2003 ALL MR (Cri) 53
IN THE HIGH COURT OF JUDICATURE AT BOMBAY(NAGPUR BENCH)
R.K. BATTA AND V.M. KANADE, JJ.
Kashirao S/O Kisan Lahale & Ors. Vs. State Of Maharashtra
Criminal Appeal No.310 of 1997
23rd July, 2002
Petitioner Counsel: S/Shri. M. R. & RAJENDRA DAGA, J. B. KASAT
Respondent Counsel: Shri. MIRZA
Penal Code (1860), Ss.302, 149 r/w. S.34 - Evidence Act (1872), Ss.3, 27 - Appreciation of evidence - Recovery evidence - Murder - Mere recovery of sword, sticks and other weapons at instance of accused - Not sufficient to hold that accused have committed murder of deceased with common intention.
In the instant case even by itself even if, the said recovery of sword and other weapons is held to be proved that by itself would not be sufficient to hold that accused have committed the murder of deceased. It has not been established by the prosecution by either direct or circumstantial evidence that apart from accused no.1 the other accused were either seen by any of the witnesses examined by the prosecution assaulting the deceased and, therefore, in the absence of this crucial evidence, it will be difficult to hold the other accused guilty of the offence under Section 149 of the Indian Penal Code of sharing the common object and intention. [Para 20,21]
2001 Cri.L.J. 3965 - Distinguished.
State of U.P. Vs. Jhinkoo Nai, 2001 Cri.L.J. 3965 [Para 20]
Amir Hussain Vs. State of U.P., (1975) 4 SCC 247 : AIR 1975 SC 2211 : 1975 Cri.L.J. 1874 [Para 20]
Maina Singh Vs. State of Rajasthan, (1976) 2 SCC 827 : AIR 1976 SC 1084 : 1976 Cri.L.J. 835 [Para 20]
V. M. KANADE, J.:- The appellants herein were charged under Sections 302 read with Sections 147, 148, 149, 452 of the Indian Penal Code and were also charged independently under Sections 307 read with Section 149 of the Indian Penal Code. The Trial Court convicted the accused/appellant no.1 herein and accused nos.3 to 7 guilty for the offences punishable under sections 147, 148, 452 read with Section 149, 307 read with Section 149 and also under Section 302 read with Section 149 of the Indian Penal Code and they were sentenced to suffer Rigorous Imprisonment for life and so far as the offence under Section 302 read with Section 149 of the Indian Penal Code are concerned, they were convicted for three years for having committed an offence under Sections 307 read with Section 149 of the Indian Penal Code. The original accused no.2 Mohan s/o Kashinath Lahale had died during the pendency of the trial and, therefore, the trial against him has abated in view of his death. Appellant no.1 is the original accused no.1 and appellants nos.2 to 6 are the original accused nos.3 to 7. (For the sake of convenience they will be referred to original accused no.1 and accused nos.3 to 7). The appellants have challenged the said Judgment and Orders passed by the Additional Sessions Judge, Amravati in Sessions Trial No.87 of 1988, dated 25th July, 1997.
It is the case of the prosecution that the relations between accused no.1 Kashirao s/o Kisan Lahale and P.W.1 Pundlik Tulshiram Taksale were strained for a long time and P.W.1 Pundlik Tulshiram Taksale who initially used to stay in village Dhamori, had shifted his residence to another village namely village Saturna along with his wife and children since about one year before the date of the incident. It is the case of the prosecution that on 27-12-1987 at about 6.30 P.M. accused no.1 along with accused nos.3 to 7 and deceased accused no.2 formed an unlawful assembly to cause the death of P.W.1 Pundlik Tulshiram Taksale and his friends. It is the case of the prosecution that accused no.1 was armed with a sword, accused no.2 was armed with an axe, other accused were armed with lathis and the prosecution case in brief is that these accused entered the house of P.W.1 Pundlik Tulshiram Taksale and when one of the friends of P.W.1 Pundlik Tulshiram Taksale escaped from the rear door, these accused chased the said Subhash Varankar and assaulted him with sword, axe and sticks and committed his murder and, thereafter, came back to the house of P.W.1 Pundlik Tulshiram Taksale, pelted stones on his house and after P.W.1 Pundlik ran away from his house to save his life, these accused chased him and gave blows on the person of P.W.1 Pundlik, amputated his left arm and also caused injuries to his right arm and also assaulted him with sticks and sword and, thereafter, chased another friend of P.W.1 Pundlik. However, the said friend Jaiwanta was successful in catching an S.T. Bus and fled away from the scene of the offence.
