (P.W. 5) and that the murder of the deceased was never in contemplation, (5) The deceased was not present when accused Nos. 2 and 3 along with accused No. 1 went to the theatre, (6) The minor incident of abuses and threats was not reported by the door-keepers to their proprietor Appa Kachare, (7) There has been no enmity between accused Nos. 1 to 3 and the deceased Appa Kachare, nor was there any quarrel between them, (8) There intention was merely to cause hurt to the gate-keepers, namely, Vijaykumar, (P.W. 4) and Aba Jadhav (P.W. 5) and that is when even according to the case of the prosecution accused No. 2 gave a blow with wire to Vijaykumar (P.W. 4) and accused No. 3 gave fist-blows to Aba Jadhav (P.W. 5). It is only when the deceased turned round to go up that accused No. 1 rushed at the deceased and gave a stab blow with a knife to the deceased on his back, (9) there was no overt act on the part of accused Nos. 2 and 3 and (10). So far as the stabbing by accused No. 1 is concerned, that act has been attributed to only accused No. 1 and it cannot be said that accused Nos. 2 and 3 had shared the common intention with accused No. 1 to commit the murder of the deceased Appa Kachare. It was, therefore, urged that having regard to the sequence of the events, the conviction of accused Nos. 2 and 3 under section 302 read with section 34 of the Indian Penal Code is illegal and has to be set aside.

41. Before we proceed to appreciate the submissions made by Mr. Ajit P. Shah, the learned Advocate for accused Nos. 2 and 3, it would be desirable to refer to a decision in the case of Dharm Pal and others v. State of Haryana, : 1978CriLJ1538 . In this case it was held by the Supreme Court :

'The existence or otherwise of the common intention depends upon the facts and circumstances of each case'.(Underlining is ours).

It was further held by the Supreme Court :

'Such an understanding may appear from the conduct of the persons sought to be made vicariously liable for the act of the principal culprit or from some other incriminatory evidence but the conduct or other evidence must be such as not to leave any room for doubt in that behalf.'

Thus, it would be very clear that whether in a given case the accused had shared the common intention or not, had to be gathered from the facts and circumstances of a particular case. In the light of this proposition of the Supreme Court laid down in A.I.R. 1983 SC 1492 we have to consider whether, from the evidence of the prosecution which we have accepted and from the facts and circumstances of this case, it would be reasonable to draw an inference that accused Nos. 2 and 3 shared the common intention with accused No. 1 while committing the murder of Appa Kachare.

