The principle of common intention under Section 34 IPC requires a prearranged plan for joint criminal liability; mere presence does not suffice if no common purpose is established.

JUDGMENT :

Sandipkumar C. More, J.

1. All these appeals have been filed by original accused No.1- Rohit Balaji Waghmare, accused No.2- Pawan Deelip Sarwade, and accused No.3- Alim @ Mangal s/o Fattulal Sayyad, respectively, against the common judgment and order dated 24/06/2020 passed by the learned Sessions Judge, Latur (hereinafter referred to as “the learned trial Judge”) in Sessions Case No. 26 of 2018. By the impugned judgment, all the appellants have been convicted for the offence punishable under Section 302 read with Section 34 of the Indian Penal Code (for short, “ IPC ”) and sentenced to suffer life imprisonment and to pay a fine of Rs. 2,000/- each, with a default clause. However, the appellants have been acquitted of the charge under Section 504 read with of the .

2. According to the prosecution, the incident took place on the road from Harangul Railway Station to Harangul (Bk), in front of the pan stall of Sunil Dnyanoba Boke (PW-3), situated opposite to Akshay Beer Bar and Pravin Beer Bar. On 29/01/2018, Prameshwar Baburao Lakhadive (the deceased) had gone to Akshay Beer Bar to consume liquor. All the appellants–accused were also present in the said bar, consuming liquor on another table. An altercation then ensued between Prameshwar and the appellants–accused. Under the influence of alcohol, the appellants– accused abused and assaulted Prameshwar inside the bar. However, the owner of the bar, Sandip Bhandari (PW-7), intervened, resolved the dispute and expelled both parties from the bar at about 9.15 p.m.

Thereafter, Prameshwar went to the pan shop of Sunil Boke (PW-3), but the appellants–accused followed him. They again abused and assaulted him. The appellant-accused Pawan pushed Prameshwar to the ground, while appellant-accused Rohit inflicted a knife blow on his left thigh. Due to this blow, Prameshwar sustained a bleeding injury and could not stand on his own. The appellants–accused then left the spot. Prameshwar borrowed the mobile phone of Sunil Boke (PW-3) and contacted his brother-in- law, Subhash Manohar Siddheshware (PW-1), who is the informant in this case. Prameshwar narrated the incident to Subhash and called him to the spot. Accordingly, Subhash (PW-1) arrived there and found Prameshwar lying in a pool of blood. With the help of Sunil Boke (PW-3) and the owner of the adjoining Pravin Bar, he initially made Prameshwar to sit on his motorcycle and started proceeding towards the Government Hospital, Latur. However, due to the severity of the injury, Prameshwar was unable to sit properly on the motorcycle and therefore Subhash (PW-1) shifted him into an autorickshaw and took him to the Government Hospital. Prameshwar was admitted to the hospital, but during treatment he succumbed to his injury at about 12.10 a.m. on 30/01/2018. On the report of Subhash (PW-1), MIDC Police Station, Latur registered Crime No.39 of 2018 against all the appellants–accused for the offences punishable under Sections 302 and 504 read with Section 34 of the IPC . The Investigating Officer carried out the investigation and filed a charge-sheet against the appellants–accused for the aforesaid offences.

The learned trial Judge thereafter conducted the trial by examining 14 witnesses and ultimately convicted the appellants as mentioned above.

3. Learned counsel Mr. P. P. More, appearing for the appellant– accused Rohit, submitted that the present case is based solely on the alleged oral dying declaration, as Sandip Bhandari (PW-7) is eye-witness on