Arun vs State By Inspector Of Police, T.Nadu

appellant as well as A-4 were carrying pistols. But in the

cross-examination she expressed her ignorance to whether

both of them were carrying lethal weapons.

15. PW-26, the Investigating Officer in his evidence

admitted that PW-2 did not make any statement during

inquiry that both the persons who had entered her house

were carrying guns. In the circumstances it becomes highly

doubtful as to whether the appellant herein was also

carrying a pistol and entered into the house of the

deceased.

16. The trial court upon appreciation of the evidence found

that the appellant did not trespass into the house of the

deceased along with A-4 with intention to kill and

accordingly acquitted the appellant of the charge under

Section 302 read with 34 IPC. The High Court reversing the

findings of the trial court found the appellant guilty of the

charge on the basis that the appellant along with A-4

trespassed into the house of the deceased in furtherance of

their common intention to kill the deceased. That is not the

case of the prosecution.

17. The case of the prosecution was that the appellant

along with A-4 with an intention to commit the dacoity had

trespassed into the house of the deceased, the deceased

had resisted them and out of fear of being over powered A-4

shot the deceased with pistol due to which the deceased

sustained grievous injuries leading to his ultimate death.

There is no allegation against the appellant that he along with A-4 trespassed into the house of the deceased in

furtherance of their common intention to commit murder of

the deceased. The common intention according to

prosecution was to commit dacoity which is held not proved.

18. It is true that appellate court has full power to review,

re-appreciate and re-consider the evidence upon which the

order of acquittal is founded and its power to review and

re-appreciate the evidence and come to its own conclusion

is not controlled by any provisions of the Code of Criminal

Procedure, 1973. This Court in more than one case

cautioned that an appellate court, however, must always

bear in mind that in case of acquittal, there is double

presumption in favour of the accused. Firstly, the

presumption of innocence is available to him under the

fundamental principle of criminal jurisprudence that every

person shall be presumed to be innocent unless he is proved

guilty by a competent court of law. Secondly, the accused

having secured his acquittal, the presumption of innocence is further reinforced, reaffirmed and strengthened by the

trial court. If two reasonable views are possible on the

basis of the evidence on record and one favourable to the

accused has been taken by the trial court, it ought not to be

disturbed by the appellate court. [ See: Chandrappa Vs.

State of Karnataka (2007) 4 SCC 415].

19. In the present case the High Court in our considered

opinion ought not to have disturbed the order of acquittal

recorded by the trial court exonerating the appellant of the

charge under Section 302 read with 34 IPC. There is no

evidence available on record that appellant along with A-4

entered into the house of the deceased armed with pistol.

The evidence of PW-2 that the appellant was also armed

with pistol is highly doubtful for she admitted in the cross-

examination stating that she was not sure as to whether

both the accused were carrying weapon. The first

information report and evidence of PW-1 and Investigating

Officer, PW-26 do not support the half-hearted and vague statement of P.W-2. It would be unsafe to rely upon the

evidence of PW-2.

20. Second question that arises for our consideration that

even if the appellant entered the premises armed, will that

by itself establish common intention to commit murder? Is

there any evidence available on record that a common

intention developed at the spur of moment to commit the

offence of murder?

21. In the present case, the appellant alone was charged

for the offence punishable under Section 302 read with 34

IPC and whereas A-4 has been charged for the offence

punishable under Section 302 IPC. Section 34 IPC which is

nothing but rule of evidence provides that when a criminal

act is done by several persons in furtherance of the common

intention of all, each of such persons is liable for that act in

the same manner as if it were done by him alone. The

burden lies on prosecution to prove that actual participation

of more than one person for commission of criminal act was done in furtherance of common intention of all at a prior

concert. However, it is not required for the prosecution to

establish that there was a prior conspiracy or pre-

meditation, common intention can be found in the course of

occurrence. In the present case, the question is whether

the appellant shared any common intention and if so, with

whom? Neither there is any charge nor evidence against A-

4 that he committed the murder of the deceased in

furtherance of common intention shared with A-4. The trial

court as well as the appellate court found A-4 guilty for the

offence punishable under Section 302 IPC only. There is no

third person involved with whom the appellant could have

shared common intention. PW-1 and 2 in their evidence did

not attribute any overt or covert act as against the

appellant. No circumstances were brought on record from

which it could be reasonably inferred that the appellant

shared common intention with A-4 and in turn, A-4

committed the murder of the deceased in furtherance of

such common intention. There is no evidence that there was a prior meeting of mind developed at the spur of

moment and A-4 shot the deceased in furtherance of such

common intention resulting in death.

22. According to the evidence of PW-1 the appellant did

not indulge in any overt or covert act except be present at

the scene of occurrence. It is true that both of them ran

away from the scene of occurrence after A-4 shot the

deceased with a pistol in his hand. Even if it be accepted

that he was armed with a pistol no reasonable inference

could be drawn on the proven facts that he shared common

intention with A-4 to commit the offence of murder.

23. It is well established that commission of a criminal act

by several persons in furtherance of the common intention

of all pre-supposes a prior meeting of mind. The classic

statement of law is to be found in Pandurang, Tukia and

Bhillia v. The State of Hyderabad [(1955) SCR 1083] in

which Bose J. speaking for the Court observed:

"It requires a pre-arranged plan because before a man can be vicariously convicted for the criminal act of another, the act must have been done in furtherance of the common intention of them a: Mahbub Shah v. King-Emperor [(1945) L.R. 72 I.A. 148, 153, 154]. Accordingly there must have been a prior meeting of minds. Several persons can simultaneously attack a man and each can have the same intention, namely the intention to kill, and each can individually inflict a separate fatal blow and yet none would have the common intention required by the section because there was no prior meeting of minds to form a pre-arranged plan. In a case like that, each would be individually liable for whatever injury he caused but none could be vicariously convicted for the act of any of the others; and if the prosecution cannot prove that his separate blow was a fatal one he cannot be convicted of the murder however clearly an intention to kill could be proved in his case:

Barendra Kumar Ghosh v. King Emperor [(1924) L.R.52 I.A. 40, 49] and Mahbub Shah v. King-Emperor. As their Lordships say in the latter case, " the partition which divides their bounds is often very thin: nevertheless, the distinction is real and substantial, and if overlooked will result in miscarriage of justice."

The plan need not be elaborate, nor is a long interval of time required. It could arise and be formed suddenly, as for example, when one man calls on by-standers to help him kill a given individual and they, either by their words or their acts, indicate their assent to him and join him in the assault. There is then the necessary meeting of the minds. There is a pre-arranged plan however hastily formed and rudely conceived. But pre-arrangement there must be and premediatated concert. It is not enough, as in the latter Privy Council case, to have the same intention independently of each other, e.g., the intention to rescue another and, if necessary, to kill those who oppose".

24. In the present case, there is no evidence of any prior

meeting of minds. We know nothing of what they said or

did before the attack. It is in the evidence that on being

asked by the deceased as to why they entered the house

and as to what they wanted; A-4 immediately shot the

deceased with the pistol in his hand. Obviously, this was an

impulsive act of A-4 and both the courts rightly found that

he was guilty for the offence of committing murder of the

deceased punishable under Section 302 IPC but the High

Court committed a serious error in holding the appellant

vicariously liable for the criminal act of A-4.

It is nowhere suggested that appellant indulged in any

overt or covert act as such based on which any inference

of common intention could be drawn.

25. Section 34 is only a rule of evidence and does not

create a substantive offence. In Barendra Kumar Ghosh

v. King Emperor, AIR 1925 PC 1, the Privy Council has

pointed out:

"Section 34 deals with doing of separate acts, similar or diverse by several persons, if all are done in furtherance of a common intention, each person is liable for the result of them all, as if he had done them himself."

26. In Hardev Singh and another v The State of

Punjab [(1975)3 SCC 731)] this Court observed that "the

common intention must be to commit the particular crime,

although the actual crime may be committed by any one

sharing the common intention. Then only others can be

held guilty." In this case murderous assault on deceased

by A-4 was his individual act. There is no evidence

suggestive of any common intention to commit the murder.

Circumstances are completely lacking compelling us to draw

any inference that A-4 and A-5 together shared common

intention to commit the murder and in furtherance of such

common intention A-4 shot dead the deceased.

27. In Dharam Pal and Ors. v State of Haryana [(AIR

1978 SC 1492)] this Court laid down the test when Section

34 IPC is applicable and held:

"It may be that when some persons start with a pre-arranged plan to commit a minor offence, they may in the course of their committing the minor offence come to an understanding to commit the major offence as well. Such an understanding may appear from the conduct of the persons sought to be made vicariously liable for the act of the principal culprit or from some other incriminatory evidence but the conduct or other evidence must be such as not to leave any room for doubt in that behalf.

