STATE OF MAHARASHTRA Vs. BHIMSHANKAR SIDDANNAPPPA THOBDE

JUDGEMENT

(1.) A somewhat intriguing question of law has arisen in this appeal. The question relates to the application of section 34 of the Indian Penal Code to a case where one of the offenders acts in excess of the common intention of all the offenders.

(2.) THE three appellants who have filed this appeal were accused Nos. 1 to 3 in a trial conducted by the Sessions Judge of Sholapur. Two charges were framed against them. One charge was under section 323 and 324 read with section 34 I. P. C. for having caused simple hurt to four persons including witnesses Yogappa and Shivshankar Bhogade. The other charge was under Section 307 read with section 34 I. P. C. for having attempted the murder of witness Sidramappa. The learned trial Judge found the three accused guilty of both the charges. For the offence under sections 323 and 324 read with section 34 I. P. C he sentenced each of them to rigorous imprisonment for one year. For the offence under section 307 read with section 34 I. P. C. he sentenced accused No. 3 to rigorous imprisonment for eight years and accused Nos. 1 and 2 to rigorous imprisonment for five years each. The sentences against each of the accused were to run concurrently.

(3.) THE material facts which constituted the case of the prosecution are no longer in dispute. Accused No. 1 is the father of accused Nos. 2 and 3. They were on terms of hostility with three brothers Vishwanath, Revansidha and Shivshankar, belonging to Bhogade family. The accused as well as the Bhogade brothers used to reside in the same locality in Sholapur. At the time of the offence Shivshankar Bhogade, his brother-in-law Yogappa and some other relations of the Bhogade family were sitting on Katta (platform) of a Maruti temple which was not far from the house of the accused. At that time the three accused came running to the Maruti Katta from their house. Accused No. 1 was armed with a stick and accused Nos. 2 and 3 were armed with Knives. On coming to the Maruti Katta accused No. 1 gave stick blows to Shivshankar Bhogade, Yogappa intervened, whereupon accused No. 3 gave a knife blow on Yogappa's head. Accused No. 2 also rushed at Yogappa and gave him knife blows which Yogappa received on his arms. On Shantayya Swami tried to intervene, but he got a knife blow on his finger. Accused No. 1 pushed Yogappa from the Katta as a result of which he fell down on the ground. Accused No. 1 then gave stick blows on Yogappa's back in the meantime Sidramappa Revansidha Bhogade and some others came running to the Maruti temple. Revansidha Bhogade caught hold of accused No. 2 and asked him what he was doing. Accused No. 1 then gave a stick blow on Sidramappa's head. Accused No. 3 stabbed Sidramappa in the chest. Sidramappa shouted that he was killed. Revansidha Bhogade left accused No. 2 and came near Sidramappa. Accused Nos. 1 to 3 then ran away towards their house.