Jagan Shravan Patil & Anr vs State Of Maharashtra

Jagan Shravan Patil and Anr. ..Appellants

Versus

State of Maharashtra ..Respondent

JUDGMENT

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,

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: 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

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.

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

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.

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

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.

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

6 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

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.

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

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.

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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