Common intention requires proof of a prior agreement to commit an offense, with liability under Section 34 based on shared intent and concerted action among accused.

JUDGMENT :

BHARATI DANGRE, J.

1. The three appeals are filed by the appellants (accused nos. 1, 2 and 3) calling in question the legality of the judgment delivered by the Additional Sessions Judge, City Civil and Sessions Court at Mumbai on 27/02/2017, convicting them for the offences punishable under Sections 302 r/w Section 34 , Section 397 , Section 342 r/w , and 323 r/w 34 of IPC , and sentencing them to suffer imprisonment for life and other distinct sentences on being convicted for distinct offences, all sentences being directed to run concurrently.

In the trial, the accused no.4 Ajitkumar Fatehlal Bagecha Jain faced accusations under Section 411 of IPC , but was acquitted. Similarly, all the accused are acquitted of charge under Section 201 of .

2. On the Appeals being admitted, they are taken up for final hearing.

Heard Dr. Yug Mohit Chaudhary for accused No.1, Adv. Tripti Khamkar for accused no.2, and Adv. Veerdhawal Kakade for accused no.3, and learned APP, Ms. Sangeeta Shinde, for the State.

3. Before we appreciate the rival contentions advanced on behalf of the appellants and the public prosecutor representing the State, we shall refer to the case of the prosecution in brief.

As per the prosecution, on 28/07/2011 at about 3:30 p.m., when Kumar Himanshu was present in the house along with his mother Aruna Pramod Pandey at around 3:30 p.m., and they were lying down in the hall on a mat, three persons barged into the house. One of those person told his mother that her husband had taken one and half lakh Rupees from him at a bar, and the name of the person was Ayan, but his mother responded by stating that her husband’s name is not Ayan and he do not go to the bar. In the meanwhile, as per the prosecution, one of the accused removed a knife from his pocket, and when his mother raised a shout, the accused threatened her to take out gold or he would kill her son. When his mother refused, two of the accused persons, put a towel around the neck of his mother in an attempt to strangulate her, and she became unconscious. Even, the young boy’s hands, legs were tied by a bed-sheet and he was gagged. Thereafter, two of the accused persons took his mother to the kitchen, which was at the end of the two rooms and the accused no.1 kept holding him in the next room.

After 10 to 15 minutes, the two accused, who took Aruna inside came out and while they were leaving, one of them threatened Kumar Himanshu that he shall not disclose the incident to police. After a while he was able to free himself and went to the kitchen to find that his mother’s neck was slit and she was lying in a pool of blood. He came down from his block and informed a neighbour about the incident, who called up the police.

4. In the wake of the aforesaid, the three accused face the charge of committing house trespass by entering into the house of Aruna, in furtherance of common intention, after having made preparation for causing hurt to her and thus of committing an offence punishable under Section 452 r/w 34 of IPC . They are also charged for strangulating Aruna by putting a scarf around her neck and then inflicting blows of knife on her throat resulting into her death and therefore, committing an offence punishable under Section 302 r/w 34 of .

Since, they committed robbery by taking gold ornaments, and mobile phones from possession of Aruna, in furtherance of their common intention, the three also faced the charge under Section 397 of IPC and for wrongfully restraining the young boy Himanshu by tying his hands and legs, they were accused of commit