CRL.A. NO. 85 OF 2008                                                                                                                                                      REPORTABLE 1

       IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 85 OF 2008

KRISHNAT BHIMRAO SHINDE & ANR. ..... APPELLANTS

VERSUS

STATE OF MAHARASHTRA & ANR. ..... RESPONDENTS

O R D E R

1. This appeal is directed against the concurrent  

judgments of conviction and sentence of the appellants  

for having committed an offence under Section 302 read  

with Section 34 of the Indian Penal Code by two of the  

four accused, the other two having chosen not to file  

an appeal in this Court.

2. As  per  the  prosecution  story,  the  deceased  

Sadashiv Kundalik Sataverkar was residing in village  

Kakhe along with his wife Rajashri – P.W. 2 and their  

children Pravin and Suraj.  His elder brother P.W. 8 –  

Mahadev  and  P.W.  10  –  Sunita  (sister-in-law  of  the  

deceased), her mother-in-law P.W. 9 – Asha were also  

residing  in  a  nearby  lane.   Accused  Sambhaji  Bapu  

Shinde, Tanaji Bapu Shinde, Krishnat Bhimrao Shinde are

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brothers  whereas  the  fourth  accused  Babu  Rao  Bapu  

Shinde was their cousin.  As per the prosecution story,  

the deceased had let out the open space in front of his  

house to Tanaji Bapu Shinde -A2 for the purpose of  

running a cycle shop.  It appears, however, that A-2  

had cast some aspersions on P.W. 2- Rajashri and when  

this information was conveyed to P.W. 8 – Mahadev and  

further to the deceased a quarrel had ensued between  

Mahadev and the deceased on the one hand and A2 on the  

other  and  as  a  consequence   A-2  had  been  asked  to  

vacate  the  shop.   A  week  prior  to  the  incident  in  

question,  A-1  Sambhaji  Bapu  Shinde  had  also  

deliberately dashed his motor cycle against Suraj, the  

son  of  the  deceased,  causing  him  minor  injuries  

whereupon the deceased had caught him by his collar and  

given him a few slaps but on the intervention of those  

who had gathered at the site, they had been separated.  

A-1 had, however,  left threatening the deceased with  

dire  consequences.   At  about  3:30  p.m.  on  25th  

November, 1999, the deceased and P.W. 2 - Rajashri had  

gone to Kodoli to the weekly bazaar and after making  

their purchases they returned to their village Kakhe in  

a jeep belonging to one Pandurang  Shinde.  They got  

down near the bus stand and started walking towards  

their residence and as they were doing so, P.W. 3,  

Shivaji who too had a cycle shop called the deceased

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for sharing some pan.  The deceased then went into the  

shop  while P.W. 2 – Rajashri waited for her husband a  

short distance ahead by the side of the road.  The  

deceased then left Shivaji's shop to join his wife and  

as he was on his way  Rajshri heard shouts from the  

rear and on looking that side saw the four accused  

armed with various weapons attacking her husband.  She  

also noticed that Sambaji Bapu  Shinde and Tanaji Bapu  

Shinde were armed with an axe and sickle respectively  

whereas  the  other  two  Krishnat  Bhimrao  Shinde  and  

Baburao Bapu Shinde were armed with lathis.  The attack  

was opened on the deceased by A1 and A2 and they caused  

serious injuries on the neck and head of the deceased  

with an axe and sickle and after he fell to the ground,  

some  injuries  were  caused  to  him  by  the  other  two  

accused as well.  P.W. 8 – Mahadev was immediately  

informed about the incident by one B.R. Patil and he  

too rushed to the scene of the crime and thereafter  

accompanied by P.W. 2 – Rajashri,  to police station  

Kodoli  and  lodged  the  FIR  at  5:30p.m.   The  police  

officers reached the place of incident and made the  

necessary enquiries and sent the dead body for its post  

mortem examination.  A2, A3 and A4 were arrested on 26th  

November, 1999 whereas A1 was arrested on the 1st of  

December, 1999. On the completion of the investigation,  

the  accused  were  charged  for  an  offence  punishable

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under Section 302/34 of the IPC and as they pleaded  

