Full Judgment Text
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REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.143/2020
SANJAY PURAN BAGDE & ANR. Appellant(s)
VERSUS
THE STATE OF MAHARASHTRA Respondent(s)
J U D G M E N T
SANJAY KISHAN KAUL, J.
nd rd
1. On the fateful night intervening 2 and 3
November, 2015 at about 3 a.m. the deceased Vilas
Babusa Gawande and his wife Sau. Anita Vilas Gawande
woke up and while the wife was doing preparations for
cooking, the husband went to attend to the nature’s
call. The wife (PW-6) heard shouts of the husband that
four persons were assaulting him and when she ran to
the spot she saw two of them, Manoj Puran Badge and
Puran Sakharam Bagde assaulting the husband with an axe
and whereas the appellants before us Sanjay Puran Bagde
and Rajratna @ 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 her that four
of them had caught hold of him and assaulted him by
Signature Not Verified
Digitally signed by
ASHA SUNDRIYAL
Date: 2022.08.03
17:45:51 IST
Reason:
means of an axe. She gave some water to the husband on
his asking and then went to the house of the neighbours
who carried the husband into the house and then by an
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auto he was carried to the hospital where he was
declared to be dead.
2. The stated reason for the assault is alleged to
be an evil eye kept on the wife of Manoj Puran Bagde by
the deceased. The statement of PW-6 was recorded under
Section 161 Cr.P.C. and subsequently under Section 164
Cr.P.C. We may say at the threshold itself that though
the learned counsel for the appellant endeavoured to
persuade us, we found no glaring inconsistency between
the two statements.
3. The FIR No.79/2015 dated 03.11.2015 was
registered and in pursuance to the investigation charge
sheet was filed. All the four accused were charged with
the offence of Section 302, IPC read with Section 34
IPC. On trial being completed, the learned Additional
Sessions Judge, Akot, District Akola by a judgment
dated 14.09.2017 convicted the first two accused while
acquitting the two appellants.
4. A scrutiny of the trial Court’ order would show
that the testimony of PW-6 was found to be reliable who
was the only eye witness. In fact the whole judgment
goes into the defences raised by the accused and
rejects all of them. However, towards the end of the
judgment, in para 46 while referring to some judicial
precedents, it was noticed that the role attributed to
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the appellants was of catching the victim without
actual participation or use of weapon to assault and
inflict the injuries. In that sense, it has been
stated that as that was the only role, it could not be
said that there was a shared common intention along
with the first two accused to cause death.
5. On appeal being preferred by the two accused
convicted, as well as the State against acquittal of
the appellants, the High Court, in terms of the
impugned judgment dated 05.02.2019, dismissed the
appeal of the convicted accused while allowing the
appeal of the State against acquittal of the two
appellants.
6. The High Court has found the approach of the
trial Court unacceptable, while appreciating that the
parties had been roped in with the aid of Section 34
IPC. In that behalf, it has been observed that the
essence of the liability is existence of common
intention and the participation in commission of
offence in furtherance of common intention. On the
basis of the evidence discussed by the trial Court with
which the High Court agreed, it was found that firstly,
there were estranged relationship between the accused
(all of whom are relatives) and the deceased about a
prior incident and the common intention of the accused
is established by the presence of all four accused on
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the spot in the night/early morning, armed with
dangerous weapons, even if the actual attack was made
by the other two while the appellants held on to the
deceased.
7. The appellants have thus, preferred Special
Leave Petition and leave was granted to examine the
case. The Special Leave Petition preferred by the two
accused who used the axe was dismissed on 20.01.2020
while notice had been issued in the Special Leave
Petition of the appellants.
8. We have heard learned counsel for parties.
9. In our view, the case falls within the limited
contour as concurrently both Courts have appreciated
evidence to hold that the witnesses were reliable, more
so, PW-6, the wife of the deceased who was an eye
witness and also related what the deceased stated to
her. By the time the deceased was taken to the
hospital, he was declared brought dead. Thus, there
would be no case of recording of any dying declaration.
10. Learned counsel for the appellant did make a
valiant endeavour to persuade us to look into the
entire ambit of the evidence but then that would not be
appropriate. Suffice to say that both the Courts below
as well as us, on a reading of the judgment, find that
there is really no quibble with the manner in which the
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incident occurred or the identifying of all the
accused. The only question which arises is whether by
reason of the appellants only holding the deceased
while the other two attacked the deceased, can it be
said that there was no shared common intention between
all the accused.
11. In a recent judgment of ours in Jasdeep Singh
Alias Jassu v. State of Punjab – (2022) 2 SCC 545, the
ambit and discussion of scope of Section 34, IPC has
been examined in the context of the earlier judgments.
It has been emphasized that Section 34 of the IPC
creates a deeming fiction by infusing and importing a
criminal act constituting an offence committed by one,
into others, in pursuance to a common intention. This
would of course require the quality of evidence to be
substantial, concrete, definite and clear. What is
required is a common intention. We referred to the
earlier judicial pronouncements including in the case
of Virendra Singh v. State of Madhya Pradesh - (2010) 8
SCC 407, to opine, taking a clue from the said
judgment, that the dominant feature of Section 34 is an
element of intention and participation in action. This
participation need not in all cases even be physical
presence but a common intention. There has to be a
simultaneous consensus of minds of the persons
participating in the criminal action to bring about a
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particular result. That intention can be formed at any
time. Section 34, IPC does not create any distinct
offence but it lays down the principle of constructive
liability stipulating that the act must be done in
furtherance of the common intention.
12. In the conspectus of the aforesaid legal
position, if we examine the facts of the present case,
the very presence at 3.30 in the morning of all the
accused at the house of the appellant with two of them
holding an axe clearly shows that there can be no doubt
about a common intention in behalf of what they were
proposing to do. It was not an axe picked up at the
site. Two of the accused were carrying the axes. It is
not a sudden incident which has occurred. The pre-
meditated intention was thus, clear. Even at the site,
the intentions had never changed as the appellants were
holding the deceased while the other two attacked. The
fact that only two of them were using the axe while the
other were two holding the deceased to ensure
appropriate injuries being inflicted on the deceased
would give no remission to the case of the appellants.
13. In view of the aforesaid reasons, we cannot
really fault the conclusion arrived at by the High
Court in reversing the acquittal by the trial Court on
what may be stated as the erroneous principle of law
followed by the trial Court.
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14. The appeal is accordingly dismissed leaving
parties to bear their own costs.
………………………………………...J.
[SANJAY KISHAN KAUL]
………………………………………...J.
[M.M. SUNDRESH]
NEW DELHI;
JULY 28, 2022.