3. The background of the case, according to the prosecution, is that the accused no.2 who died during the pendency of the trial, was the son of accused no.1, accused nos.4 and 5 are real brothers, accused no.7 is the son of accused no.6 and all of them are residents of village Dhamori. It is the case of the prosecution that initially P.W.1 Pundlik was also residing in village Dhamori. However, on account of the enmity between the two groups, P.W.1 Pundlik had abandoned the said village and had started residing in village Saturna. A Criminal Case under Section 324 of the Indian Penal Code was pending against P.W.1 Pundlik for having assaulted the present accused No.1.
4. Under these circumstances, on the date of the incident i.e. on 27-12-1987, when P.W.2 Gangadhar Patil, P.W.5 Jaiwanta, P.W.6 Charandas and deceased Subhash Varankar were going to village Dhamori in an Auto Rickshaw. P.W.1 Pundlik, who was standing at Rajkamal Square, Amravati, enquired with these persons as to where they were going and when he learnt that they were going to Dhamori, he also accompanied them.
5. It is the further case of the prosecution that these people reached Dhamori at about 5.00 p.m. Initially they went to the house of the father-in-law of P.W.2 who was the Sarpanch of the village namely, Pundlikrao Dhulwade, had a cup of tea at his residence and, thereafter, P.W.1 went to the weekly Bazar along with the P.W.6 Charandas, P.W.5 Jaiwanta Jadhao and Subhash Varankar. The father of P.W.1 met him in the Bazar and Pundlik told his father to purchase mutton, so that he could give a feast to his friends at night. Thereafter, he along with his friends returned to his house. P.W.1 told his mother to prepare mutton for his friends and P.W.2 Pundlik asked his friends Jaiwanta. P.W.5 and P.W.6 Charandas to go to the house of P.W.3 Raghunath and invite P.W.2 Gangadhar for the mutton feast.
6. The prosecution case further is that the house of accused no.1 is about five houses after the house of P.W.1 Pundlik. It is the case of the prosecution that all the accused nos.1 to 7 came together and assembled near the house of P.W.1 Pundlik and they were armed with deadly weapon and all the accused formed an unlawful assembly and they proceeded towards the house of P.W.1 Pundlik with a common object of killing P.W.1 Pundlik and his friends. It is the case of the prosecution that the accused abused P.W.1 Pundlik and threatened him that they would kill him as well as his friends. They hurled stones on his dwelling house and they entered the compound of the house. P.W.1 Pundlik closed the door of the house. However, his friend Subhash Varankar was frightened and he escaped from the rear door of the house and started going towards the S.T. Bus stand. However, the accused chased Subhash Varankar, gave number of blows on his person with deadly weapons i.e. sword, axe and sticks and as a result, Subhash died on the spot. Thereafter, they came back to the house of P.W.1 Pundlik and shouted that they had killed one person from Amravati, other had ran away and that now they would kill P.W.1 Pundlik. Pundlik tried to save himself by throwing tiles from the roof. However, he did not succeed and, therefore, he tried to run away from the house by jumping from one roof to other roof. However, the accused chased him and held P.W.1 Pundlik and accused no.1 who was holding a sword in his hand and gave the sword to his son deceased accused no.2 and all of them assaulted P.W.1 Pundlik on his left arm, as a result of which his left arm was amputated. They also gave blows, according to the prosecution, on the person of the P.W.1 Pundlik and on his other hand and, thereafter, went back to the village presming that P.W.1 Pundlik had died. They also carried the arm with amputated from P.W.1 Pundlik, showed it to his mother and, thereafter, ran away. These accused in the meanwhile had also tried to chase P.W.5 who had seen them with the weapon described above, however, he managed to escape from the clutches of the accused. The mother of P.W.1 Pundlik went to the place where Pundlik was lying on the ground, gave him water and took him to Kolhapur S.T. Stand and then to Kolhapur Police Station and, thereafter, he was referred to the hospital. The statement of P.W.1 Pundlik was recorded and offence was registered on the information of the incident given by deceased Tulshiram, father of P.W.1 Pundlik, vide Criminal Case No.148/87.