A criminal Court fastening vicarious liability must satisfy itself as to the prior meeting of the minds of the principal culprit and his companions who are sought to be constrictively made liable in respect of every act committed by the former. There is no law to our knowledge which lays down that a person accompanying the principal culprit shares his intention in respect of every act which the latter might eventually commit. The existence or otherwise of the common intention depends upon the facts and circumstances of each case. The intention of the principal offender and his companions to deal with any person who might intervene to stop the quarrel must be apparent from the conduct of the persons accompanying the principal culprit or some other clear and cogent incriminating piece of evidence. In the absence of such material, the companion or companions cannot justifiably be held guilty for every offence committed by the principal offender. (emphasis supplied)

28. In Brijlala Pd. Sinha v. State of Bihar [(1998)5

SCC 699] this Court in clear and categorical terms laid

down that "unless a common intention is established as a

matter of necessary inference from the proved

circumstances, the accused persons will be liable for their

individual act and not for the act done by any other person.

For an inference of common intention to be drawn for the

purposes of Section 34, the evidence and the circumstances

of the case should establish, without any room for doubt,

that a meeting of minds and a fusion of ideas had taken

place amongst the different accused and in prosecution of it,

the overt acts of the accused persons flowed out as if in

obedience of the command of a single mind. If on the

evidence, there is doubt as to the involvement of a

particular accused in the common intention, the benefit of

doubt should be given to the said accused person."

29. There is no dispute with the proposition that the

common intention can develop and manifest itself at the

spur of moment. But the question for consideration is,

whether there is any evidence in the present case to

indicate that in fact such a common intention was developed

between appellant and A-4 and in furtherance of such

shared common intention A-4 committed the murder of the

deceased. The evidence of PW-1 and PW-2 does not

suggest that any such common intention developed on the

spur of moment leading to the murder of deceased by A-4.

In the circumstances, it would be unsafe to convict the

appellant for the offence punishable under Section 302 with

the aid of Section 34 IPC.

30. In Suresh and another v. State of U.P. [(2001)3

SCC 673] this Court after referring to number of its earlier

judgments and the judgments of the Privy Council observed

that " it is difficult to conclude that a person, merely

because he was present at or near the scene without doing anything more, without even carrying a weapon and

without even marching alongwith the other assailants,

could also be convicted with the aid of Section 34 IPC for

the offence committed by the other accused." In the

present case, the FIR shows that at about 9.15P.M. the

appellant and A-4 entered the house and stood there; on

seeing them, the deceased got up from his chair and

moved towards them "asking them who are they"

whereupon A-4 shot the deceased causing bleeding injury

due to which deceased fell down, the appellant and A-4 ran

away towards the street. The contents of the FIR and the

evidence of PW-1 and PW-2 read together make it clear

that the appellant was not armed as erroneously held by the

High Court. In the circumstances, it would be impossible to

draw any inference that A-4 committed murder in

furtherance of common intention shared by the appellant.

In fact, neither there is any charge nor any evidence even

as against A-4 that he shared common intention along with

the appellant to commit murder of the deceased. There must be more than one person to share common intention

to commit criminal act for attracting the applicability of

Section 34 IPC. It is clear from the evidence that A-4 did not

act conjointly with the appellant in committing the murder.

If he did not act conjointly with the appellant, the appellant

could not have acted conjointly with A-4.

31. On consideration of the evidence and the material

available on record and in the light of the legal principles

referred to hereinabove, it is clear that the accusations

made against the appellant making him constructively liable

for the criminal act of murder committed by A-4 with the aid

of Section 34 IPC were not established. So far as the

present appellant is concerned, there is no evidence

whatsoever available on record to show sharing of any

common intention.

32. We accordingly affirm the judgment of the trial court

acquitting the appellant of the offence punishable under Section 302 read with Section 34 IPC. Consequently, the

judgment of the High Court convicting the appellant under

section 302 read with Section 34 IPC is set aside. We

however, affirm the conviction of the appellant under

Section 457 (1) IPC. The trial court as well as the High Court

convicted the appellant for the offence punishable under

Section 457 (1) IPC and sentenced to undergo rigorous

imprisonment for a period of 2 years and to pay a fine of Rs.

500/-, in default, to further undergo rigorous imprisonment

for a period of 6 months. No effort has been made before us

challenging the conviction of the appellant under Section

457 (1) IPC. We, accordingly, confirm the conviction and

sentence of the appellant under Section 457 (1) IPC

imposed by the courts below. The appellant however, had

already undergone the sentence. Since there is no appeal

preferred by the State as against the judgment of the High

Court acquitting the appellant of other charges the same is

not interfered with.

33. The appeal is accordingly partly allowed. The appellant

be set at liberty forthwith unless required to be in custody in

connection with any other case.

...................................................J. (Lokeshwar Singh Panta)

...................................................J. (B. Sudershan Reddy) New Delhi;

December 11,2008.