1994 ALLMR ONLINE 42
BOMBAY HIGH COURT
E.S. DA SILVA, J.
Bosco Lourence Fernandes, and others Vs. State
Criminal Revision Application No. 27 of 1993
14th January, 1994
Penal Code (1860),S. 334 Penal Code (1860),S. 34 Probation of Offenders Act (1958),S. 4
1978 Cri LJ 1538 : AIR 1978 SC 1492 [Para 10]
JUDGMENT :-This revision is directed against the judgment of the learned Sessions Judge, Margao, dated 26th May, 1993 affirming the conviction imposed on the petitioners by the learned J.M.F.C., Margao, vide judgment and order dated 15-4-92 whereby they were convicted for offences under Sections 324 and 323 read with Section 34 of I.P.C., and each of them cumulatively sentenced to undergo six months simple imprisonment and to pay a fine of Rs. 1,500/- or in default to undergo one month simple imprisonment. This judgment was challenged by the petitioners before the learned Sessions Judge in appeal which was partly allowed and the learned Sessions Judge while upholding the petitioners' conviction however modified the sentence in respect of petitioners Nos. 1 and 2 to the extent that the sentence awarded to them was reduced from six months simple imprisonment and fine to the payment of fine only, while the sentence of the petitioner No. 1 was confirmed to toto.
2. The prosecution case was that on 30-3-1992, at about 9.30 a.m., there was an incident between Errappa Hanumantappa and the petitioner No. 3 on account of a gold chain during which the said petitioner along with petitioners Nos. 1 and 2 came to assault him. At this time Erappa's brother-in-law Eknath came on his rescue but the petitioners Nos. 1 and 2 caught hold of his hands and petitioner No. 3 stabbed him with a knife on his chest and other parts of his body. Thereupon when Errappa was going to complain to the police petitioner No. 3 assaulted him also by pelting a stone on his head as a result of which he sustained a bleeding injury and fell on the ground unconscious. Both Errappa and Aknath were taken to the Hospicio Hospital where they were given medical treatment.
4. It was firstly contended by Shri Sardessai, learned counsel appearing for the petitioners, that as far as petitioner No. 3 is concerned there was no evidence for the learned trial Magistrate and for that matter for the learned Sessions Judge also to come to the conclusion that he had committed any offence of assault either on P.W. 2 Errappa or on P.W. 3 Eknath. It was urged by the learned counsel that the testimony of the defence witnesses was not shaken at all during their cross-examination and that they have consistently deposed to the effect that the petitioner No. 3 was dragged and assaulted by the said Errappa. Shri Sardessai submitted that if the testimony of the prosecution witnesses was to be accepted there was no reason as to why the defence witnesses should not also be believed in the same manner. Being so the learned counsel insisted that this would be a case of word against word and in the circumstances it could not be said that the learned Magistrate had before him any objective material and relevant evidence to substantiate a finding of conviction against the petitioners for the offences under which they were charged. Learned counsel pointed out that P.W. 2 Errappa had admitted having stopped the petitioner No. 3 to inquire about his gold chain and that thereafter a scuffle having followed
between them. This fact was corroborated by the deposition of D.W. 2 Virendra as well as by D.W. 3 Rosy who have deposed that she had seen P.W. 2 Errappa dragging out petitioner No. 3 from his house which by itself suggests that there was a clear provocation on the part of Errappa against petitioner No. 3. Further the Police Officer who testified in this matter has also stated that the petitioner No. 3 had been twice at the Police Station, being for the first time alone and for the second time along with petitioner No. 1. This circumstance would indicate, according to the learned counsel, that the said petitioner No. 3 was very much an aggrieved person and had thus sought to approach the concerned authorities in order to seek redressal to his grievances. The learned counsel then insisted that there could not be any offence of hurt voluntarily caused by petitioner No. 3 either against Errappa or against Eknath punishable under Section 323 or 324 of I.P.C., which offence could not arise for total lack of intention on the part of petitioner No. 3 to cause hurt. At the most, learned counsel conceded, an offence under Section 334 of I.P.C. could be envisaged as a result of the injuries sustained by Eknath being this hurt caused on account of sudden provocation.
5. Although the learned counsel has canvassed all these submissions with considerable ability and vehemence, I am, however, afraid that it is not possible for me to subscribe to the views sought to be made out by him. The evidence of the prosecution witnesses which have been relied by the learned trial Magistrate clearly show that an actual assault was committed by the petitioner No. 3 on Eknath with the use of a knife and thereafter with a stone on Errappa when he was on his way to the Police Station to lodge a complaint that Eknath had been stabbed. The said evidence also shows that the stabbing of Eknath was done by petitioner No. 3 after petitioners Nos. 1 and 2 manhandled him by catching hold of both his arms. The testimony of the defence witnesses even if accepted appears to refer altogether to an incident prior to the actual assault committed by the petitioners on both Eknath and Erappa. Therefore the fact of believing the defence witnesses would certainly not help the petitioners so as to justify their actions or substantiate a case of sudden provocation as attempted to be established by the petitioners' learned counsel.
6. The learned Sessions Judge has also rightly scrutinised the evidence relied by the prosecution and upheld the findings of the learned Magistrate on the basis of such evidence. I see no irregularity or perversity in this exercise done by the learned Sessions Judge and I am in full agreement with him when he chose to affirm the said findings on the strength of the evidence available on record. Therefore the question of the element of intention being found missing in the scuffle which has caused grievous injury on Eknath as a result of blows given on him with a knife does not seem to arise at all.