7. The prosecution case further is that they seized the weapons used in the commission of the offence namely, sticks, blood stained earth was collected, panchanama of the scene of offence was drawn, inquest panchanama was also drawn, the accused were arrested, the amputated hand of P.W.1 Pundlik was also referred to the Medical Officer and the house of accused no.1 was searched, where the blood stained sword was discovered at the instance of accused no.1 from his house. Blood stains were sent to the Chemical Analyser. Stick, axe and the broken pieces of sword were also sent to the Chemical Analyser for its report. Post Mortem was performed by the Medical Officer. He gave his opinion that the cause of death of Subhash was due to injury which were caused due to vital part on his body. A Chargesheet was filed against all the accused. Charge was framed against the accused as stated herein above. The accused pleaded not guilty to the said charge. The Trial Court on the basis of the evidence adduced by the prosecution, convicted the accused nos. 1 and 3 to 7 under Sections 302 read with Section 149 and other Sections mentioned in para 1 of the Judgment and sentenced them to suffer Rigorous Imprisonment for life and also for Rigorous Imprisonment for three years for having committed an offence under Section 307 read with Sections 147, 148 and 149 of the Indian Penal Code. The appellants have challenged the said Judgment and orders in this appeal.
8. We have heard the learned counsel appearing on behalf of the appellants and also the learned A.P.P. appearing on behalf of the State. We have gone through the depositions of the witnesses. We have also perused the documentary evidence on record. We have also gone through the Judgment and orders passed by the Sessions Court.
9. Learned counsel appearing on behalf of the accused has submitted that the witnesses examined by the prosecution are all interested witnesses and, therefore, much reliance can not be placed on the evidence of the said witnesses. He further submitted that the prosecution has deliberately held the identification parade after lapse of two months and has failed to offer reasonable explanation as to why the said identification parade has been held at a belated stage and as a result he submitted that the eye-witness account of P.W.5 in respect of the murder of Subhash will have to be discarded. He has submitted that so far as the murder of Subhash is concerned, P.W.5 who is the only so called eyewitness, the other witnesses have either arrived at the scene subsequently or have deposed that they had heard the accused shouting that they had killed one person from Amravati. He, therefore, submitted that there was no evidence adduced by the prosecution to support their case that the accused had committed the murder of deceased Subhash. He further submitted that so far as the P.W.1 Pundlik is concerned, sword blows which were given to him by the accused no.2 on his left arm and the arm was amputed. P.W.1 Pundlik has also stated that the accused no.1 had given his sword to accused no.2 who had then assaulted P.W.1 Pundlik on his arm. He submitted that therefore there was no intention of accused nos.1 and 3 to 7 to cause the death of P.W.1 Pundlik. He submitted that there they did not have a common object or intention of accused no.2. He submitted that therefore the accused nos.1 and 3 to 7 were liable to be acquitted of all the charges which were levelled against them.
10. Learned A.P.P. appearing on behalf of the State, has submitted that P.W.1 Pundlik in his evidence has categorically stated that all the accused had chased deceased Subhash. P.W.1 Pundlik also had deposed that the accused had shouted that they had killed one person who had come from Amravati. Similarly, the mother of P.W.1 also has stated that the accused no.1 had expressed that they had killed the said friend of Pundlik and that they would also kill P.W.1 Pundlik. Learned A.P.P., has submitted that this witness was not confronted or asked about the said statement, which was made by her and virtually the said evidence has gone unchallenged. He further submitted that it was apparent from the evidence on record that all the accused had come with predetermined mind to kill P.W.1 Pundlik and his friends and they had succeeded in killing deceased Subhash Varankar and had also practically succeeded in eliminating P.W.1 Pundlik, who had survived miraculously to depose before the court. Therefore, under these circumstances, conviction against the accused should be confirmed.
