Case Note & Summary
The appellants, Kishor and Samadhan Shirsath, were convicted by the Additional Sessions Judge, Aurangabad for the murder of Kapil under Section 302 read with 34 IPC and sentenced to life imprisonment. The prosecution case was that on 16-01-2013, after a heated exchange between PW1 Pawan and appellant Samadhan, the appellants and others assaulted PW1 and Kapil. Appellant Kishor allegedly stabbed Kapil with a knife, causing his death. The trial court convicted both appellants. On appeal, the High Court examined the evidence of PW1, PW2, PW3, and PW6. The court found that the prosecution failed to prove the common intention of both appellants to commit murder. The role of appellant Samadhan was not clearly established, and the evidence showed that the deceased and PW1 had gone to the spot voluntarily. The court held that the conviction under Section 302 read with 34 IPC was not sustainable and acquitted both appellants, giving them the benefit of doubt.
Headnote
A) Criminal Law - Murder - Common Intention - Section 302 read with 34 IPC - Conviction set aside - Prosecution failed to establish common intention and specific overt acts of each appellant - Held that mere presence at the scene does not attract Section 34 IPC (Paras 1-13).
Issue of Consideration
Whether the conviction of the appellants under Section 302 read with 34 IPC is sustainable in law.
Final Decision
Appeal allowed. Conviction and sentence set aside. Appellants acquitted of all charges. They are directed to be set at liberty if not required in any other case.
Law Points
- Common intention
- Unlawful assembly
- Section 34 IPC
- Section 302 IPC
- Acquittal
- Benefit of doubt
Case Details
2023 LawText (BOM) (11) 6
Criminal Appeal No. 535 of 2017
Smt. Vibha Kankanwadi, Abhay S. Waghwase
Mr. Rajendrraa Deshmukh, Senior Counsel i/b. Mr. Devang R. Deshmukh for Appellants; Mr. S.J. Salgare, APP for Respondent-State
Kishor s/o Muralidhar Shirsath and Samadhan s/o Muralidhar Shirsath
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Nature of Litigation
Criminal appeal against conviction for murder
Remedy Sought
Appellants sought acquittal from conviction under Section 302 read with 34 IPC
Filing Reason
Appellants were convicted by trial court for murder of Kapil
Previous Decisions
Trial court convicted both appellants on 15-09-2017 in Sessions Case No.153 of 2013
Issues
Whether the conviction under Section 302 read with 34 IPC is sustainable
Submissions/Arguments
Prosecution failed to prove motive and common intention
Appellants were not part of unlawful assembly
Evidence of witnesses is unreliable
Ratio Decidendi
The prosecution must prove common intention under Section 34 IPC by clear evidence of prior concert or pre-arranged plan. Mere presence or participation in a fight does not establish common intention to commit murder.
Judgment Excerpts
Both appellants are hereby assailing judgment and order of conviction passed by the learned Additional Sessions Judge, Aurangabad dated 15-09-2017 in Sessions Case No.153 of 2013 by which both appellants are held guilty and thereby convicted for offence under Section 302 read with 34 of the Indian Penal Code (IPC) and sentenced to suffer imprisonment for life.
Procedural History
Trial court convicted appellants on 15-09-2017. Appellants filed Criminal Appeal No. 535 of 2017 before Bombay High Court. Appeal reserved on 27-10-2023 and pronounced on 03-11-2023.
Acts & Sections
- Indian Penal Code, 1860 (IPC): 302, 34
