SANJAY PURAN BAGDE & ANR. versus THE STATE OF MAHARASHTRA

Citation: [2022] 7 S.C.R. 178 · Decided: 28-07-2022 · Supreme Court of India · Bench: SANJAY KISHAN KAUL · Disposal: Dismissed

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Judgment (excerpt)

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178
SUPREME COURT REPORTS
[2022] 7 S.C.R.
SANJAY PURAN BAGDE & ANR.
v.
THE STATE OF MAHARASHTRA
(Criminal Appeal No. 143 of 2020)
JULY 28, 2022
[SANJAY KISHAN KAUL AND M.M. SUNDRESH, JJ.]
Penal Code, 1860 – s.302 r/w s.34 – Murder – Common
intention – On the fateful night at about 3 a.m., the victim and his
wife (eye witness) woke up and while the wife was doing preparations
for cooking, the husband went to attend to the nature’s call – Wife
heard his shouts, when she ran to the site she saw two accused
assaulting her husband with an axe whereas the appellants had
caught hold of him – She found him bleeding, he also told her that
four of them had caught hold of him and assaulted him by an axe –
He was taken to hospital, was declared brought dead – Appellants
were acquitted by trial court noticing that the role attributed to them
was of catching the victim without actual participation or use of
weapon to assault and inflict injuries, other two accused were
convicted – High Court dismissed the appeal of the convicted
accused, while the acquittal of appellants was reversed – SLP filed
by the two accused who used the axe was dismissed – Held:
Concurrently both the Courts have held that the witnesses were
reliable, more so the wife of the deceased – There is no quibble with
the manner in which the incident occurred or the identifying of all
the accused – The very presence of all the accused at 3.30 in the
morning at the site 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 had occurred – The premeditated intention was 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 used the axe while the other were two holding
the deceased to ensure appropriate injuries being inflicted on the
[2022] 7 S.C.R. 178
178
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deceased would give no remission to the case of the appellants –
No fault in High Court reversing the acquittal.
Penal Code, 1860 – s.34 – Scope of – Common intention –
Evidence – Held: s.34 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 require
the quality of evidence to be substantial, concrete, definite and clear.
Penal Code, 1860 – s.34 – Common intention – Principle of
constructive liability  – Held: Dominant feature of s.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 particular result
– That intention can be formed at any time – s.34 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.
Jasdeep Singh Alias Jassu v. State of Punjab (2022) 2
SCC 545 : 2022 (1)  JT 96; Virendra Singh v. State of
Madhya Pradesh (2010) 8 SCC 407 : [2010] 9 SCR
772  – relied on.
Case Law Reference
(2022) 2 SCC 545
relied on
Para 11
[2010] 9 SCR 772
relied on
Para 11
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.
143 of 2020.
From the Judgment and Order dated 05.02.2019 of the High Court
of Judicature at Bombay, Nagpur Bench in Crl. Appeal No. 363 of 2018.
Akash Kakade, Somanatha Padhan, Swetab Kumar, Ashok Anand,
Rakesh Kr. Singh, Bipin Bihari Singh, Advs. for the Appellants.
Rahul Chitnis, Sachin Patil, Aaditya A. Pande, Geo Joseph,
Ms. Shwetal Shepal, Advs. for the Respondent.
SANJAY PURAN BAGDE & ANR.  v. THE STATE OF
MAHARASHTRA
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180
SUPREME COURT REPORTS
[2022] 7 S.C.R.
The Judgment of the Court was delivered by
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
an

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