innocence, they were brought to trial.  In support of  

its case, the prosecution relied on 17 witnesses, the  

primary one being P.W. 2 – Rajashri the solitary eye  

witness whose statement was sought to be corroborated  

by P.W. 8 – Mahadev, P.W. 9 Asha and P.W. 10 – Sunita  

who had received the information about the incident  

from Rajashri.  All the other eye witnesses and others  

relating to the circumstantial evidence were, however,  

declared hostile at the trial.  The trial court and  

High Court relying on the statement of P.W. 2, P.W. 9  

and P.W. 10, as supported by the evidence of P.W. 12  

-Dr. Shrikant who had performed the post mortem, held  

the accused guilty and sentenced them to imprisonment  

for life under Section 302/34 of the IPC.  An appeal  

taken to the High Court was thereafter dismissed.  As  

already indicated, the present appeal has been filed  

only at the instance of A3-Krishnat Bhimrao Shinde and  

A4-Baburao Bapu Shinde, the two accused who are said to  

have been armed with lathis.   

Mr.  R.  Sundaravardhan,  the  learned  senior  

counsel for the appellants has raised several arguments  

during the course of the hearing.  He has first and  

foremost pointed out that the evidence of P.W. 2 –  

Rajashri,  the  solitary  eye  witness  and  the  closest  

relative of the deceased could not be  believed without

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adequate  corraboration  and  as  all  the  independent  

witnesses  including  some  who  had  witnessed   the  

incident had been declared hostile, it was clear that  

there was no credible evidence against the appellants.  

He  has  further  submitted  that  the  reliance  of  the  

courts below on the statements of P.W. - 8, P.W. 9 and  

P.W. 10 as corroborating the statement of P.W. 2 was  

also not called for as these three had not witnessed  

the incident and had reached the place soon after the  

murder had been committed and as they were also closely  

related  to  the  deceased  their  evidence  was  clearly  

suspect.  It  has  also  been  submitted  by  Mr.  

Sundaravardhan that the eye witness account was not  

supported by the medical testimony in as much that the  

injuries  said  to  have  been  caused  with  lathis  were  

obviously not lathi injuries as these were abrasions  

whereas lathis would have caused only contrusions.  He  

has  finally  pleaded  that  the  main  role  had  been  

ascribed  to  A1  and  A2,  non-appellants  and  as  the  

present appellants had been armed only with lathis the  

question of the applicability of Section 34 of the IPC  

to show their common intention with the main accused  

had  not  been  proved  on  record.   He  has  in  this  

connection relied upon Dharam Pal v. State of Haryana  

(1978) 4 SCC 440,  Mohinder Singh & Anr. v.  State of  

Delhi AIR 1975 SC 1506 and Rajender Singh & Ors.  v.

CRL.A. NO. 85 OF 2008                                                                                                                                                      REPORTABLE 6

State of Bihar (2000) 4 SCC 298.    

Mr. Ravindra Kumar Adsure, the learned counsel  

for the State of Maharashtra has, however, pointed out  

that the FIR had been lodged within two hours of the  

incident in which all details pertaining to what had  

happened earlier and on the day in question had been  

spelt out and the promptness of the FIR pointed towards  

the truthfulness of the prosecution story.  It has also  

been pleaded that a perusal of the evidence of P.W. 2  

as  supported  by  the  evidence  of  P.Ws.  8,9  and  10  

clearly proved the case of the prosecution and merely  

because  they  happened  to  be  closely  related  to  the  

deceased  was  not  a  ground  to  disbelieve  them  more  

particularly so as the bitterness between the families  

had existed for sometime on account of the slander that  

the accused had been spreading about Rajashri – P.W.2.  

He has also pointed out that all the accused had come  

fully armed to the place of incident and as Sambaji  

Bapu Shinde -A1 the prime mover in the incident and who  

had  been  beaten  by  the  deceased  on  account  of  the  

accident involving Suraj had held out a threat that he  

would kill him one day and as all the accused were  

closely  related  to  each  other,  three  of  them  being  

brothers, and the fourth one being a cousin, had come  

to  the  place  of  incident  with  weapons,  the  common  

intention on the part of the accused to commit murder

CRL.A. NO. 85 OF 2008                                                                                                                                                      REPORTABLE 7

was writ large.

We  have  heard  the  learned  counsel  for  the  

parties and gone through the record very carefully.

P.W. 2 undoubtedly is the only eye witness of  

the incident,  the others having been declared hostile.  

