The prosecution must prove common intention for vicarious liability under Section 34 IPC; mere presence is insufficient for conviction.

JUDGMENT :

ABHAY J. MANTRI, J.

1. This appeal is directed against the judgment and order dated 02-02-2021 passed by the learned Additional Sessions Judge, Pusad (for short ‘the learned Judge’) in Sessions Trial Case No. 51/2015, convicting the appellants for the offence punishable under Section 302 read with Section 34 of the Indian Penal Code (for short, “IPC”) and sentenced to undergo rigorous imprisonment for life and to pay a fine of Rs.500/- each, in default to suffer rigorous imprisonment for one month each. They are also convicted for an offence punishable under Section 452 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for two years and to pay a fine of Rs.500/- each, in default to suffer further rigorous imprisonment for one month each.

2. FACTUAL MATRIX:

(i) Informant Kishor (PW-1) and accused No. 1-Jayanand are brothers, and the deceased Sunanda was the widow of their late brother Vijay. Kishor and Sunanda reside adjacent. Accused No. 1-Jayanand resides in front of them.

(ii) The incident occurred on 01-05-2015 at about 9-00 a.m. On that day, Kishor and his wife heard Sunanda’s hue and cry for help from her house. So, Kishor ran there and saw that accused No. 1-Jayanand was holding an axe in his hand, and Sunanda was lying on the ground. She had sustained head injuries, and blood was oozing from the injuries. Accused No. 2-Niranjan and accused No. 4-Kiran were standing nearby. Accused No. 3-Ashabai was saying accused No. 1-Jayanand to beat up Sunanda. When the informant Kishor asked accused No. 1-Jayanand what he was doing, he told him that Sunanda was practicing black magic on his wife and, therefore, she was having body pain. There is no ‘Barkat’ (prosperity) in their house. Without killing her, there will be no ‘Barkat’ (prosperity). Accused No. 1-Jayanand told him not to intervene; otherwise, he would kill him. Therefore, he came out and proceeded towards the house of Police Patil. On the way, he met Gajanan Jadhav and Bhimrao Dhule. He told them about the incident and went to the house of Police Patil. He narrated the incident to the Police Patil and came to the spot of the incident along with the Police Patil. Sunanda was lying on the ground in an unconscious condition.

(iii) He called the auto-rickshaw of Ravindra Dhule (PW-6). Then he, along with Sahebrao Paikrao and Mahendra Dhule, took Sunanda to the Hospital at Umarkhed in the auto-rickshaw of Ravindra Dhule, where Doctor advised them to take her to Government Hospital, Nanded. Accordingly, they took her to the Government Hospital, Nanded, where she was declared brought dead.

(iv) Afterwards, informant Kishor went to the Pofali Police Station and lodged a report regarding the incident. Accordingly, the offence came to be registered vide Crime No. 28/2015 against the accused No. 1 to 4 for the offence punishable under Sections 302 read with Section 34 of the IPC. The investigation was carried out, and during the investigation, Pandurang Shilar was added as accused No. 5. Upon completion of the investigation, a charge sheet was filed before the Court against all the accused persons.

(v) The Charge (Exhibit 17) was framed against all the accused, which was read over and explained to them in the vernacular. To which they pleaded not guilty and claimed to be tried. The defence of the accused persons was that they were not aware of the incident.

(vi) The prosecution has examined in all eleven witnesses to prove the charges. Out of them, PW-1/Kishor, PW-6/Ravindra and PW-11/Sarthak are the eyewitnesses. PW-2/Onkar, PW-4/Prakash and PW-7/Ramrao are the panch witnesses on the spot-cum-seizure panchanama, memorandum Statement of accused No. 1-Jayanand and recovery of the axe pursuant to the said statement. PW-3/Subhash and PW-5/Suraj are examined to demonstrate the relationship between the deceased and the accused persons. PW-8/Dr. Pratap Chavhan is the Medical Officer. PW-9/P.I. Sardarsingh and PW-10/A.P.I. Sadashiv Badikar are the Investigating Of