Sanjay Puran Bagde vs The State Of Maharashtra

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.

1. On the fateful night intervening 2nd and 3rd

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

Signature Not Verified of them had caught hold of him and assaulted him by 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 2

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 3

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 4

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 5

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 6

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.

7

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.