42. Both the door-keepers, namely, Vijaykumar (P.W. 4) and Aba Jadhav (P.W. 5) had told accused No. 1 and the father of accused No. 3 at the time of the first incident that they must purchase tickets for the show. Accused No. 1 and the father of accused No. 3 were clearly told by Vijaykumar (P.W. 4) that they are accountable to their proprietor, namely, the deceased Appa Kachare. Vijaykumar (P.W. 4) and Aba Jadhav (P.W. 5) had merely carried out the orders of the proprietor and since they were clearly communicated to accused No. 1 and the father of accused No. 3, it is but natural that accused No. 1 and the father of accused No. 3 would get angry more with the proprietor, namely, the deceased rather than the servants, namely, the door-keepers i.e. Vijaykumar (P.W. 4) and Aba Jadhav (P.W. 5) and for that reason accused No. 1 and the father of accused No. 3 not merely abused but also threatened the door-keepers Vijaykumar (P.W. 4) and Aba Jadhav (P.W. 5) that they will teach a lesson to the proprietor Appa Kachare and also to the door-keepers. The evidence which we have accepted would clearly go to show that their main target was the deceased and incidentally the servants. When accused Nos. 1, 2 and 3 arrived at the scene the deceased was not present but in the absence of the deceased, Vijaykumar (P.W. 4) was merely given the blow with hunter by accused No. 2 and Aba Jadhav (P.W. 5) was given fist blows by accused No. 3. If the servants were the target, and not the deceased as contended by Mr. Shah, only the servants Vijaykumar and Aba Jadhav would have been stabbed. But accused Nos. 1, 2 and 3 did not do so. This clearly shows that their target was the deceased. They had decided to teach the lesson to the deceased whose order not to admit any one free of charge for the show was communicated to them by the door-keepers. That it was a clear case of pre-meditated plan to cause stab injury to the deceased can be inferred from the conduct of accused Nos. 2 and 3 at the time of and subsequent to the stabbing incident. The deceased Appa Kachare came down and after talking with accused Nos. 1, 2 and 3 had turned round for the purpose of going to his room on the first-floor. He had barely climbed the first step of the stair-case, when accused No. 1 stabbed the deceased with a knife which was in his hand. The conduct of accused Nos. 2 and 3 at the time of stabbing and their subsequent conduct leaves no doubt in our mind that accused Nos. 2 and 3 had shared the common intention with accused No. 1 in committing murder of the deceased. If accused Nos. 2 and 3 did not share the common intention with accused No. 1 the attempts would have been made by accused Nos. 2 and 3 to protect the deceased Appa Kachare from being stabbed by accused No. 1. The evidence which we have accepted does not show that any such attempts were being made by accused Nos. 2 and 3 to save the life of the deceased. If accused Nos. 2 and 3 did not share the common intention with accused No. 1, it was expected that there would have been an appeal or request by them to accused No. 1 not to stab the deceased. Similarly, the evidence on record does not indicate that accused Nos. 2 and 3 made any attempts by rushing at accused No. 1 and trying to snatch the knife from the hand of accused No. 1. This conduct on the part of accused Nos. 2 and 3 in not preventing stabbing of the deceased, or by not requesting accused No. 1 not to stab the deceased or by not rushing at the accused No. 1 and attempting to snatch the knife from his hand is a clear pointer to accused Nos. 2 and 3 sharing the common intention with accused No. 1. This conduct also shows that accused Nos. 2 and 3 knew that accused No. 1 was carrying a knife with him. Accused No. 2 was openly carrying wire with him. Accused Nos. 1, 2 and 3 came together just before the incident. Accused Nos. 1, 2 and 3 ran away together after the incident and what transpires from the evidence of Machhindra Gholap (P.W. 3) is that accused Nos. 1, 2 and 3 were found in the same railway compartment in a train going from Barshi to Kurduwadi. Further thing which is required to be noted and which is of considerable importance is that, in the pant pocket of accused No. 1, three railway tickets for the journey between Barshi to Kurduwadi having consecutive serial numbers were found. If conduct of accused Nos. 1 to 3 both before the incident, at the time of incident and after the incident are taken into account and after considering the cases cited before us by Mr. Shah for accused Nos. 2 and 3 we have no doubt in our mind that accused Nos. 2 and 3 did share the common intention along with accused No. 1 in committing murder of the deceased. As already stated whether in a given case the culprits shared the common intention with one another has not to be considered on the precedent of any authorities, but on the facts and circumstances of each case. The detailed consideration of the evidence led by the prosecution which we have unhesitatingly accepted clearly shows that accused Nos. 2 and 3 did share the common intention with accused No. 1.

43. We may now refer to some cases relied upon by Mr. Ajit P. Shah in support of his submission that accused Nos. 2 and 3 did not share the common intention with accused No. 1. In the case of Malkhan Singh and another v. State of Uttar Pradesh, : 1975CriLJ32 the facts were that the co-accused accompanied by the principal accused went on a cycle when the principal accused fired a pistol shot at the complainant. It was not shown that the appellant before the Supreme Court instigated the principal accused to fire at the complainant. The sharing of the common intention with the principal accused in that case was not proved. It was held that the appellant-accused was merely an innocent companion and that is why the conviction and sentence under section 324 read with section 34 of the Indian Penal Code was set aside. This case, in our opinion, cannot be of any assistance to Mr. Shah. It was found that the appellant-accused before the Supreme Court was merely an innocent companion of the principal accused. In the case before us, we have already discussed the stabbing incident and their subsequent conduct. On the facts and circumstances of the case before us it is not possible for us to come to the conclusion that accused Nos. 2 and 3 were merely innocent spectators.

