Shravan Patil & ANR. Vs. State of Maharashtra  INSC 462 (3 March
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
ARIJIT PASAYAT, J.
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.
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, 2 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:
Prosecution case in a nutshell is as follows:
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.
(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 3 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.
quarrel with PW 7, A-6 was called from Nasik.
13.7.2003 members of the family of deceased got up at 5.30 a.m.
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 4 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.
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.
the Doctor on duty certified in writing that the deceased is unconscious.
Therefore, statement of the deceased could not be recorded.
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 5 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 = 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.
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 6 the offence. On completion of the
investigation the accused were charge- sheeted.
persons pleaded innocence.
Court on consideration of the evidence on record recorded the conviction as
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.
taken before the High Court was reiterated in this appeal.
Learned counsel for the respondent-State supported the judgment of
the High Court.
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 7
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.
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 8 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.
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.
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