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2014 DIGILAW 2034 (BOM)

Rajendra Dada Zargad v. State of Maharashtra

2014-09-19

A.R.JOSHI, V.K.TAHILRAMANI

body2014
JUDGMENT : V.K. Tahilramani, J. 1. The appellants original accused nos. 1 and 4 have preferred this appeal against the judgment and order dated 12.4.2012 passed by the learned Additional Sessions Judge, Baramati in Sessions Case No. 105 of 2009. By the said judgment and order, the learned Sessions Judge convicted the appellants under Section 302 read with Section 149 of IPC and under Section 307 read with Section 149 of IPC. For the offence under Section 302read with Section 149 of IPC, both the appellants were sentenced to life imprisonment and to pay a fine of Rs. 2,000/- each in default to suffer further R.I. for three months. For the offence under Section 307 read with Section 149 of IPC, both the appellants were sentenced to R.I. for seven years and to pay a fine of Rs. 1000/- each in default to suffer further R.I. for three months. 2. The prosecution case, briefly stated, is as under: (i) Deceased Sonabai was the wife of accused Maruti Ananda Zargad who expired pending trial. PW-1 Banaji was the son of Sonabai and Maruti Zargad. Accused no. 1 Rajendra Zargad and accused no. 4 Pandharinath Zargad were the sons of the brother of Maruti Zargad. Thus, they were the cousin brothers of PW-1 Banaji Zargad. Original accused no. 2 Kausalya and original accused no. 3 Indubai are the wives of present appellants nos. 1 and 2. Original accused no. 5 Suresh Deokate and original accused no. 6 Satish Deokate are the sons of maternal aunt of Banaji. Accused no. 7 Mahadeo was the husband of paternal aunt of Banaji. Original accused no. 9 Muktabai is the wife of brother of Maruti Zargad i.e. she is the mother of the appellants. Original accused no. 10 Dattu Sonalkar and accused no. 11 Bapurao Sonalkar are the sons of paternal aunt of Banaji. Accused from Zargad family were residing about 50 feet away from the residence of PW-1 Banaji and his mother Sonabai. Maruti Zargad owned 2 Hect. 32 Are. agricultural land situated at village Songaon bearing Gat No. 201. Prior to about 8 to 9 months of the incident, Maruti sold 2 Hect. 32 Are. land out of Gat No. 201 to original accused no. 5 Suresh Deokate. After disposing of the said land, Maruti the father of PW-1 Banaji Zargad and the husband of deceased Sonabai started residing with original accused no. Prior to about 8 to 9 months of the incident, Maruti sold 2 Hect. 32 Are. land out of Gat No. 201 to original accused no. 5 Suresh Deokate. After disposing of the said land, Maruti the father of PW-1 Banaji Zargad and the husband of deceased Sonabai started residing with original accused no. 8 Shevantabai i.e. the aunt of Banaji Zargad. Since her husband Maruti had sold his land, his wife deceased Sonabai filed civil suit against her husband and others. Due to this, there were strained relations between Sonabai and her husband Maruti and others. (ii) The incident occurred on 25.5.2009 at about 9.30 p.m. to 10.00 p.m. PW-2 Vijay who was the husband of sister of Sonabai had been invited for dinner, hence, he was present in the house of Sonabai. When PW-1 Banaji came home at about 9.00 p.m. to 9.15 p.m. he saw that his uncle PW-2 Vijay was present in the house since he had been called for dinner. At that time, accused nos. 1 to 13 came to the house of Sonabai. They started abusing Sonabai and Banaji. Sonabai was cooking at that time. Both the appellants were holding axe, original accused no. 6 Satish Deokate was armed with bicycle chain and other accused persons were holding bamboo sticks. The accused dragged Sonabai out of the house. Both the appellants assaulted Sonabai with axe. At that time, PW-2 Vijay tried to rescue Sonabai, whereupon, both the appellants & others assaulted PW-2 Vijay. Both Sonabai and Vijay sustained injuries. PW-1 Banaji lodged F.I.R. (Exh. 58). Thereafter investigation commenced. During treatment, Sonabai died on 26.5.2009 at about 9.30 a.m. Vijay and Sonabai were first admitted at Rui Rural hospital. Thereafter, they were transferred to Bhoite hospital. As stated earlier, Sonabai died at about 9.30 a.m. on 26.5.2009. Vijay was admitted in the hospital and he came to be operated. He was unconscious for many days and he was under treatment in the hospital for a long time. After completion of investigation, charge sheet came to be filed. 3. Charge came to be framed against the appellants original accused nos. 1 and 4 and other accused under Sections 302, 307, 147, 148, 452, 504 and 506 read with Section149 of IPC. The accused pleaded not guilty to the said charge and claimed to be tried. Their defence is that of total denial and false implication. 