Holding

The appellant was not proved to have shared a common intention with A‑4; therefore, his conviction under Section 302 read with Section 34 IPC was set aside.

Summary

The appellant (A‑5) was tried with seven others for the murder of Venkatesan Seshastripuram. A‑4 entered the deceased's house and shot him, resulting in death. The trial court convicted A‑4 under s.302 IPC and A‑5 under s.398 and s.457(1) IPC, acquitting A‑5 of s.302 read with s.34 IPC. The Madras High Court reversed this acquittal, holding A‑5 liable under s.302 with s.34 on the basis of a common intention with A‑4. On appeal, the Supreme Court examined whether the prosecution had proved beyond reasonable doubt that A‑5 shared a common intention with A‑4, was armed, and entered the house to kill. The Court found no evidence of A‑5 being armed, no prior meeting of minds, and no inference of common intention; thus the conviction under s.302/34 was unsustainable. The Court set aside the High Court's conviction, affirmed the acquittal on the murder charge, and upheld the conviction under s.457(1) IPC. The appeal was partly allowed.

Issues considered

Whether the appellant can be held liable under Section 302 read with Section 34 IPC for the murder committed by A‑4.
Whether the presence of the appellant at the scene or being armed, if at all, establishes a common intention to commit murder.
Whether the appellate court should disturb an acquittal when two reasonable interpretations of the evidence exist.

Legislation cited

Arms Acts. 3 read with 25(1-B)(a)
Indian Penal Code, 1860s. 120-B, s. 302, s. 34, s. 398, s. 449, s. 457(1)

Subjects

common intentionSection 34 IPCmurderacquittaldouble presumptionconstructive liabilityappellate reviewevidence assessmentArms Act

Judgment

[2008] 17 S.C.R. 279

ARLIN A
~-;><,
II.
STATE BY INSPECTOR OF POLICE, TAMIL NADU
(Criminal Appeal No. 1657 of 2007)
DECEMBER 11, 2008 91
[LOKESHWAR SINGH PANTA AND B. SUDERSHAN
REDDY, JJ.]
;,1
Penal Code, 1860 - ss. 302134 and 457(1) - Prosecution
under - Of appellant-accused (A5) alongwith seven co- c
accused - Allegation that A5 with A4 trespassing house of
deceased armed with fire arms with intention to commit
dacoity - In the process A-4 firing at the deceased resulting
in his death - