Case Note & Summary
The appeal arose out of a double murder and attempt to murder that occurred on 17 July 1986 at about 11.50 a.m. at Khandala, a hill station in Pune district, Maharashtra, when it was drizzling. The prosecution alleged that two deceased, Umesh Shetty and Shankar More, were shot at close range while sitting in a Fiat car outside Hotel Nagraj; injured witness Sham Sule (PW 15) survived. The incident was said to be the result of political rivalry between Umesh Shetty, a Shiv Sena sympathiser, and A-5, a leader of the rival Maratha Mahasangh. The appellants, original accused Nos. 3 and 4, were employees in a liquor shop run by A-2 and were alleged to have acted with common intention along with co-accused. The trial before the Additional Sessions Judge, Pune, resulted in conviction of all five accused under Section 120-B IPC, Sections 302/120-B IPC for two murders, Sections 307/120-B IPC for attempt to murder, and A-4 under Section 27 of the Arms Act. On appeal, the Bombay High Court acquitted A-1, A-2 and A-5, but altered conviction of A-3 and A-4 from Sections 120-B/302 IPC to Section 302/34 IPC for the two murders and upheld conviction under Sections 307/34 IPC; A-4 was convicted under Section 27 Arms Act without separate sentence. The appellants then filed special leave petition before the Supreme Court. The appellants contended that the eyewitnesses were partisan and their identification was unreliable because it was drizzling and visibility was poor; that conspiracy was not established and therefore conviction under Section 34 was not justified; and that the injured witness could not identify the assailants. The State supported the impugned judgment, arguing that both courts below had accepted the evidence of prosecution witnesses on identity and manner of assault, and that concurrent findings should not be disturbed unless perverse. The Supreme Court examined the judgments of the lower courts and the evidence on record. It found that the findings regarding guilt of the accused were not perverse or illegal and called for no interference. The Court noted that the High Court had negatived the prosecution case of conspiracy under Section 120-B, and the State had not challenged that finding. The core issue was whether the evidence established common intention under Section 34 for the murders and attempt to murder. The Court was satisfied that the identification of the appellants by eyewitnesses and the manner of the shooting were established beyond reasonable doubt. The concurrent findings of fact were accepted. In the result, the Supreme Court dismissed the appeal and upheld the conviction and sentence of the appellants under Section 302/34 IPC for two counts of murder, Section 307/34 IPC for attempt to murder, and A-4 under Section 27 of the Arms Act. Life imprisonment and other sentences were affirmed.
Headnote
A) Criminal Law - Common Intention - Conviction under Section 34 without proof of criminal conspiracy - Indian Penal Code, 1860 Sections 34, 302, 307 - The High Court altered the conviction of the appellants from Sections 120-B/302 IPC to Section 302/34 IPC for the two murders and upheld Section 307/34 IPC for attempt to murder, rejecting the charge of criminal conspiracy under Section 120-B. The Supreme Court examined the evidence and found that the concurrent findings of guilt under Sections 302/34 and 307/34 IPC were not perverse or illegal, holding that joint participation in the shooting was sufficiently established. (Paras 9, 12-13) B) Criminal Law - Identification Evidence - Reliability of eyewitness identification in poor visibility - Indian Penal Code, 1860 Sections 302, 307 - The appellants contended that the eyewitnesses were partisan and could not have identified the assailants because it was drizzling and visibility was poor. The Supreme Court, after going through the evidence and lower court judgments, accepted the identification of the appellants by the prosecution witnesses as reliable and not perverse, rejecting the defence argument on the facts. (Paras 10, 12) C) Criminal Law - Appreciation of Evidence - Non-interference with concurrent findings of fact by lower courts - Indian Penal Code, 1860 Section 302 read with Section 34 - The State argued that concurrent findings of two courts below on guilt based on appreciation of oral and documentary evidence should not be disturbed unless there was any illegality or grave error. The Supreme Court reiterated this principle and found no such perversity or illegality in the present case, thereby declining to interfere with the convictions. (Paras 11-12) D) Criminal Law - Criminal Conspiracy - Rejection of conspiracy charge under Section 120-B - Indian Penal Code, 1860 Section 120-B - The trial court convicted all five accused under Section 120-B, but the High Court acquitted A-1, A-2 and A-5 and altered the conviction of A-3 and A-4 to Section 34 IPC, thereby rejecting the prosecution case of criminal conspiracy. The Supreme Court noted that the High Court had negatived the conspiracy charge and the remaining conviction was examined under the principles of common intention. (Paras 1, 9, 13) E) Criminal Law - Arms Offence - Unlawful use of firearm - Arms Act, 1959 Section 27 - A-4 was convicted under Section 27 of the Arms Act for using a revolver/pistol during the incident; the High Court convicted A-4 under this section but awarded no separate substantive sentence. The Supreme Court found no illegality in this conviction and did not interfere with it. (Paras 1, 9, 12)
Issue of Consideration
Whether the High Court was justified in convicting the appellants under Sections 302/34 and 307/34 of the Indian Penal Code after acquitting them of criminal conspiracy under Section 120-B; whether the identification evidence of eyewitnesses was reliable despite drizzling and poor visibility; whether the concurrent findings of guilt were perverse or illegal
Final Decision
The Supreme Court, after examining the judgments of the lower courts and the evidence on record, found that the findings regarding guilt of the accused were not perverse or illegal and called for no interference. The appeal was dismissed and the conviction and sentence of the appellants under Section 302/34 IPC for two counts of murder, Section 307/34 IPC for attempt to murder, and A-4 under Section 27 of the Arms Act were upheld.
Law Points
- Common intention under Section 34 IPC can be established even if criminal conspiracy under Section 120-B is not proved
- concurrent findings of fact by lower courts will not be disturbed unless perverse or illegal
- identification of accused by eyewitnesses in poor visibility due to drizzling held reliable based on evidence
- life imprisonment under Section 302/34 IPC for double murder and conviction under Section 307/34 IPC for attempt to murder
- offence under Section 27 of Arms Act for using firearm without licence