3. Charge came to be framed against the appellants original accused nos. 1 and 4 and other accused under Sections 302, 307, 147, 148, 452, 504 and 506 read with Section149 of IPC. The accused pleaded not guilty to the said charge and claimed to be tried. Their defence is that of total denial and false implication. After going through the evidence adduced in the present case, the learned Judge convicted and sentenced the appellants as stated in para 1 above, hence, this appeal. As far as other accused are concerned, the learned Judge acquitted the original accused nos. 7 to 12 of the offences with which they were charged and the original accused nos. 2, 3, 5 and 6 along with the appellants were convicted under Section 307 read with Section 149 of IPC. 4. We have heard the learned counsel for the appellants and the learned A.P.P. for the State. After giving our anxious consideration to the facts and circumstances of the case, arguments advanced by the learned counsel for the parties, the judgment delivered by the learned Judge and the evidence on record for the below mentioned reasons, we are of the opinion that both the appellants assaulted Sonabai and PW-2 Vijay with axe resulting in death of Sonabai and injuries to Vijay. 5. The conviction is mainly based on the evidence of three eye witnesses i.e. PW-1 Banaji, PW-2 Vijay and PW-3 Khanderao. PW-2 Vijay is also an injured witness in the present case. PW-1 Banaji has stated in his evidence that Maruti Zargad is his father. Maruti Zargad owned 2 Hect. 32 Are. agricultural land situated at village Songaon bearing Gat No. 201. Prior to about 8 to 9 months of the incident, Maruti sold 2 Hect. 32 Are. land out of Gat No. 201 to original accused no. 5 Suresh Deokate. After disposing of the said land, Maruti the father of PW-1 Banaji Zargad and the husband of deceased Sonabai started residing with original accused no. 8 Shevantabai i.e. the aunt of Banaji Zargad. Since Maruti had sold his land, his wife deceased Sonabai filed civil suit against her husband Maruti and others. Due to this, there were strained relations between Sonabai and her husband Maruti and others. 6. 8 Shevantabai i.e. the aunt of Banaji Zargad. Since Maruti had sold his land, his wife deceased Sonabai filed civil suit against her husband Maruti and others. Due to this, there were strained relations between Sonabai and her husband Maruti and others. 6. Banaji has stated that the incident occurred on 25.5.2009 at about 9.30 p.m. to 10.00 p.m. PW-2 Vijay who was the husband of sister of Sonabai had been invited for dinner, hence, he was present in the house of Sonabai. When PW-1 Banaji came home at about 9.00 p.m. to 9.15 p.m. he saw that his uncle PW-2 Vijay was present in the house since he had been called for dinner. At that time, accused nos. 1 to 13 came to the house of Sonabai. They started abusing Sonabai and Banaji. Sonabai was cooking at that time. Both the appellants were holding axe, original accused no. 6 Satish Deokate was armed with bicycle chain and other accused persons were holding bamboo sticks. The accused dragged Sonabai out of the house. Both the appellants assaulted Sonabai with axe. At that time, PW-2 Vijay tried to rescue Sonabai, whereupon, both the appellants assaulted PW-2 Vijay with axe and other accused assaulted him with sticks. Both Sonabai and Vijay sustained injuries. 7. PW-2 Vijay who is an injured witness in this case, has stated about the presence of the appellants and some of the other accused in this case. He has stated that both the appellants were holding axe and appellant no. 1 Rajendra assaulted Sonabai with axe and appellant Pandharinath assaulted with axe on the head of Sonabai. Thereafter, this witness has stated that when he went to rescue Sonabai, the appellant no. 1 Rajendra assaulted him on his head with axe and appellant no. 2 i.e. original accused no. 4 Pandharinath assaulted him with axe on his left shoulder, wrist and nose. He has stated that other accused assaulted them with sticks. Due to assault, PW-2 Vijay has stated that, he became unconscious. He was unconscious for about two months. Vijay has stated that both Sonabai and he sustained injuries. 8. Mr. Khamkar submitted that the evidence of PW-2 Vijay cannot be relied upon because his statement was recorded on 5.8.2009 i.e. after more than two months after the incident. Due to assault, PW-2 Vijay has stated that, he became unconscious. He was unconscious for about two months. Vijay has stated that both Sonabai and he sustained injuries. 