Supreme Court of India
SANJAY PURAN BAGDE & ANR. versus THE STATE OF MAHARASHTRA on 28 July 2022
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SUPREME COURT REPORTS
[2022] 7 S.C.R.
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SANJAY PURAN BAGDE & ANR.
v.
THE STATE OF MAHARASHTRA
(Criminal Appeal No. 143 of 2020)
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JULY 28, 2022
[SANJAY KISHAN KAUL AND M.M. SUNDRESH, JJ.]
Penal Code, 1860 – s.302 r/w s.34 – Murder – CommonCintention – On the fateful night at about 3 a.m., the victim and hiswife (eye witness) woke up and while the wife was doing preparationsfor cooking, the husband went to attend to the nature’s call – Wifeheard his shouts, when she ran to the site she saw two accusedassaulting her husband with an axe whereas the appellants hadcaught hold of him – She found him bleeding, he also told her thatDfour of them had caught hold of him and assaulted him by an axe –He was taken to hospital, was declared brought dead – Appellantswere acquitted by trial court noticing that the role attributed to themwas of catching the victim without actual participation or use ofweapon to assault and inflict injuries, other two accused wereEconvicted – High Court dismissed the appeal of the convictedaccused, while the acquittal of appellants was reversed – SLP filedby the two accused who used the axe was dismissed – Held:Concurrently both the Courts have held that the witnesses werereliable, more so the wife of the deceased – There is no quibble withthe manner in which the incident occurred or the identifying of allFthe accused – The very presence of all the accused at 3.30 in themorning at the site with two of them holding an axe clearly showsthat there can be no doubt about a common intention in behalf ofwhat they were proposing to do – It was not an axe picked up at thesite – Two of the accused were carrying the axes – It is not a suddenGincident which had occurred – The premeditated intention was clear – Even at the site, the intentions had never changed as the appellantswere holding the deceased while the other two attacked – The factthat only two of them used the axe while the other were two holdingthe deceased to ensure appropriate injuries being inflicted on the H
deceased would give no remission to the case of the appellants –No fault in High Court reversing the acquittal.
Penal Code, 1860 – s.34 – Scope of – Common intention –Evidence – Held: s.34 creates a deeming fiction by infusing andimporting a criminal act constituting an offence committed by one,into others, in pursuance to a common intention – This would requirethe quality of evidence to be substantial, concrete, definite and clear.
Penal Code, 1860 – s.34 – Common intention – Principle ofconstructive liability – Held: Dominant feature of s.34 is an elementof intention and participation in action – This participation neednot in all cases even be physical presence but a common intention –There has to be a simultaneous consensus of minds of the personsparticipating in the criminal action to bring about a particular result– That intention can be formed at any time – s.34 does not createany distinct offence but it lays down the principle of constructiveliability stipulating that the act must be done in furtherance of thecommon intention.
Jasdeep Singh Alias Jassu v. State of Punjab (2022) 2SCC 545 : 2022 (1) JT 96; Virendra Singh v. State ofMadhya Pradesh (2010) 8 SCC 407 : [2010] 9 SCR772 – relied on.
Case Law Reference
(2022) 2 SCC 545relied onPara 11[2010] 9 SCR 772relied onPara 11
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.143 of 2020.
From the Judgment and Order dated 05.02.2019 of the High Courtof Judicature at Bombay, Nagpur Bench in Crl. Appeal No. 363 of 2018.
Akash Kakade, Somanatha Padhan, Swetab Kumar, Ashok Anand,Rakesh Kr. Singh, Bipin Bihari Singh, Advs. for the Appellants.
Rahul Chitnis, Sachin Patil, Aaditya A. Pande, Geo Joseph,Ms. Shwetal Shepal, Advs. for the Respondent.
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180SUPREME COURT REPORTS
[2022] 7 S.C.R.
AThe Judgment of the Court was delivered bySANJAY KISHAN KAUL, J.
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1. On the fateful night intervening 2[nd] and 3[rd] November, 2015 atabout 3 a.m. the deceased Vilas Babusa Gawande and his wife Sau.Anita Vilas Gawande woke up and while the wife was doing preparationsBfor cooking, the husband went to attend to the nature’s call. The wife(PW-6) heard shouts of the husband that four persons were assaultinghim and when she ran to the spot she saw two of them, Manoj PuranBadge and Puran Sakharam Bagde assaulting the husband with an axeand whereas the appellants before us Sanjay Puran Bagde and RajratnaC@ Nandu Bagde had caught hold of him. On her creating a noise loudly,all of them ran away. She found her husband bleeding who also told herthat four of them had caught hold of him and assaulted him by means ofan axe. She gave some water to the husband on his asking and thenwent to the house of the neighbours who carried the husband into thehouse and then by an auto he was carried to the hospital where he wasDdeclared to be dead.
2. The stated reason for the assault is alleged to be an evil eyekept on the wife of Manoj Puran Bagde by the deceased. The statementof PW-6 was recorded under Section 161 Cr.P.C. and subsequently underSection 164 Cr.P.C. We may say at the threshold itself that though theElearned counsel for the appellant endeavoured to persuade us, we foundno glaring inconsistency between the two statements.