11. We have perused the evidence on record. The prosecution has in all examined as many as 12 witnesses. The prosecution has relied on direct as well as circumstantial evidence and also on the medical evidence to prove the case. The prosecution has examined P.W.1 Pundlik to prove the assault on him by the accused, who has survived to tell the tale about the assault by the accused. The rivalry between P.W.1 Pundlik and accused no.1 also has been proved by P.W.1 Pundlik and also by the other witnesses and it is not seriously challenged by the defence. The defence is of denial and alternatively it is submitted by the defence that the case at the most would fall under Section 326 of the Indian Penal Code so far as assault on P.W.1 Pundlik is concerned and similarly, so far as deceased Subhash is concerned, only evidence against them is that of P.W.5, who has witnessed that accused no.1 had given one blow with the sword on the leg of the deceased and as such, it is submitted by the defence that accused no.1 at the highest could be convicted under Sections 326 of the Indian Penal Code and not under Sections 302 read with Section 149 of the Indian Penal Code. Defence counsel further submitted that so far as the other accused are concerned, prosecution has not proved common object and intention and that there is no injury on the person of the deceased which has been caused by means of a stick and the injuries which are found were not fatal and they had not caused the death of deceased and, therefore, at the highest accused nos.3 to 7 could highest be convicted under Section 304 of the Indian Penal Code.
12. On examining the evidence of P.W.1 Pundlik. P.W.1 Pundlik has given the sequence of events of murder. He and his other friends were going to village Dhamori and reached there at 5.00 p.m. This evidence has been corroborated by the other witnesses and has not seriously challenged by the defence. He further has stated that all the accused started hurling stones at his house and they tried to enter the premises and they were asking him and his friends to come out of his house. He has stated that Subhash was in the house, however, because of the shouts, he ran away from the house towards the S.T. Stand and all the accused chased him after Subhash had left the house from the rear door. This witness has deposed that he saw through the chink of the door that these accused were chasing his friend. He has further deposed that after sometime accused came back and they shouted that they killed Amravatiwala and also were saying that now it was his turn to be killed. He has further stated that the accused entered the compound of his house and he left the house from the rear door after climbing up on the roof of his house and started throwing the country tiles on the roof, on the accused. However, accused nos.1 to 7 encircled him and he, therefore, jumped down from the roof, on the house of one Biharilal Agrawal and from there he ran from the house of Daryawasing Suryawanshi and, therefore, he started running towards the reservoir. However, the accused ran behind him and they accosted him in the midst of reservoir. P.W.1 Pundlik has further stated that accused no.1 gave a sword blow on his right hand, as a result, he pressed his injured hand with both his thighes and, thereafter, accused nos.3 to 6 started beating him with sticks, as a result he fell down and then accused no.1 handed over the sword to the deceased accused no.2 who held up his left hand straight and put it on the stick and two to three accused stood up behind him from the front side and 2 to 3 accused stood up from back-side and, thereafter, the deceased accused no.2 then began to give sword blows one after the another on his left hand which was amputated. Thereafter, he has stated that they took the amputed hand and moved towards his house. His mother came at the place where he was lying, gave him water and took him to the Police Station and thereafter, to the Hospital. In the Hospital, he learnt that Subhash Varankar was murdered. In the cross-examination, he has admitted that one case was pending against him for the offence punishable under Sections 324 read with Section 34 of the Indian Penal Code, for having assaulted the accused no.1 by sword. In the cross-examination, certain contradictions made by him in his evidence which was brought on record and the reference to his friend from Amravati being killed, as stated by him in his evidence was not found in his original statement which was recorded by the police and the said circumstance was improved by the defence. This witness has been cross examined at length on various aspects. However, in spite of the cross examination in respect of the relevant part of his testimony regarding the assault on him by the accused no.2 and active participation of the other accused, has stood the ground and that there has not been shaken. Further, though there is a slight improvement in his examination-in-chief, regarding the incident where he has mentioned that the accused had shouted that they had killed one of his friend from Amravatiwala and that he was the next person who will be killed, so far as that part of the statement is concerned, though the word Amravatiwala is not there in his original statement, yet he has mentioned that the accused had said that they had killed one man and chased away another and they had come to kill him. In view of this, we are of the view that the said contradiction of adding the word "Amravatiwala" is a minor contradiction.
