NINAJI RAOJI BOUDHA & ANR. versus STATE OF MAHARASHTRA

Citation: [1976] 3 S.C.R. 428 · Decided: 20-02-1976 · Supreme Court of India · Bench: R.S. SARKARIA · Disposal: Case Partly allowed
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Judgment (excerpt)

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428 
-NINAJI RAOJJ BOUDHA & ANR. 
v. 
STATE OF MAHARASHTRA 
February 20, 1976 
[R. S. SARKARIA AND P. N. SH!NGHAL, JJ.] 
·~ '-
Indian Penal Code (Act 45 of 1860) s. 34-Common intention-Evide~e 
showing only intention to cause grievous hurt-Victim dying but no evidenCe 
as to who caused the only fatal injury-If Clccused could be convicted iiilder 
ss. 302 and 34. 
Nine accused were charged with offences of murder and causing hurt. The 
trial Court acquitted two and convicted the others under ss. 325 and· 147, I.P.C. 
On appeal by the State, the High Court convicted the two appellants also under 
s. 302 read with s. 34, I.P.C. 
Partly allowing their appeal to this Court, 
HELD : The High Court has not examined the liability of the accused with 
due regard to the facts and circl;lmstances of the case. Instead of giving_. a 
cate~orical findin2, the High Court stated at one place in its judgment that the 
appellants must be taken to have had the knowledge that the injury which 
they intended to cause to· the victim was "likely to result" in his death, and in' an 
other place, that the appellants were guilty of an offence under s. 300, fourthly; 
because they "ought to have known that their act was so imminently 'dangerQUS 
having regard to the age and condition of the victim that their act must in all 
probability cause death or such bodily injury as is likely to cause death." But 
the evidence on record shows that the appellants did not have the commQD 
intention of giving a beatiil~ to the deceased when they reached his house but 
were only bent upon settling scores with his son. It was only when· the 
deceased asked another witness to get ready a bullock cart for making a 
colhplaint about the beating of his ·son that the appellants inflicted injuries on 
him. ·But there was nothing to show that their intention was· to inflict' a'ny 
fatal injury. Only one of the injuries was a forceful blow on the head . of 
the deceased and it resulted in his death. But the other injuries were on the 
back of-·the neck. knees ahd right elbow of the deceased and not on anv vi1'! 
part of the body. Therefore, the appellants bad only the common intention of 
causing grievous hurt. Since there was no reliable evidence to show which of 
the two appellants gave the fatal blow, the appellants could only be convicted 
of an offence under s. 325 read with s. 34, J.P.C. [431F; 432C-D, F-G; 433E-
434C] 
.CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 181 
of 1971 
Appeal by special leave from the judgment and order dated the 
25th and 28th September, 1970 of the Bombay High Court Nagpur 
Bench in Criminal Appeal No. 24 of 1968 with Crl. A. No. 100 of 
1968. 
liarjinder Singh, for the appellant 
S. B. Wad and M. N. Shroff, for the respondent 
The Judgment of the Court was delivered by 
SHINGHAL, J.-This is an appeal of Ninaji Raoji Boudha (herein-
after referred to as Ninaji) and Raoji Gianu Boudha (hereinafter 
referred to as Raoji), against the appellate judgment of the Bombay 
High Court dated September 25 /28, 1970. The Additional Sessions 
• 
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N. R. BOUDHA v. MAHARASHTRA (Shinghal, J.) 
429 
Judge of Khamgaon convicted them. of offences um!er ss. 325 
and 
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14 7 LP .C. and sentenced them to rigorous imprisonment for five years 
and a fine of Rs. 50/- for the offence under s. 325, and to rigorous 
imprisonment for six months and a fine of Rs. 25 /- for the offence 
under s. 147 I.P.C. 
The High Court held, on appeal, that they were 
,guilty of the offence under s. 302 read with s. 34 I.P.C. and sentenc-
ed them to imprisonment for life by setting aside their acquittal for 
the offence of murder of Bhonaji. Ninaji and Raoji were also con-
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victed for an offence under s. 325 read with s.149 I.P.C. for partici-
pating in the unlawful assembly which was held to be responsible for 
causing grievous injuries to Bhonaji's sons Samadhan and Rambhau, 
Mr. Harjinder Singh, Amicus Curiae, stated en behalf of the appel-
lants that he did not think it worthwhile challenging the conviction 
of appellants Ninaji and Raoji for that offence, and that he would 
.confine the appeal to their conviction-for the offence under s. 302/ 
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34 I.P.C. for causing the death of Bhonaji. 
We would 
therefore 
concern ourselves with the incident which resulted in Bhonaji's death 
and the conviction of the appellants thereoor. 
Appellants Ninaji and Raoji were two out of nine accused who 
were challaned for the commissicn of various o
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