REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.     427       OF 2009 (Arising out of SLP (Crl.) No. 2865 of 2008)

Jagan Shravan Patil and Anr. ..Appellants

Versus

State of Maharashtra ..Respondent

J U D G M E N T

Dr. ARIJIT PASAYAT, J.

1. Leave granted.

2. Challenge in this appeal is to the judgment of a Division Bench of the

Bombay High Court  at  Aurangabad Bench.  Originally the  Special  Leave

Petition  was  filed by A-4,  A-5 and A-6.  So far  as  petition  in  respect  of

appellant No.3-Suresh is concerned the same was dismissed by order dated

7.4.2008 and notice was issued only in respect of other two petitioners.

3. The present appellants alongwith co-accused persons were tried and

convicted by learned II Ad-hoc Additional Sessions Judge, Jalgaon, for the

offences punishable under sections 143, 144, 148, 323 and 302 read with

Section 149 of the Indian Penal Code, 1860 (in short ‘IPC’) by order dated

12.10.2004. The accused were sentenced to suffer - (i) RI for one month and

fine  of  Rs.100/-  each,  in  default  of  suffer  RI.  for  7  days  for  offence

punishable under section 143 (ii) R.I. for three months and fine of Rs.300/-

each,  in  default  to  suffer  R.I.  for  20  days  for  offence  punishable  under

Section 144; (iii) RI for six months and fine of Rs.500/- in default to suffer

RI for one month for offence punishable under  Section 148;  (iv) R.I. for

three months and fine of Rs.300/- each, in default to suffer RI for 20 days,

for offence punishable under section 323 read with section 149: and , (v)

R.I.  for  life  and  fine  of  Rs.1000/-  each,  in  default,  to  suffer  RI  for  two

months for offence punishable under section 302 read with section 149 of

the 1PC The accused were, however, acquitted of the offence punishable

under section 37(1)(3)  read with  section  135 of  the  Bombay Police  Act,

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1951. Being aggrieved, accused nos. 1 to 3 filed Appeal No, 697/2004 in

the High Court and accused nos, 4 to 6 filed Jail Appeal No: 72/2005.  

4. Prosecution case in a nutshell is as follows:

Lotan Shrawan Patil (A-1),  Jagan (A-5) Abhirnan and Bapu (Since

deceased) are brothers. Khushal (A-3) and Sayaji (A-2) are sons of Lotan.

Suresh  (A-6)  and  Bharat  (A-4)  are  sons  of  Jagan.   Gorakh  (PW 3)  and

Macchindra (PW 10) are sons and Ashabai Mahajan (PW8) is married to the

daughter  of  Bapu  (hereinafter  referred  to  as  the  ‘deceased’).  During  the

relevant  period,  Ashabai  was  living  with  her  father.  Laxmibai  (PW7)  is

married  daughter  of  Abhiman.  Village  Mandurne  is  divided  in  three

portions,   namely,  old  village,  Indiranaqar  and Beghar Vasti.  During  the

relevant  period,  A1, 5,  and Abhiman were living at  Indiranagar and the

deceased was living at Beghar Vasti. A-6 was serving as a truck driver and

was living with his wife at Nasik. A-5 had a plot of land which adjoins the

plot of deceased on the north. There were disputes between the brothers,

dividing them in two groups, one of A1 and A5  and the other of Abhiman

and the deceased. The deceased was not on speaking terms with A1 and A5

for  about  seven  years.  Some  time  prior  to  the  incident,  A-5  started

construction  of  house  on  his  plot  in  Beghar  Vasti  by  committing

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encroachment on the plot of the deceased. As a consequence about a month

prior to the incident, the deceased had filled up portion of the plinth dug by

A-5 on his plot. In addition on 11.7.2003, PW 7 had been to the house of A-

5 with her father for demanding repayment of Rs.500/- borrowed from her

by A-5 on the occasion. A-5 his wife Bayjabai and A-4 assaulted her. On

12.7.2003,  PW 7 went  to  Police  Station.  Mehunbare,  with  PW 3 lodged

report against A4, A-5 and Bayjabai. On the basis of this report (Exh.59)

non cognizable  offence came to  he registered and PW 7 was directed  to

approach the Court  of Judicial  Magistrate  for  redressal  of her  grievance.

After the quarrel with PW 7, A-6 was called from Nasik.

On 13.7.2003 members of the family of deceased got up at 5.30 a.m.

as  usual.  At  about  6.30,  PW 3  finished  his  bath  and  the  deceased  was

brushing his teeth on the ota (raised platform) outside his house. At that

time, all the accused came to the house of the deceased and stated abusing

him because  PW 7  had  lodged  report  against  A-5  and  members  of  his

family. A-6 was armed with axe, A-4 was armed with handle of axe and A-5

was armed with handle of hoe. The accused entered the house and stated

kicking and fisting  the  deceased.  A-1 was inciting them to eliminate  the

deceased,  assuring  them  that  he  would  take  the  responsibility  for  the

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consequences. During the assault, A-6 dealt an axe blow on the head of the

deceased. As a result, the deceased sustained bleeding injury and fell down.

When PW 3 and 10 tried to intervene A-5 dealt blow on the head of PW3

and  A-4  dealt  blow  on  the  head  of  PW  10  causing  bleeding  injuries.