44. In the case of Ram Prasad and others v. The State of U.P., : 1976CriLJ201 the facts were: That the four accused, R, H, M and K were convicted under sections 302 read with section 34 and section 323 read with section 34 of the Indian Penal Code. The appellants---accused R and M who were armed with lathis, wanted to stack bajra crop on the land of the deceased to which the deceased objected and was beaten by the appellants resulting in his death. It was held that out of the four appellants, who came together to the scene of occurrence, evidence, does not show that appellants H and K shared the common intention with the appellants R and M at the time of giving lathi blows. It is to be seen that having regard to the evidence and the facts and the circumstances of the case before the Supreme Court and on assessment of the evidence, the Supreme Court came to the conclusion that the appellants H and K did not share the common intention of the appellants R and M at the time of giving lathi blows. Here again, in our opinion, the case cited by Mr. Shah cannot be of any assistance to him. After all, whether the assailants shared the common intention had to be determined from the facts and circumstances of each case. Our discussion in the previous paragraphs of this judgment clearly shows that accused Nos. 2 and 3 before us had shared the common intention of accused No. 1 in committing murder of the deceased Appa Kachare.

45. In Parichhat and others v. The State of Madhya Pradesh, : 1972CriLJ322 it was held that in the absence of any evidence of a prior meeting of minds and any pre-arranged plan or of participation of accused persons in the fight in question they cannot be convicted with the aid of section 34. It was further held that the prosecution must prove that the criminal act has been done in concert pursuant to the pre-arranged plan. Mere proof that some accused persons were with the main accused who inflicted fatal injury on the deceased at the time of cutting of crops on the field will not attract the applicability of section 34. Here also we do not think that Mr. Shah, the learned Advocate for accused Nos. 2 and 3 can derive any assistance from this case. The reason being that in the preceding paragraphs of our judgment after analysing the evidence and taking into account the facts and circumstances before us, we have clearly come to the conclusion that there was prior meeting of minds between accused Nos. 1, 2 and 3 and that there was pre-arranged plan too. We have also accepted the case of the prosecution and the facts and circumstances relied upon by the prosecution in support of our conclusion that the criminal act, namely, stabbing the deceased by accused No. 1 has been done in pursuance of the pre-arranged plan. We have also given reasons in support of our conclusions in the preceding paragraphs of our judgment that accused Nos. 2 and 3 had shared the common intention of accused No. 1.

49. Now, a brief reference may be made to other decisions cited by Mr. Shah, the learned Advocate for accused Nos. 2 and 3. They are :

(1) Dharam Pal and others v. State of Haryana, : 1978CriLJ1538 .

(2) Hardev Singh and others v. The State of Punjab, : 1975CriLJ243 .

(3) Shambhu Kuer v. State of Bihar, : 1982CriLJ1742 .

Suffice it to say that in these decisions on the evidence on record and facts and circumstances of those cases, the Supreme Court had come to the conclusion that there was no material to draw an inference of common intention. However, we are clearly of the opinion that having regard to the evidence of the prosecution in this case and the facts and circumstances relied upon by the prosecution, an inference is irresistible that accused Nos. 2 and 3 had shared the common intention with accused No. 1.

47. In our opinion, accused Nos. 1, 2 and 3 have been rightly convicted by the III Additional Sessions Judge, Solapur under section 302 read with section 34 of the Indian Penal Code and under section 323 read with section 34 of the Indian Penal Code and further accused No. 1 under section 506 of the Indian Penal Code.

48. In the result, Criminal Appeal No. 598 of 1980 by accused No. 1, Criminal Appeal No. 602 of 1980 by accused No. 2 and Criminal Appeal No. 577 of 1980 by accused No. 3 stand dismissed.


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