13. P.W.2 Gangadhar Ajabrao Patil has also corroborated the evidence of P.W.1 Pundlik so far as the first part of his evidence regarding, they going to village Dhamori and eating a mutton feast in their house. This witness, however, has stated that at 7.00 p.m. he had heard shouts coming from the eastern side of the house of P.W.1 Pundlik and he had asked Charandas to go and find out what was the commotion which was going on. He has stated that Charandas returned in a frightened condition and he had informed that villagers were beating Subhash by the sword. He, therefore, went towards the scene of offence and he noticed that one person was holding an axe and sticks were found in the hands of the other person. P.W.2 Gangadhar has identified accused no.1 as a person who was holding the sword. He has also identified accused nos.3 to 6 who were holding the sticks and also accused no.4. He has also deposed about the presence of P.W.5 Jaiwanta. P.W.7 Gangubai has deposed that P.W.1 and his friend had come to their house and he had arranged mutton feast in the evening. She has also deposed that the accused had come to their house and that accused no.1 had expressed that they had killed the said friend of Pundlik and they would also kill P.W.1 Pundlik. She has further deposed that after the P.W.1 Pundlik was assaulted and was lying on the ground, she went to the spot and took him to the Police Station and thereafter to the hospital. P.W.7 Gangubai, therefore, has proved about the presence of the accused and also the presence of P.W.1 Pundlik lying in an injured condition. She has also stated that accused no.1 had expressed that he had killed deceased and he would kill P.W.1 Pundlik.
14. In our view, from the evidence of these witnesses, especially from the evidence of P.W.1 Pundlik, there is no manner of doubt that the accused nos.1 to 7 had come with common intention to assault him with deadly weapons and that all of them had assaulted him. Accused no.2 died during the pendency of the trial, gave number of blows on the left arm of the P.W.1 Pundlik as a result of which that arm was amputated. Thus, we have no hesitation to hold that the accused nos.3 to 7 also shared the common intention of accused nos.1 and 2. Unfortunately, the prosecution has not adduced medical evidence on record to prove that P.W.1 Pundlik had suffered other incise wounds on his vital parts of the body. Similarly, the prosecution has not proved that there were wounds on P.W.1 Pundlik which were caused as a result of stick blows. The prosecution has produced one injury certificate and has examined the Doctor who has given his opinion that the amputated arm which was found subsequently was the arm of P.W.1 Pundlik. In this view of the matter, it is difficult to hold that the common intention of the accused was to murder P.W.1 Pundlik. It is, no doubt, true that one arm of the accused was amputated. However, that by itself would not suggest that the accused wanted to murder P.W.1 Pundlik, especially in the absence of the medical evidence and the evidence of P.W.1 Pundlik, who has stated that the accused no.2 has given blows with sword on his left hand and accused no.1 had given a blow with a sword on his right hand. Thus, in our view, so far as Pundlik is concerned, it will have to be held that the accused are guilty of having committed an offence under Section 326 read with Section 149 of the Indian Penal Code. The Trial Court had convicted the accused for having assaulted P.W.1 Pundlik under Section 307 read with Section 149 of the Indian Penal Code though the conviction and sentenced them to suffer Rigorous Imprisonment for three years for the said offence. Though, in our view these conviction of the accused so far as the P.W.1 Pundlik is concerned, will have to be altered from Section 307 of the Indian Penal Code to under Section 326 read with Section 149 of the Indian Penal Code. However, we do not see any reason to reduce the sentence which is given by the learned Sessions Judge in the light of the injury i.e. amputation of hand, was though we have scaled down the offence from S.307 to S.326, I.P.C.