8. Mr. Khamkar submitted that the evidence of PW-2 Vijay cannot be relied upon because his statement was recorded on 5.8.2009 i.e. after more than two months after the incident. As far as this aspect is concerned, the medical evidence shows that Vijay was unconscious for a number of days and he was in the hospital for more than a month. The evidence of Vijay himself shows that he was unconscious for about two months, probably he is trying to state that he was in coma for two months. The medical condition of Vijay was not stable for about two months after the incident, hence, his statement was recorded on 5.8.2009 after his condition became stable. Thus, just because the statement of Vijay was recorded on 5.8.2009, it cannot be said to be such a fact as to cause us to disbelieve his evidence. 9. PW-3 Khanderao who is the third eye witness, has stated that he resides at a distance of 300 feet from the house of Sonabai. He has stated that Sonabai had filed civil suit against her husband Maruti and original accused no. 5 Suresh Deokate in relation to the land of Maruti which Maruti had transferred in the name of his sister's son Suresh Deokate (original accused no. 5). Khanderao has stated that on 25.5.2009 at about 9.30 to 10 p.m. he heard hue and cry from the house of Sonabai, therefore, he went to the spot. He saw that both the appellants were holding axe in their hands, original accused no. 6 Satish was armed with motorcycle chain and other accused were armed with sticks. Khanderao has stated that both the appellants assaulted Vijay and Sonabai with axe. They assaulted Sonabai and Vijay on the head and other parts of the body with axe. The other accused persons who were holding sticks, also assaulted Vijay with sticks. 10. The evidence of these three eye witnesses shows the motive for the appellants to commit the crime. The motive was that deceased Sonabai had filed a civil suit against her husband Maruti Zargad and original accused no. 5 Suresh Deokate as well as other persons because Maruti had transferred his land. 10. The evidence of these three eye witnesses shows the motive for the appellants to commit the crime. The motive was that deceased Sonabai had filed a civil suit against her husband Maruti Zargad and original accused no. 5 Suresh Deokate as well as other persons because Maruti had transferred his land. The appellants are all close relations of Maruti and they were siding with Maruti rather than Sonabai. 11. Thereafter Mr. Khamkar submitted that the evidence of none of the eye witnesses can be relied upon because the evidence of PW-1 Banaji shows that there was no light in the house as well as on the street at the time of the incident. He has submitted that the evidence of PW-1 Banaji stating that there was light in the house and on the street is an improvement. As far as this aspect is concerned, it is clear from the evidence that PW-2 Vijay had been invited for dinner to the house of Sonabai and at that time, Sonabai was cooking dinner. Obviously, Sonabai could not have been cooking dinner in the dark. Both the appellants being close relations of Sonabai, Banaji and Vijay were well known to the witnesses and there could be no mistake on their part in identifying the appellants. Moreover, we would like to advert to the evidence of PW-2 Vijay and PW-3 Khanderao who have specifically stated that there was light in the house of Sonabai and street light was also on. No omission has been brought out in the evidence of both these witnesses. Thus, this clearly shows that there was light in the house of Sonabai as well as on the street at the time of the incident. 12. Thereafter Mr. Khamkar submitted that as far as PW-1 Banaji is concerned, he has made a number of improvements in his evidence. As far as this contention is concerned, it is noticed that there are no improvements as far as the presence of both the appellants is concerned and the fact that they were each holding an axe in their hand and with the said axes they assaulted both Sonabai & Vijay. Thus, we see no reason to disbelieve PW-1 Banaji. 13. It is the prosecution case that both the appellants assaulted Sonabai and Vijay. This is borne out by the medical evidence. PW-11 Dr. Thus, we see no reason to disbelieve PW-1 Banaji. 