3. The FIR No.79/2015 dated 03.11.2015 was registered and inpursuance to the investigation charge sheet was filed. All the four accusedwere charged with the offence of Section 302, IPC read with Section 34FIPC. On trial being completed, the learned Additional Sessions Judge,Akot, District Akola by a judgment dated 14.09.2017 convicted the firsttwo accused while acquitting the two appellants.
4. A scrutiny of the trial Court’ order would show that the testimonyof PW-6 was found to be reliable who was the only eye witness. In factGthe whole judgment goes into the defences raised by the accused andrejects all of them. However, towards the end of the judgment, in para46 while referring to some judicial precedents, it was noticed that therole attributed to the appellants was of catching the victim without actualparticipation or use of weapon to assault and inflict the injuries. In thatsense, it has been stated that as that was the only role, it could not beH
said that there was a shared common intention along with the first twoaccused to cause death.
5. On appeal being preferred by the two accused convicted, aswell as the State against acquittal of the appellants, the High Court, interms of the impugned judgment dated 05.02.2019, dismissed the appealof the convicted accused while allowing the appeal of the State againstacquittal of the two appellants.
6. The High Court has found the approach of the trial Courtunacceptable, while appreciating that the parties had been roped in withthe aid of Section 34 IPC. In that behalf, it has been observed that theessence of the liability is existence of common intention and theparticipation in commission of offence in furtherance of common intention.On the basis of the evidence discussed by the trial Court with which theHigh Court agreed, it was found that firstly, there were estrangedrelationship between the accused (all of whom are relatives) and thedeceased about a prior incident and the common intention of the accusedis established by the presence of all four accused on the spot in thenight/early morning, armed with dangerous weapons, even if the actualattack was made by the other two while the appellants held on to thedeceased.
7. The appellants have thus, preferred Special Leave Petition andleave was granted to examine the case. The Special Leave Petitionpreferred by the two accused who used the axe was dismissed on20.01.2020 while notice had been issued in the Special Leave Petition ofthe appellants.
8. We have heard learned counsel for parties.
9. In our view, the case falls within the limited contour asconcurrently both Courts have appreciated evidence to hold that thewitnesses were reliable, more so, PW-6, the wife of the deceased whowas an eye witness and also related what the deceased stated to her.By the time the deceased was taken to the hospital, he was declaredbrought dead. Thus, there would be no case of recording of any dyingdeclaration.
10. Learned counsel for the appellant did make a valiant endeavourto persuade us to look into the entire ambit of the evidence but then thatwould not be appropriate. Suffice to say that both the Courts below aswell as us, on a reading of the judgment, find that there is really no AB
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Aquibble with the manner in which the incident occurred or the identifyingof all the accused. The only question which arises is whether by reasonof the appellants only holding the deceased while the other two attackedthe deceased, can it be said that there was no shared common intentionbetween all the accused.
B11. In a recent judgment of ours in Jasdeep Singh Alias Jassu v.State of Punjab – (2022) 2 SCC 545, the ambit and discussion ofscope of Section 34, IPC has been examined in the context of the earlierjudgments. It has been emphasized that Section 34 of the IPC creates adeeming fiction by infusing and importing a criminal act constituting anoffence committed by one, into others, in pursuance to a commonCintention. This would of course require the quality of evidence to besubstantial, concrete, definite and clear. What is required is a commonintention. We referred to the earlier judicial pronouncements including inthe case of Virendra Singh v. State of Madhya Pradesh - (2010) 8SCC 407, to opine, taking a clue from the said judgment, that the dominantDfeature of Section 34 is an element of intention and participation in action.This participation need not in all cases even be physical presence but acommon intention. There has to be a simultaneous consensus of mindsof the persons participating in the criminal action to bring about a particularresult. That intention can be formed at any time. Section 34, IPC doesnot create any distinct offence but it lays down the principle of constructiveEliability stipulating that the act must be done in furtherance of the commonintention.
12. In the conspectus of the aforesaid legal position, if we examinethe facts of the present case, the very presence at 3.30 in the morning ofall the accused at the house of the appellant with two of them holding anFaxe clearly shows that there can be no doubt about a common intentionin behalf of what they were proposing to do. It was not an axe picked upat the site. Two of the accused were carrying the axes. It is not a suddenincident which has occurred. The pre-meditated intention was thus, clear.Even at the site, the intentions had never changed as the appellantsGwere holding the deceased while the other two attacked. The fact thatonly two of them were using the axe while the other were two holdingthe deceased to ensure appropriate injuries being inflicted on the deceasedwould give no remission to the case of the appellants.
13. In view of the aforesaid reasons, we cannot really fault theHconclusion arrived at by the High Court in reversing the acquittal by the SANJAY PURAN BAGDE & ANR. v. THE STATE OFMAHARASHTRA [SANJAY KISHAN KAUL, J.]
trial Court on what may be stated as the erroneous principle of lawfollowed by the trial Court.
14. The appeal is accordingly dismissed leaving parties to beartheir own costs.
Divya Pandey(Assisted by : Deepak Panwar, LCRA)
Appeal dismissed.
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