JAGAN SHRAVAN PATIL & ANR.versusSTATE OF MAHARASHTRA

                        [2009] 3 S.C.R. 906
                                                                             •
A               JAGAN SHRAVAN PATIL & ANR.
                                                                   ...
                                 v.
                   STATE OF MAHARASHTRA
                (Criminal Appeal No. 427 of 2009)
                         MARCH 3, 2009
B
          [DR. ARIJIT PASAYAT AND MUKUNDAKAM
                        SHARMA, JJ.]

        Penal Code, 1860;
c
       ss. 302, 323134 - Murder - Prosecution of six accused
  -Conviction u/ss. 143, 144, 148, 323 and 302 rlw s. 149 /PC
  by trial court - High Court convicting only three accused ul
  ss. 302, 323134 - SLP by convicted accused - Dismissed in
D respect of one of the accused - Appeal of the two accused -
  Held: Conviction by High Court justified - Evidence sufficient
  to fasten guilt on them.

        s.34 - Common intention - Applicability - Discussed.

E      Appellants (accused Nos. 4 and) alongwith co-
  accused were convicted by trial court u/ss. 143, 144, 148,
  323 and 302 r/w s.149 IPC. Accused Nos. 1, 2 and 3
  together and accused Nos. 4, 5 and 6 together filed two
  separate appeals before High Court. High Court acquitted
F all the accused under the provisions they had been
  convicted by High Court. But convicted accused Nos. 4,
  5 and 6 u/ss. 302, 323/34 holding that these accused
  formed common intention at the time of occurrence as
  accused Nos. 4 and 5 helped accused No. 6 in enabling
  him to attack the deceased. Special Leave Petition was
G
  filed before this Court by accused Nos. 4, 5 and 6. The
  same was dismissed as regards accused No. 6. The
  present appeal by accused Nos. 4 and 5.                                •


H                               906
                  JAGAN SHRAVAN PATIL & ANR. v. STATE OF            907
                             MAHARASHTRA

                  Dismissing the appeal, the Court                         A
      ...
                HELD: 1. The evidence on record in the instant case,
            is sufficient to fasten the guilt on the accused. In the
            background facts and in the light of the principles as
            regards s.34 IPC, appeal is sans merit. [Para 4] [912-E-F]
                                                                           B
                 2.1. Section 34 IPC 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 does not create a
            substantive offence. The distinctive feature of the Section
            is the element of participation in action. The liability of    c
            one person for an offence committed by another in the
            course of criminal act perpetrated by several persons
            arises u/s 34, if such criminal act is done in furtherance
            of a common intention of the persons who join in
            committing the crime. [Para 6] [912-G-H; 913-A-B]           D

                 2.2. 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.
                                                                           E
            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          F
 '
--'         necessarily be before the commission of the crime. [Para
            6] (913-8-D]

                  Ashok Kumarv. State of Punjab AIR 1977 SC 109, relied
            on.                                                            G

                 2.3. The existence of a common intention amongst
      <     the participants in a crime is the essential element for
            application of Section 34. It is not necessary that the acts
            of the several persons charged with commission of an
                                                                           H
    908        SUPREME COURT REPORTS              [2009] 3 S.C.R.


A   offence jointly must be the same or 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. [Para 6] [913-D-E]

         2.4. Section 34 does not say "the common intention
B
    of all", nor does it say "and intention common to all".
    Under the provisions the Section, 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
c   intention. 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. [Para 7] [913-F-H; 914-A]
D
        Ch. Pu/la Reddy and Ors. v. State of Andhra Pradesh AIR
    1993 SC 1899, relied on.

        2.5. Section 34 is applicable even if no injury has
    been caused by the particular accused himself. For
E
    applying Section 34 it is not necessary to show some
    overt act on the part of the accused. [Para 7] [914-B]

                         Case Law Reference:
          AIR 1977 SC 109           relied on           Para 6
F
          AIR 1993 SC 1899          relied on.
        CRIMINAL APPELLATE JURISDICTION: Criminal Appeal
                                                        Para 7
                                                                    -
    No. 427 of 2009.
G       From the Judgment and Order dated 20.09.06 of the High
    Court of Bombay, Bench at Aurangabad in Criminal Appeal No.
    72 of 2005.

          Sunil Kumar Verma for the Appellants.
H
                JAGAN SHRAVAN PATIL & ANR. v. STATE OF                    909
                           MAHARASHTRA

    ...        Sushil Karanjkar and R.K. Adsure for the Respondent.              A

               The Judgment of the Court was delivered by

               DR. ARIJIT PASAYAT, J. 1. Leave granted.

               2. Challenge in this appeal is to the judgment of a Division      B
          Bench of the Bombay High Court at Aurangabad Bench.
          Originally the Special Leave Petition was filed by A-4, A-5 and
          A-6. Sq 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.        c
                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
i                                                                                D
          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         E
          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   F
          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, 1951. Being aggrieved, accused nos. 1 to 3 filed Appeal           G
          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          H
    910       SUPREME COURT REPORTS               [2009] 3 S.C.R.


A (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 Jag an. Gorakh (PW 3) and Macchindra (PW 10) are sons
  and Ashabai Mahajan (PWB) is married to the daughter of Bapu
  (hereinafter referred to as the 'deceased'). During the relevant
B period, Ashabai was living with her father. Laxmibai (PW7) is
  married daughter of Abhiman. Village Mandurne is divided in
  three portions, namely, old village, lndiranaqar and Beghar
  Vasti. During the relevant period, A1, 5, and Abhiman were
  living at lndiranagar and the deceased was living at Beghar
c 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
D 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 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
E 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
F 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.

G        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
H
      JAGAN SHRAVAN PATIL & ANR. v. STATE OF                 911
        MAHARASHTRA [DR. ARIJIT PASAYAT, J.]

  PW 7 had lodged report against A-5 and members of his family. A
  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 consequences. During the B
  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    c
  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. D
  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 E
 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 jurisdiction of Mehunbare F
 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 (PVV 2) examined them and issued injury G
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 ems x 1/2 c. x brain deep, oblique in direction
                                                    ·.              H
    912        SUPREME COURT REPORTS                   [2009] 3 S.C.R.


A   and an abrasion over the elbow joint measuring 2 x Yi ems,
    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
B   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
C   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. AP.I. Yogiraj Shevgan
    (PW14) took over the investigation of the offence. On
    completion of the investigation the accused were charge-
0
    sheeted.

          Accused persons pleaded innocence.

        The trial Court on consideration of the evidence on record
E   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.
F
        Stand taken before the High Court was reiterated in this
    appeal.

      5. Learned counsel for the respondent-State supported the
G 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 does not create a substantive offence.
    The distinctive feature of the Section is the element of
H
      JAGAN SHRAVAN PATIL & ANR. v. STATE OF                    913
        MAHARASHTRA [DR. ARIJIT PASAYAT, J.]

  participation in action. The liability of one person for an offence   A
  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      B
 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              c
 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
                                                                        0
 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               E
jointly must be the same or 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", F
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 ir.tention. As a result of the application of G
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 H
    914       SUPREME COURT REPORTS                [2009] 3 S.C.R.


A 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. Pu/la Reddy and Ors. v. State of Andhra
  Pradesh (AIR 1993 SC 1899), Section 34 is applicable even
B 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.

       8. If the background facts are considered in the light of the
  principles set out above, the inevitable conclusion is that the
C appeal is sans merit, deserves dismissal which we direct.

    K.K.T.                                      Appeal dismissed.