13. It is the prosecution case that both the appellants assaulted Sonabai and Vijay. This is borne out by the medical evidence. PW-11 Dr. Kokane conducted the post-mortem on the dead body of Sonabai. On external examination, he noticed following injuries: (i) Clean and incised wound 4 cm. x 1 cm. into muscle deep over left parietal region of scalp; (ii) Clean and incised wound 3 cm. x 5 cm. Left side of frontal region of scalp suture plus. (iii) Clean and incised wound 2 cm. x 0.5 cm. over right hand about 2 cm. from right thumb. (iv) Contusion 4 cm. x 4 cm. over right ischial tuberosity On internal examination, he found injuries as under: (i) Fracture of Fronto parietal bone. INJURIES ON HEAD: (i) Hematoma under scalp (ii) Intracranial haemorrhage (iii) Fracture of frontal and parietal bone Dr. Kokane further opined that injury Nos. 1 to 3 and intracranial hemorrhage in respect of brain, are collectively sufficient to cause death in the ordinary course of nature. The injuries are consistent with the version given by the eye witnesses. 14. As far as injuries to PW-2 Vijay are concerned, PW-10 Dr. Bhoite examined Vijay. Dr. Bhoite has stated that patient was admitted in I.C.U. On external examination, he found following injuries: (i) C.L.W. over left shoulder, measuring 6 cm. x 3 cm. 3 x 3 cm. (ii) C.L.W. with cut of upper lip measuring 4 cm. x 3 cm. 3 x 3 cm. (iii) C.L.W. over left parietal region measuring 10 cm. x 5 cm. x 5 cm. Dr. Bhoite has stated that patient Vijay had undergone CT Scan and thereafter he noticed following internal injuries: (i) Contusion in left frontal parenchyma (ii) Cerebral edema (iii) Extensive pneumocephalus (iv) Fracture of left parietal bone and defect in the left parietal bone near coronal suture (v) Fracture of nasal bone 15. Mr. Khamkar tried to submit that looking to the injuries sustained by Vijay, it cannot be said that he was assaulted with axe. In this connection, we would like to advert to the evidence of Dr. Bhoite wherein he has stated that all the injuries to Vijay were caused due to hard and sharp object. Dr. Bhoite has further stated that all these injuries are sufficient to cause death if not treated timely. Dr. In this connection, we would like to advert to the evidence of Dr. Bhoite wherein he has stated that all the injuries to Vijay were caused due to hard and sharp object. Dr. Bhoite has further stated that all these injuries are sufficient to cause death if not treated timely. Dr. Bhoite has further stated that patient Vijay was operated by the Neuro Surgeon and he was admitted in his hospital for more than a month. Thus, the medical evidence also supports the case of the prosecution. 16. Mr. Khamkar further submitted that as far as injuries to Sonabai are concerned, she has sustained only four injuries. He submitted that only injury no. 1 is a fatal injury and it has not come on record as to which of the two injuries, was the fatal injury. He therefore, submitted that the case would fall under Section 304 Part-I of IPC and not under Section 302 of IPC. 17. It is seen that Sonabai had sustained four injuries which are reflected in para 13 above. Injury Nos. 1 and 2 are on the head and they have caused extensive internal damage. It has caused not only extensive fracture but also intracranial haemorrhage as well as hematoma under the scalp. The evidence on record shows that both accused shared the common intention with each other in assaulting Sonabai and causing her death. Thus, each would have to be fastened with the same liability. Looking to the injury, we are not inclined to accept the submission of Mr. Khamkar that the case would fall under Section 304 Part-I of IPC. 18. Mr. Khamkar then contended that the injuries were caused to Sonabai and Vijay while exercising the right of private defence. He submitted that accused no. 1 Rajendra had lodged complaint against PW-1 Banaji, PW-2 Vijay, deceased Sonabai and one Ishwar Zargad. He has produced copy of the judgment and order in the said case which is Regular Criminal Case No. 425 of 2009 which was tried by the learned Judicial Magistrate F.C., 3rd Court, Baramati, District Pune. It is noticed that the said case is under Sections 324, 504, 506 read with Section 34 of IPC. In the said case lodged by appellant no. 1 i.e. original accused no. 1, all the accused including PW-1 Banaji and PW-2 Vijay came to be acquitted. It is noticed that the said case is under Sections 324, 504, 506 read with Section 34 of IPC. In the said case lodged by appellant no. 1 i.e. original accused no. 1, all the accused including PW-1 Banaji and PW-2 Vijay came to be acquitted. In any event, it is a case which is at the most under Section 324 of IPC whereas the present case is under Sections 302 and 307 read with Section 149 of IPC. There were only four accused in the said case which was lodged by appellant no. 1 whereas in the present case, there were in all 13 accused. The weapons used in the case lodged by appellant no. 1 were sticks whereas the weapons used by the accused persons in the case lodged by PW-1 Banaji, were axes, sticks and cycle chain. The case of the appellant no. 1 in the F.I.R. lodged by him is that accused nos. 1 to 3 assaulted him with sticks and stones. The injury certificate of appellant no. 1 is not on record. He has not taken trouble to bring it on record in the present case. It was also not brought on record in the case lodged by him against the witnesses and deceased in this case. Looking to all these facts, the defence of the right of private defence cannot be accepted. 