15. So far as the charge of Section 302 read with Section 149 of the Indian Penal Code, for having committed the murder of Subhash Varankar is concerned, the only direct evidence which is adduced by the prosecution is that of eyewitness P.W.5 Jaiwanta. P.W.5 Jaiwanta has stated that when he started proceeding towards the house of P.W.1 Pundlik to call Subhash and while he was on his way, he witnessed that Subhash was running and one person who was wearing shirt and paijama was having a sword in his hand and was chasing deceased Subhash Varankar and that the said person gave a sword blow on the left leg of Subhash Varankar. He has further stated that he has identified this person as accused no.1 both in the Court as well as in the identification parade. He has further stated that the accused No.1 told his other colleagues to look after Subhash Varankar and that he would go and take care of P.W.1. He has further stated that 3-4 persons, therefore, chased Subhash Varankar. This witness, however, does not identify the assailant who chased Subhash who was running towards the field. He has also stated in his evidence that 4-5 assailants also chased him. However, he successfully escaped and went towards the S.T. Stand and boarded the bus coming from Dhamori. This witness, therefore, has merely seen accused no.1 giving one blow with a sword on the leg of deceased Subhash Varankar.
16. The prosecution has examined P.W.11 Dr. Chandrabhan s/o Kanhaiyyalal Dara, who performed the post mortem of the deceased Subhash Varankar, who has noted the following injuries on the person of the deceased.
1. Incised wound left knee region laterally horizontal 4" x ¾" bone deep cutting chip fracture of left tibial upper end 1" deep.
2. Incised wound left wrist joint extensor surface extending from lower end of ulna to the base of thumb on dorsal side 4 ½" x 2" bone deep. Cutting all the syructures beneath in one plane. Hand hanging with only skin flap on ventral surface.
3. Incised wound left fore arm lower part above wrist joint. About 1 ½" above from injury No.2 on lateral surface of forearm 2 ½" x 2" bone deep cutting all structures in one plane. The part is attached only with skin flap on medial side.
4. Incised wound left side of occipital skull of oblique 1 ½" x ½" scalp deep.
5. Incised wound right side of occipital scalp oblique 1" x ½" scalp deep.
6. Incised wound right parietal scalp oblique 1" x ½" scalp deep.
7. Incised wound left fore arm middle one third laterally 1" x ½" muscle deep.
8. Contusion on ridge of nose 1" x 1".
9. Contusion above right eye brow 1½" x 1".
10. Contusion right iliac crest region 2" x 2".
1. Scalp is conjusted and there is haematoma in right parietal and occipital region.
2. There is sub dural haematoma in occipital region of brain matter.
3. Left radial artery is cut at wrist joint due to external injury No.3 injury mentioned in column 17.
18. P.W.11 Dr. Chandrabhan Dara has stated in his deposition that the external injury nos.4, 5, 6 and 3 and the three external injuries mentioned in column 17 were sufficient in the ordinary course of nature to cause the death. He has further mentioned that external injury nos.3, 4, 5 and 6 mentioned in column 17 were possible with sharp and cutting object. The perusal of the injuries will reveal that injury no.1 which has been mentioned in column no.17 is a injury on the left knee region, which is 4" x ¾". Thus, from the medical evidence on record, it will be clear that so far as the accused no.1 is concerned, at the highest, he could be held responsible for having inflicted the said injury. The said injury admittedly was not sufficient in the ordinary course of nature to cause death as opined by Dr. P.W.1 Chandrabhan Dara. P.W.5, therefore, does not attribute the role of the other accused or other persons who have inflicted the other injuries which are found on the person of the deceased Subhash Varankar. The other witnesses examined by the prosecution namely, P.W.6 Charandas, has admittedly reached at the scene of offence, after the assault was over and has merely witnessed that accused no.1 was holding a sword in his hand and he has identified the accused nos.5 and 7 as the persons who are holding sticks in their hands. He has also identified accused nos.3 and 6 and according to him, they were having an axe in their hand. This witness is, therefore, not a eyewitness and at the highest proves the presence of the accused after the assault was over.
19. In our view, therefore, the evidence on record does not establish beyond reasonable doubt, that the prosecution has proved that the accused nos.1 to 7 had committed the murder of Subhash Varankar. At the highest, accused no.1 will have to be held guilty of having assaulted Subhash with a sword on his left leg and for having caused grievous hurt.