7. Similarly as far as petitioners Nos. 1 and 2 is concerned there is nothing on record to suggest that when they caught hold of the arms of Eknath they were not aware nor willing to help the petitioner No. 3 to inflict on him stabbing injuries on his body.
8. Further Shri Sardessai's efforts to get the purported assault by petitioner No. 3 on Eknath qualified under Section 334, I.P.C., appears to be also not well founded. Section 3.34 of I.P.C., refers to an offence of voluntarily causing hurt on provocation and applies when the person voluntarily causes hurt on grave and sudden provocation, if he neither intends nor knows himself to be likely to cause hurt to any person other than the person who gave the provocation. In the instant case it is seen that even assuming that the petitioner No. 3 was provoked or instigated by P.W. 2 Errappa, it is impossible to believe that while assaulting. Eknath with a knife who had purportedly gone on Errappa's rescue while he was being assaulted by the petitioner No. 3 he neither intended nor knew to be likely to cause hurt to Eknath, more so when this assault was ostensibly committed with the help of the remaining petitioners Nos. 1 and 2 after being physically manhandled by them.
9. It was next submitted by the learned petitioners' counsel that as far as petitioners Nos. 1 and 2 are concerned there could not be any case of their being responsible for the assault on Eknath by virtue of application of Section 34 of I.P.C., It was urged by the learned counsel that in order to enable the Court to convict them under the said provision a prior meeting of minds was required to have been established by the prosecution. This according to the learned counsel, was the vital factor which could justify their being found jointly guilty for the stabbing injuries purportedly inflicted by petitioner No. 3 on Eknath with the use of a knife. The learned counsel has made a grievance that the learned Sessions Judge has not applied properly the law as far as Section 34 is concerned and wrongly involved the said petitioners in the commission of the said offence.
injuries on Eknath's body with the knife only after he was caught hold of his hands by both petitioners Nos. 1 and 2. This is an important aspect to be considered and which points out to the physical and actual participation of all the three petitioners in the aforesaid assault. Nothing more was required to be shown or proved by the prosecution to bring home the prior meeting of minds on the part of the petitioners in the commission of the offence. Reliance placed by the learned counsel in the case of Dharam Pal v. State of Haryana, AIR 1978 SC 1492 : (1978 Cri LJ 1538) seems thus completely misplaced. In the said case which is dealing with the offence of murder under Sections 34 and 300 of I.P.C., and in which several accused were allegedly involved the question of constructive liability of the companions of the principal culprit was considered for the purpose of determining the proof of common intention. The Court then observed that it may be that when some persons start with a pre-arranged plan to commit a minor offence, they may in the course of their committing the minor offence come to an understanding to commit the major offence as well. 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 incriminating evidence but the conduct or other evidence must be such as not to leave any room for doubt in that behalf. The Supreme Court then reiterated that for fastening vicarious liability one must satisfy himself as to the prior meeting of the minds of the principal culprit and his companions who are sought to be constructively made liable in respect of every act committed by the former. The Supreme Court then made it clear that there is no law which lays down that a person accompanying the principal culprit shares his intention in respect of every act which the latter might eventually commit. The existence or otherwise of the common intention depends upon the facts and circumstances of each case. The intention of the principal offender and his companions to deal with any person who might intervene to stop the quarrel must be apparent from the conduct of the persons accompanying the principal culprit or some other clear and cogent incriminating piece of evidence. In, the absence of such material, the companion or companions cannot justifiably be held guilty for every offence committed by the principal offender. The common intention to commit an of fence graver than the one originally designed may develop during the executing of the original plan, that is to say, during the progress of an attack on the person who is intended to be beaten but the evidence in that behalf should be clear and cogent for suspicion, however strong, cannot take place of the proof which is essential to bring home the offence to the accused.
11. I have no dispute and indeed am in respectful agreement with the observations of the Supreme Court. But the fact remains that ours appears to be a case in which the intention of the companions of the principal offender is obvious from the fact, given as proved by both the Courts below, that while assaulting Eknath the petitioner No. 3 took physical help of the remaining two petitioners who ostensibly caught hold of his arms while the stabbing was being done by petitioner No. 3. This very circumstance speaks by itself and need not require any further evidence to suggest the existence of a prior meeting of minds or at least the meeting of the minds at the time of the actual commission of the offence. Hence in the facts and circumstances of the case the question sought to be raised by the learned counsel for the petitioners with regard to the non-applicability of Section 34 of I.P.C., does not even seem to arise at all. Thus the second submission of the learned counsel also fails.
12. It was lastly pleaded by Shri Sardessai that in case this Court was not inclined to accept that the petitioners were not to be found guilty the benefit of the provisions of the Probation of the Offenders Act should be applied to them in the facts and circumstances of the case: This submission of the learned counsel is also impermissible and cannot be even considered being thus hound to be rejected. There is no material at all on record to justify the use of an undue leniency in favour of the petitioners, namely, the petitioner No. 3 so much so when the petitioners Nos. 1 and 2 have been already lightly dealt with by the learned Sessions Judge. Once I am satisfied that the findings given by the learned Judge after a detailed reference to the evidence cannot be said to be perverse or made in the improper exercise of his jurisdiction there seems to be no case for interference on the part of this Court in the otherwise well conceived judgment and the judicious discretion used by him which is sought to be impugned in this revision.