19. Mr. Khamkar submitted that in the present case, the appellants were only charged under Section 302 read with Section 149 of IPC and under Section 307 read with Section149 of IPC and no alternate charge was framed under Section 302 read with Section 34of IPC. He submitted that in view of evidence on record and the judgment passed by the learned Sessions Judge, in relation to Section 302, Section 149 is not attracted, hence, the conviction of the appellants cannot be upheld under Section 302 read with Section 34of IPC. 20. Though originally charge sheet was filed against 13 accused, thereafter Maruti Zargad expired, hence, the case against him stood abated, hence, trial went on in relation to 12 accused, out of which, the appellants are accused nos. 1 and 4. The relevant charge framed was under Section 302 read with 149 of IPC and 307 read with149 IPC. The learned Sessions Judge has convicted the appellants under Section 302read with Section 149 of IPC. 1 and 4. The relevant charge framed was under Section 302 read with 149 of IPC and 307 read with149 IPC. The learned Sessions Judge has convicted the appellants under Section 302read with Section 149 of IPC. It is noticed that none of the other accused were convicted under Section 302 read with Section 149 of IPC and original accused no. 2-Kaushlya, accused no. 3 Indubai, accused no. 5 Suresh and accused no. 6 Satish along with the appellants were convicted under Section 307 read with Section 149 of IPC. We are of the opinion that the Sessions Court was not justified in convicting the appellants under Section 302 read with Section 149 of IPC because these two accused form a number which falls short of the minimum number required to form an unlawful assembly under Section 141 of IPC. 21. The Sessions Court was not justified in invoking Section 149 to convict these two appellants for an offence under Section 302 because the said number falls short of the minimum number required to form an unlawful assembly under Section 141 IPC. It is true that there can be an unlawful assembly of less than five named accused so long as there is material to come to the conclusion that the prosecution has established that apart from these named accused there were also others who were unnamed but who were members of such assembly and shared the common object of that unlawful assembly. In the instant case, it is true that originally the complaint stated that 13 persons formed an unlawful assembly, out of which, only 12 persons were brought to trial because one of them had expired. Out of these 12 accused, the Sessions Judge came to the specific conclusion that only the appellants together formed an unlawful assembly with the common object to murder Sonabai. Therefore, in the absence of specific finding that there were other members also in the said unlawful assembly, the invocation of Section 149 would be untenable. Hence, the Sessions Court erred in convicting the appellants under Section 302 with the aid of Section 149 of IPC. However, looking to the evidence and the facts and circumstances of this case, the appellants in relation to death of Sonabai can, in our opinion, be convicted under Section 302 read with Section 34 IPC. Mr. Hence, the Sessions Court erred in convicting the appellants under Section 302 with the aid of Section 149 of IPC. However, looking to the evidence and the facts and circumstances of this case, the appellants in relation to death of Sonabai can, in our opinion, be convicted under Section 302 read with Section 34 IPC. Mr. Khamkar then submitted that substituting Section 149 with Section 34 in the absence of charge under Section 34 is not legally permissible. 