We, however, find absolutely no reason to disbelieve  

her statement.  We notice that the story which she  

maintained even at the trial had been given by her in  

the FIR lodged within two hours of the incident.  We  

also find from the record that she had conveyed the  

information about the murder to  P.Ws. 8, 9 and 10  

almost  immediately  and  they  too  have  supported  the  

prosecution story in its entirity.  It is true, as  

contended  by  Mr.  Sundaravardhan,   that  all  these  

witnesses are closely related to each other.  To our  

mind,  however,  in  the   face  of  the  fact  that  

independent witnesses are reluctant to come forward and  

this hard truth is exemplified by the facts of this  

very  case  itself,  we  find  absolutely  no  reason  in  

disbelieving the relation witnesses.   On the contrary,  

such witnesses would be loathe to leave out the true  

assailants and to rope in innocent ones.   

We also find from the record that at least two  

different  types  of  weapons  had  been  used,  cutting  

weapons and those causing blunt injuries.  As per the  

statement of P.W. 2, A1 and A2 had been armed with

CRL.A. NO. 85 OF 2008                                                                                                                                                      REPORTABLE 8

weapons which could cause the incised wounds i.e. an  

axe and a sickle whereas the appellants before us had  

been  armed  with  lathis  which  could  cause  abrasions  

which are  blunt weapon injuries.  Mr. Sundaravardhan  

has, however, dwelt on the ambivalence on the part of  

P.W. 12 the doctor,  with regard to the weapons used.  

He has referred us to his statement that ordinarily  

injuries with a lathi would cause contrusions.  When  

further questioned, however, the doctor reiterated that  

abrasions could be caused with a blunt weapon as well.

Mr. Sundaravardhan has, however, placed special  

emphasis  on  his  submission  that  the  facts  did  not  

reveal the common intention amongst the accused.  This  

argument  would  have  to  be  examined  in  the  peculiar  

facts of this case.  It bears reiteration that all the  

accused were very closely related to each other and the  

quarrel had taken place between the two families on two  

occasions  prior  to  the  murder  incident  and  as  a  

consequence the cycle shop which had been opened in the  

plot belonging to the deceased had been got vacated.  

Likewise,  the  second  incident  with  A1  deliberately  

dashing his motor cycle against Suraj, the son of the  

deceased, on which the deceased had beaten A-1 who had  

in  turn  threatened  the  deceased  with  death  was  a  

precursor to the murder.  It is in this background that  

the common intention of the accused would have to be

CRL.A. NO. 85 OF 2008                                                                                                                                                      REPORTABLE 9

gathered.  It is true that some of the observations  

relied  upon  by  Mr.  Sundaravardhan  in  the  judgments  

cited by him  do support the views expressed by him but  

it is also to be borne in mind that in criminal matters  

the broad principles of law cannot be applied de hors  

the facts of the case.  In  Dharam Pal's case (supra)  

the  accused  had  come  armed  with  various  weapons  

including a gun (which  Dharam Pal the main accused was  

carrying) and this weapon was used to cause the fatal  

injury whereas the conventional weapons carried by the  

other two accused were, used  to cause injuries  to the  

witnesses alone.  It is in this situation that this  

Court observed that a conviction under Section 302/34  

IPC against these two accused could not be sustained.  

Likewise, in  Mahinder Singh's case (supra) this Court  

disbelieved the story projected by the prosecution that  

a threat had been held out against all of the accused  

to kill the deceased.  Rajender Singh's case too is  

based  on  its  own  facts,  and  cannot  be  mechanically  

applied.

We find in the case before us that the story  

with regard to the earlier two incidents between the  

complainant  party  and  the  accused  party  have  to  be  

proved on record and these incidents had catalysed the  

circumstances  and  led  to  the  fatal  attack  on  the  

deceased.  We are, therefore, are of the opinion that

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the matter has to be examined on its own facts and no  

universal yard stick as to whether the common intention  

has  been  made  out  or  not  can  ever  be  applied  or  

attempted.    

We  find  no  merit  in  the  appeal  which  is,  

accordingly, dismissed.

    ..................J      [HARJIT SINGH BEDI]

    ..................J      [J.M. PANCHAL]

NEW DELHI NOVEMBER 10, 2009.