20. The prosecution has also relied on other circumstantial evidence in the form of recovery of the sword and the sticks and other weapons which are recovered at the instance of the accused. Even if, the said recovery of sword and other weapons is held to be proved that by itself would not be sufficient to hold that they have committed the murder of Subhash. Learned A.P.P. appearing on behalf of the State, has relied on Judgment of the Apex Court in the case of State of U.P. Vs. Jhinkoo Nai, 2001 Cri.L.J. 3965, in which the Apex Court by considering the case of common intent, has examined the question regarding the distinction between causing the fatal and non-fatal wounds, when several persons simultaneously attack with common intent. The Apex Court has observed as follows :
"... when a murderous assault by many hands with many knives has ended fatally. It is legally impermissible to dissect the serious ones from the other and seek to salvage those whose stabs have not proved fatal. When people play with knives and lives, the circumstances that one man's stab falls on a less or more vulnerable part of the person of the victim is of no consequence to fix the guilt for murder. Conjoint complicity is the inevitable inference when a gory group animated by lethal intent accomplish their purpose cumulatively. Section 34, IPC fixing constructive liability conclusively silences such a refind plea of extrication. (See Amir Hussain Vs. State of U.P., (1975) 4 SCC 247) : (A.I.R. 1975 SC 2211) : 1975 Cri.L.J. 1874); Maina Singh Vs. State of Rajasthan, (1976) 2 SCC 827 : (AIR 1976 SC 1084 : 1976 Cri.L.J. 835). Lord Summer's classic legal shorthand for constructive criminal liability, expressed in the Miltonic verse. They also serve who only stand and wait a fortiori embraces cases of common intent instantly formed, triggering a plurality of persons into an adventure in criminality, some hitting, some missing, some splitting hostile heads, some spilling drops of blood. Guilt goes with community of intent coupled with participatory, presence or operation. No finer juristic niceties can be pressed into service to nullify or jettison the plain punitive purpose of the Penal Code...."
21. There can not be any doubt regarding the said ratio laid down by the Apex Court. However, the said Judgment would not be applicable to the facts of the present case which are entirely different. In the present case, it has not been established by the prosecution by either direct or circumstantial evidence that apart from accused no.1 the other accused were either seen by any of the witnesses examined by the prosecution assaulting the deceased and, therefore, in the absence of this crucial evidence, it will be difficult to hold the other accused guilty of the offence under Section 149 of the Indian Penal Code of sharing the common object and intention. The said submission of the learned A.P.P., therefore, can not be accepted that all the accused are liable under Section 302 read with Section 149 of the Indian Penal Code for having committed the murder of Subhash Varankar.
22. In our view, therefore, the accused no.1 at the most, can be held guilty of having committed an offence under Section 326 of the Indian Penal Code, for having assaulted the deceased Subhash on his leg. So far as other accused are concerned, in our view, there is no evidence to suggest that they were involved in the said offence and, therefore, they will have to be acquitted for having committed an offence under Section 302 read with Section 149 of the Indian Penal Code.
23. However, taking an over all view of the matter, it has been established that the accused nos.1 to 7 did assault on P.W.1 Pundlik who was a driver by occupation and his left hand was amputated in the brutal attack by the accused. It has been established that all the accused shared the common intention. In view of this peculiar circumstances, in our view, the ends of justice would be met, if they are convicted for an offence under Section 326 read with Section 147 of the Indian Penal Code and sentenced to undergo 3 years of Rigorous Imprisonment which has already been awarded by the Sessions Court and the said conviction, though altered to Section 326 read with Section 149 of the Indian Penal Code also along with fine which has been imposed by the Sessions Court, is confirmed.
24. Over and above the said sentences so far as accused no.1 is concerned, he is further convicted under Section 326 of the Indian Penal Code for having caused grievous hurt to Subhash and is sentenced to undergo further Rigorous Imprisonment for a period of three years and also to pay fine of Rs.1,000/- in default to undergo further Rigorous Imprisonment for a period of 6 months. It is clarified that this sentence of 3 years so far as accused no.1 is concerned will run consecutively and not concurrently as it is in respect of an assault on another person Subhash in a separate incident. The appeal is, therefore, partly allowed in the above terms.
25. The accused nos.3 to 7 are directed to surrender within four weeks. It is further clarified that the accused who are in custody either before the trial commenced or after they are convicted by the Sessions Court, the period undergone by them in Jail should be adjusted towards the final sentence which has been awarded by this Court.