22. In relation to Sections 34 and 149 IPC, we would like to refer to a decision of the Supreme Court in Karnail Singh Vs. Punjab, 1954 SCR 904 : ( AIR 1954 SC 204 ) Venkatarama Ayyar, J., speaking for the Court held: "......It is true that there is substantial difference between the two sections but they also to some extent overlap and it is a question to be determined on the facts of each case whether the charge under Section 149 overlaps the ground by Sec. 34. If the common object which is the subject matter of the charge under Section 149does not necessarily involve a common intention, then the substitution of Section 34 for Section 149 might result in prejudice to the accused and ought not therefore be permitted. But if the facts to be proved and the evidence to be adduced with reference to the charge under Section 149 would be the same if the charge were under Section 34, then the failure to charge the accused under Section 34 could not result in any prejudice and in such cases the substitution of Section 34 for Section 149 must be held to be formal matter. There is no such broad proposition of law that there can be no recourse to Section 34 when the charge is only under Section 149. Whether such recourse can be had or not must depend on the facts of each case." 23. In the case of Amar Singh Vs. State of Haryana, reported in AIR 1973 S.C. 221 , the Supreme Court observed thus: "Conviction of an accused under Section 302 read with Section 34though charged under Section 302 read with Section 149 is not illegal when the facts proved and evidence adduced would have been the same if the accused had been charged under Section 302read with Section 34. In such a case failure to charge the accused under Section 34 cannot result in any prejudice" In the said case, the decision in the case of Karnail Singh Vs. State of Punjab reported in AIR 1954 SC 204 : 1954 SC 904 : 1954 Cri. L.J. 58 was followed. 24. The Supreme Court in the case of Amar Singh (supra) further observed that: "The findings of the trial Court as confirmed by the High Court would clearly show that the appellant had the common intention. The facts proved and the evidence adduced would have been the same if the appellant had been charged under Section 302 read with Section 34 and we do not see how the appellant was prejudiced". 25. Reliance can also be placed on the decision of the Supreme Court in the case of Ram Tahal and others Vs. The State of U.P. reported in AIR 1972 SC 254 , wherein there were originally six accused persons who were charged and convicted by the Sessions Court under Section 302 read with Section 149 and under Section 307read with Section 149 IPC but the High Court in appeal acquitted two of them giving benefit of doubt and convicted the rest of the four accused under Section 304 read with Section 149 and under Section 307 read with Section 149 of IPC. The Supreme Court observed that: "5. The position in law is therefore clear and it appears to us that in so far as the conviction and sentence of the appellants under Sections 148, 302 read with Section 149 or Section 307 read with Section 149 are concerned, they cannot be sustained on the charge as framed against them which definitely named the three appellants as also the three acquitted accused as being members of an unlawful assembly who had in the prosecution of the common object of such assembly, unlawfully demolished the thatch of Ram Badal and were guilty of an offence of rioting under Section 148 and of murder of Ram Harakh and Jagga under Section302 read with Section 149 and of the attempted murder of Badal, Sukhraj and Orilal under Section 307 read with Section 149. 6. While this is so the question is whether the convictions under Section 302 and Section 307 can be sustained on the ground that they had a common intention to commit the said offence. 6. While this is so the question is whether the convictions under Section 302 and Section 307 can be sustained on the ground that they had a common intention to commit the said offence. The learned advocate for the appellant strenuously contends that before the appellants can be convicted under the aforesaid section read with Section 34 it must be shown that they had a prior concert to commit the said offence which cannot be concluded on the facts of this case. There is no doubt that a common intention should be anterior in time to the commission of the crime showing a pre-arranged plan and prior concert, and though, it is difficult in most cases to prove the intention of an individual, it has to be inferred from the act or conduct or other relevant circumstances of the case. This inference can be gathered by the manner in which the accused arrived on the scene and mounted the attack, the determination and concert with which the beating was given or the injuries caused by one or some of them, the acts done by others to assist those causing the injuries the concerted conduct subsequent to the commission of the offence for instance that all of them had left the scene of the incident together and other acts which all or some may have done as would help in determining the common intention. In other words, the totality of the circumstances must be taken into consideration in arriving at the conclusion whether the accused had a common intention to commit an offence with which they could be convicted." 