Shashi Mohan vs State Of M.P

and A3 faced trial for alleged commission of offence

punishable under Sections 302 read with Section 34 of the

Indian Penal Code, 1860 (in short the `IPC'). Additional

Sessions Judge, Morena, found them guilty and sentenced

each to life imprisonment. During the pendency of the appeal

before the High Court A1 died and, therefore, the appeal was

held to have abated so far as A1 is concerned. The present

appeal is by A2. A1 and A2 were convicted and sentenced

under Section 302 read with Section 34 IPC while A3 was

found guilty of offence punishable under Section 302 IPC.

3. Prosecution version as unfolded during trial is as follows:

On 3.3.92 at 9.30 a.m. on a road from Pipalwali Mata to

Rui Ki Mandi and ahead of a Chauraha in Morena one Rakesh

S/o Ram Singh (hereinafter referred to as `deceased') was shot

dead by A3 who pumped into him three gun shots resulting in

instant death of said Rakesh. There reportedly existed 2 previous enmity between the family of A1 and of Ram Singh

father of the deceased. A1 and Ram Singh are real brother.

The incident was reported to Police at Police Station Kotwali at

9.40 a.m. by Radheyshyam (PW1), brother of the deceased

Rakesh. FIR (Ex.P/1) was recorded and the investigation was

set in motion by Registering a crime at Sr. No.144/92 under

Section 302/34 IPC. After completion of investigation, charge

sheet was filed. Accused persons abjured guilt and claimed

trial.

4. In order to establish its accusations, the prosecution

examined 12 witnesses. PWs, 1, 2 and 3 were stated to be

eyewitnesses. In order to establish its plea of false implication

DW1 was examined to prove the presence of A3 at a different

place. Trial Court found the evidence to be cogent and

recorded conviction as noted above.

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5. Before the High Court the primary stand of the appellant

was that so far as he is concerned, Section 34 IPC has no

application. The High Court did not accept that plea.

6. In support of the appeal, learned counsel for the

appellant submitted that the High Court has categorically

noted that none of the eye witnesses stated that A2, the

present appellant has pre-mediated with A1 and A3 before the

offence was committed. The witnesses admitted that the

appellant was not armed with weapon and no overt act was

attributed to him. Further, he was coming from a different

direction and, therefore, the question of his sharing the

common intention was not there.

7. Learned counsel for the respondent, on the other hand,

submitted that though A2 was not armed with and was

coming from a different direction, his presence has been

established. He being the son of A1 and the brother of A3, the

4 main assailant the ingredients of Section 34 have been clearly

established.

8. Under the provisions of Section 34 IPC the essence of the

liability is to be found in the existence of a common intention

animating the accused leading to the doing of a criminal act in

furtherance of such intention. As a result of the application of

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 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. Pulla Reddy and Ors. v.

State of Andhra Pradesh (AIR 1993 SC 1899), Section 34 is

applicable even if no injury has been caused by the particular 5 accused himself. For applying Section 34 it is not necessary

to show some overt act on the part of the accused.

9. When the background facts are considered in the light of

legal principles set out above, the position is clear that the

accusations were not established so far as the present

appellant is concerned. No evidence was led to show sharing

of common intention. The appeal deserves to be allowed which

we direct. He be set at liberty forthwith unless required to be

in custody in connection with any other case.

...............................

J. (Dr. ARIJIT PASAYAT)

...............................J. (P. SATHASIVAM)

New Delhi, July 15, 2008

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