Accused no.2 was pelting stones at the victims. A-3 kicked and fisted PW 8

and her mother. He was pushing them backwards and was preventing them

from  intervening  in  the  quarrel.  On  the  arrival  of  the  neighbours,  the

accused  ran  away.  PW  10  then  brought  a  Jeep  of  one  Razakseth.  The

deceased was then taken to the Hospital of Dr. Deore (PW.9) at Chalisgaon

for the treatment of

compound  fracture  over  frontal  region.  The  Doctor  informed Chalisgaon

Police Station that a patient has been admitted with the history of assault.

However,  the  Doctor  on  duty  certified  in  writing  that  the  deceased  is

unconscious. Therefore, statement of the deceased could not be recorded.

The deceased succumbed to the injury about 10.45 a.m. The Police officer

then took PW 3 and 10 to the Police Station and recorded complaint of PW

3. On the basis of this complaint (Exh. 48), offence came to be registered

against the accused at zero number as the incident had taken place within

the

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jurisdiction of Mehunbare Police Station. The Police officer of Chalisgaon

Police  Station  held  inquest  on  the  dead  body,  prepared  Panchnama  of

Inquest (Exh. 86) and sent the dead body for the post mortem. The injured

were  also  sent  to  the  Municipal  Dispensary where  Dr.  Devising  Chavan

(PW 2) examined them and issued injury certificate (Exh.45).  PW 2 also

conducted post-mortem on the dead body. He found that the deceased had

suffered compound fracture  over central  part  of  the  frontal  region of  the

head, of the dimension of 5 cms x 1/2 c. x brain deep, oblique in direction

and  an  abrasion  over  the  elbow joint  measuring  2  x  ½ cms,  oblique  in

direction,  by way of  external  injuries  and internal  injury  in  the  form of

laceration of frontal region of the brain. The Medical Officer found that the

death was caused due to head injury within 4 to 6 hours of the last meal, as

the stomach was empty. Accordingly, he issued post-mortem Report (Exh.

43). At the mortuary, clothes of the deceased were attached in presence of

PW 1, under Seizure Memo (Exh.41). After completing the preliminaries,

papers  of  the  investigation  conducted  by Chalisgaon  Police  were  sent  to

Mehunbare Police Station  where offence came to  be registered at  Crime

No.59/2003 for offence punishable under sections 143, 144, 323, 324, 302

read with Sections 149, 504 and 506 IPC and Section 135 of the Bombay

Police Act. A.P.I. Yogiraj Shevgan (PW14) took over the investigation of

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the offence. On completion of the investigation the accused were charge-

sheeted.

Accused persons pleaded innocence.

The trial Court on consideration of the evidence on record recorded

the conviction as noted above.  

The primary stand before the High Court was that the evidence on

record was not sufficient to fasten the guilt on the accused and in any event

Section 34 has no application to the facts of the case.  The High Court did

not accept the stand.

Stand taken before the High Court was reiterated in this appeal.

5. Learned counsel for the respondent-State supported the judgment of

the High Court.  

6. Section 34 has been enacted on the principle of joint liability in the

commission of a criminal act.  The Section is only a rule of evidence and

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does not create a substantive offence. The distinctive feature of the Section

is the element of participation in action. The liability of one person for an

offence committed by another in the course of criminal act perpetrated by

several  persons  arises  under  Section  34  if  such  criminal  act  is  done  in

furtherance of a common intention of the persons who join in committing

the  crime.  Direct  proof  of  common  intention  is  seldom  available  and,

therefore,  such  intention  can  only  be  inferred  from  the  circumstances

appearing from the proved facts of the case and the proved circumstances.

In order to bring home the charge of common intention, the prosecution has

to  establish  by evidence,  whether  direct  or  circumstantial,  that  there was

plan or meeting of mind of all the accused persons to commit the offence for

which they are charged with the aid of Section 34, be it pre-arranged or on

the spur of moment; but it must necessarily be before the commission of the

crime.  The true contents  of  the Section are that  if  two or  more persons

intentionally do an act jointly, the position in law is just the same as if each

of them has done it individually by himself.  As observed in Ashok Kumar

v. State of Punjab (AIR 1977 SC 109), the existence of a common intention

amongst the participants in a crime is the essential element for application

of  this  Section.  It  is  not  necessary  that  the  acts  of  the  several  persons

charged  with  commission  of  an  offence  jointly  must  be  the  same  or

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identically similar.  The acts may be different in character,  but must have

been actuated by one and the same common intention in order to attract the

provision.

7. The Section does not say “the common intention of all”, nor does it

say “and intention common to all”.  Under the provisions of Section 34 the

essence of the liability is to be found in the existence of a common intention

animating  the  accused  leading  to  the  commission  of  a  criminal  act  in

furtherance of such intention. As a result  of the application of principles

enunciated in Section 34, when an accused is convicted under Section 302

read with Section 34, in law it means that the accused is liable for the act

which caused death of the deceased in the same manner as if it was done by

him alone.  The provision is intended to meet a case in which it  may be

difficult to distinguish between acts of individual members of a party who

act in furtherance of the common intention of all or to prove exactly what

part was taken by each of them.  As was observed in Ch. Pulla Reddy and

Ors. v.  State  of  Andhra  Pradesh (AIR  1993  SC  1899),  Section  34  is

applicable  even  if  no  injury  has  been  caused  by  the  particular  accused

himself.  For applying Section 34 it is not necessary to show some overt act

on the part of the accused.

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8. If the background facts are considered in the light of the principles set

out above, the inevitable conclusion is that the appeal is sans merit, deserves

dismissal which we direct.

……………………………………J. (Dr. ARIJIT PASAYAT)

……………………………………J. (Dr. MUKUNDAKAM SHARMA)

New Delhi:  March 03, 2009

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