26. In the present case, inference can be drawn regarding common intention from the way the two appellants arrived at the scene of crime and mounted the attack on Sonabai then both of them left the scene together. 27. The Supreme Court in the case of Gupteshwar Nath Ojha and another Vs. State of Bihar, reported in AIR 1986 SC 1649 :1986 Cri. L.J. 1242, held as under: "in a case where the accused have been earlier convicted under Section 302 read with Section 149 of IPC, the accused can safely be convicted with the aid of Section 34 as the common intention can even be inferred from the circumstances that all the accused persons assaulted the deceased and any prosecution witnesses simultaneously. L.J. 1242, held as under: "in a case where the accused have been earlier convicted under Section 302 read with Section 149 of IPC, the accused can safely be convicted with the aid of Section 34 as the common intention can even be inferred from the circumstances that all the accused persons assaulted the deceased and any prosecution witnesses simultaneously. Hence, so far as those who participated in the incident it could not be doubted that they shared the common intention to beat the deceased and other prosecution witnesses and in this view of the matter so far as the accused whose participation in the incident is clearly found by the High Court and also by the Sessions Court, his conviction under Section 304 read with Section 34 of IPC can be justified." 28. In Malhu Yadav and others Vs. State of Bihar reported in (2002) 5 SCC 724 : AIR 2002 SC 2137 , the Supreme Court held as under: "14....The prosecution has established that the aforesaid four accused persons joined in the actual doing of the act which resulted in the death of the deceased and the common intention though not initially in existence, was formed during the transaction on the spot. The existence of the common intention amongst the aforesaid accused persons has been established from the surrounding circumstances and from their conduct on the spot. The absence of the charge under Section 34 against the aforesaid accused persons would not make any difference because on the proved facts and evidence available on record, their intention to commit an offence has been established. Failure to charge accused under Section 34, who stood charged under Section 149 IPC would not result in any prejudice to them (Dalip Singh Vs. State of Punjab; 1954 SCR 145 ). The aforesaid accused persons can, therefore, be convicted for the major offence read with Section 34." 29. In Chittarmal Vs. State of Rajasthan; AIR 2003 SC 796 , the Supreme Court held as under: "14. It is well settled by a catena of decisions that Section 34 as well as Section 149 deal with liability for constructive criminality i.e., vicarious liability of a person for acts of others. Both the Sections deal with combination of persons who become punishable as sharers in an offence. Thus they have a certain resemblance and may to some extent overlap." 30. Both the Sections deal with combination of persons who become punishable as sharers in an offence. Thus they have a certain resemblance and may to some extent overlap." 30. In the decision of the Supreme Court in the case of Hamlet alias Sasi and others Vs. State of Kerala reported in (2003) 10 S.C.C. 108, the Supreme Court held that in cases where Section 149 is not applicable, conviction with the aid of Section 34 of IPC would be permissible if there is evidence on record to show that the accused shared the common intention to commit the crime. 31. The Supreme Court in the case of Dhaneswar Mahakud and others Vs. State of Orissa reported in AIR 2006 SC 1727 , observed that "If the injuries caused are sufficient in the ordinary course of nature and they have been caused in furtherance of the common intention then each and every individual propagating the common intention can be convicted under Section 302 read with Section 34 of IPC although he has not been charged under Section 34 of IPC along with Section 302 of IPC." 32. In the case of Dhaneswar Mahakud (supra), there were six accused. The charge was framed under Section 302 read with Section 149 of IPC. The Sessions Court convicted all six accused under Section 302 read with Section 149 IPC. In an appeal filed in the High Court, two