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CASE NO.: Appeal (crl.)  481 of 2007

PETITIONER: Laxman Anaji Dhundale & another

RESPONDENT: State of Maharashtra

DATE OF JUDGMENT: 04/04/2007

BENCH: S. B. Sinha & Markandey Katju

JUDGMENT: J U D G M E N T CRIMINAL APPEAL NO. 481    2007 [Arising out of Special Leave Petition (Crl.) No. 6392/2006]

MARKANDEY KATJU, J.               

Leave granted.

       This appeal has been directed against the impugned judgment and  order dated 20.3.2006 of the Bombay High Court, Nagpur Bench in  Criminal Appeal No. 199 of 2002.

       Heard learned counsel for the parties and perused the record.

       The case of the prosecution is that the deceased Kalpana was married  to accused No. 1 Rajendra Dhundale on 18.3.2001 in a village known as Uti  Tq. Jalgaon Jamod which is 3 kms away from village Kherda (Khurd) of the  complainant Bhaskar Sampat Damodhar (PW1), who is the father of the  deceased.   Within 15 days of her marriage the deceased returned to her  parents’ place along with her husband and informed her parents that her  husband accused No. 1 Rajendra is demanding ornaments for the purpose of  construction of a new house.  She told her father to give the money to her  husband otherwise she would be required to dispose of her ornaments.  On  this, Bhaskar Damodhar (PW1) informed accused No. 1 Rajendra that he has  Rs. 5000/- but Rajendra refused to take the amount and demanded Rs.  10,000/- for the time being.  Bhaskar Damodhar (PW1) paid the sum of Rs.  5,000/- and assured accused No. 1 Rajendra that he would give the balance  amount of Rs. 5000/- after 15 days.  Thereafter, on the eve of Akhadi  festival a brother of deceased Kalpana fetched her to her parents house.  On  the next day accused No. 1 Rajendra also came to attend a marriage in their  village and he resided with them for three days.  During that period Kalpana  informed her parents that she has been harassed to get the balance amount by  her husband and his relatives.  On this, Bhaskar assured accused No. 1  Rajendra that he would give the remaining amount of Rs. 5,000/- after  selling his cattle and persuaded him to take Kalpana along with him and  thereafter the deceased left with her husband.         On the next morning, original accused No. 4 Balu came to the  complainant’s house and informed that his daughter has fallen into a well.   On getting this information, the complainant went to the village of the  accused persons along with his relatives and found the dead body of his  daughter which was lying covered with a cloth with injuries on her person.   The complainant Bhaskar (PW1) also noticed burn marks on her head, leg  and back.  He was informed that his daughter had gone to a well for drawing  water and there she accidentally slipped into the well.  As Bhaskar (PW1)  suspected that the death of his daughter was not natural, he went to the  Police Station Jalgaon Jamod for lodging a report.

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       The appellants who are the parents of accused No. 1 Rajendra, are  accused Nos. 2 & 3 in this case.   The trial court convicted them along with  accused No. 1 under Section 302/34 IPC and sentenced them to life  imprisonment.   They were also found guilty under Sections 498A/34 IPC  and were sentenced to three years’ R.I. and also a fine.

       The appeal of the accused Nos. 2 & 3 in the High Court was  dismissed and hence this appeal by way of special leave.

       From the medical evidence on record as well as the other evidence it  appears to us that the deceased Kalpana was murdered.  The post mortem  report shows that there are injuries in her chest as well as in the abdomen.   There was abdominal bleeding injury to the liver of deceased Kalpana and  also there was a lacerated wound over her scalp caused due to hard or blunt  object.  Hence we cannot agree with the learned counsel for the appellants  that it was a case of suicide, rather we are of the opinion that it was a case of  homicide.  This is further corroborated by the fact that the spot Panchnama  (Ex.25) shows that the well in question was not in use as it did not have  bucket, rope or chain to fetch the water and there was not even sufficient  water.

       However, since this is a case of circumstantial evidence, we have to  see whether the chain of links connecting the accused Nos. 2 & 3 to the  deceased is established beyond reasonable doubt.  We are of opinion that it  is not.  There is no credible evidence showing that the accused Nos. 2 & 3  (appellants in this appeal) caused the death of the deceased.  There is also no  credible evidence of any common intention of the appellants along with their  son Rajendra to cause the death of the deceased Kalpana.  There is no doubt  evidence that accused No. 1 Rajendra demanded ornaments from his wife  Kalpana for selling the same for the purpose of purchasing tins and wooden  ballies for making a roof of his house.  However, we are not dealing with the  case of accused No. 1, Rajendra in this appeal.  We are only concerned with  the question whether the guilt of the appellants, who are the parents of  Rajendra, is proved beyond reasonable doubt.  We are of the opinion that it  is not.

As regards invocation of Section 34 IPC, it was held by the Privy  Council in Mahbub Shah vs. Emperor [AIR 1945 PC 118 @ 120] as  follows:

"To invoke Section 34 successfully, it must be  shown that the criminal act complained against was done  by one of the accused persons in the furtherance of the  common intention of all; if it is shown, then liability for  the crime may be imposed on any one of the persons in  the same manner as if the act were done by him alone.   This being the principle, it is clear to their Lordships that  common intention within the meaning of the section  implies a pre-arranged plan, and to convict the accused of  an offence applying the section it should be proved that  the criminal act was done in concert pursuant to the pre- arranged plan.  As has been often observed, it is difficult  if not impossible to prove the intention of an individual;  in most cases it has to be inferred from his act or conduct  or other relevant circumstances of the case."

                                                       (emphasis supplied)

In Hamlet vs. State of Kerala  [2003 (10) SCC 108, vide para 17],  this Court held that to establish the common intention of several persons to  attract Section 34 IPC, the following two fundamental facts have to be  established: (i)  common intention and (ii) participation of the accused in

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commission of the offences.  In the present case, neither common intention  nor participation of the appellants in the commission of the offence has been  established beyond reasonable doubt.

No doubt, as held by this Court in Anil Sharma vs. State of  Jharkhand [2004 (5) SCC 679, vide para 17] direct proof of common  intention is seldom available and, therefore, such intention can only be  inferred from the circumstances appearing from the proved facts of the case.   However, in order to bring home the charge of common intention the  prosecution has to establish by evidence, whether direct or circumstantial,  that there was plan or meeting of minds of all the accused persons to commit  the offence for which they are charged with the aid of Section 34.  In the  present case there is no credible evidence, direct or circumstantial, that there  was such a plan or meeting of minds of all the accused persons to commit  the offence in question.  Hence, in our opinion, the charge under Section 34  IPC has not been established. For the reasons given above, we are of the opinion that the benefit of  doubt has to be given to the appellants and hence this appeal has to be  allowed.  We order accordingly.  Resultantly, the impugned judgment and  order of the High Court as well as the trial court so far as they relate to the  appellants are set aside.  The appellants shall be released forthwith unless  required in connection with some other case.  However, we make it clear  that we are not expressing any opinion about the case of accused No. 1,  Rajendra.