of the accused came to be acquitted. Since two of the accused came to be acquitted, the High Court held that remaining accused who are four in number, could not be convicted taking the aid of Section 149 of IPC. The question which came up for consideration before the Supreme Court was whether in the absence of a charge under Section 34 IPC the accused-appellants can be convicted with the aid thereof, when they were charged with an offence under Section 302 read with Section 149 of IPC only. The Supreme Court held that if the injuries caused are sufficient in the ordinary course of nature and they have been caused in furtherance of the common intention, then each and every individual propagating the common intention can be convicted under Section302 read with Section 34 IPC, although he has not been charged under Section 34 IPC and has been charged under Section 149 IPC along with Section 302 IPC. 33. 33. In Dhaneshwar Mahakud (supra), it was further observed as under: "The absence of the charge under Section 34 against the aforesaid accused persons would not make any difference because on the proved facts and evidence available on record, their intention to commit an offence has been established. Failure to charge accused under Section 34, who stood charged under Section 149 IPC would not result in any prejudice to them (Dalip Singh Vs. State of Punjab, 1954 SCR 145 ). The aforesaid accused persons can, therefore, be convicted for the major offence read with Section 34". 34. In the case of Dhaneshwar Mahakud (supra), after observing as above, it was held that even if the charge was framed under Section 302 read with Section 149, in such case also, in the absence of charge under Section 34, an accused can be convicted with the aid of Section 34. 35. In the light of the aforesaid principles enunciated by the Supreme Court, we shall now scrutinize the evidence led by the prosecution. We have already reproduced in detail the evidence of three eye witnesses in this case i.e. PW-1 Banaji, PW-2 Vijay and PW-3 Khanderao. Out of these three eye witnesses, PW-2 Vijay is an injured witness. He has received grievous injuries in the incident. So far as this appeal is concerned, as far as the offence under Section 302 is concerned, we are only concerned with present two appellants. It is seen that the appellants were the only persons armed with axe. The eye witnesses have stated that both the appellants came to the spot armed with axe and then both almost simultaneously assaulted Sonabai with axe, thereafter the appellants went away together, from those averments common intention can safely be inferred and from the conduct of the accused persons on the spot. The totality of circumstances show that the accused shared the common intention to assault Sonabai with axe and cause her death. Moreover, in the present case the facts to be proved and the evidence to be adduced with reference to charge under Section 149 would be the same if the charge was under Section 34, in such case no prejudice can be said to be caused to the appellants. Looking to all the facts, the conviction of the appellants would be justified under Section302 read with Section 34 of IPC for causing the death of Sonabai. 36. Looking to all the facts, the conviction of the appellants would be justified under Section302 read with Section 34 of IPC for causing the death of Sonabai. 36. In view of the above, we are inclined to alter the conviction of the appellants under Section 302 read with Section 149 to Section 302 read with Section 34 of IPC. As far as Section 307 of IPC is concerned, both the appellants have been convicted along with four other accused for the offence under Section 307 read with Section 149. We are, therefore, not inclined to interfere with the said conviction and sentence. 37. In the result, the following order is passed: ORDER : (1) The conviction of both the appellants i.e. original accused nos. 1 and 4 under Section 302 read with Section 149 is converted into Section 302 read with Section 34 of IPC and the sentence imposed by the learned Sessions Judge on both the appellants under Section 302 read with Section 149 of IPC is maintained for the offence under Section 302 read with Section 34 of IPC. (2) The conviction and sentence of the appellants under Section307 read with Section 149 of IPC, is maintained. (3) The judgment and order dated 12.4.2012 passed by the learned Additional Sessions Judge, Baramati in Sessions Case No. 105 of 2009 stands modified to the extent indicated above qua appellants nos. 1 and 2 i.e. original accused nos. 1 and 4. (4) The appeal is disposed of accordingly.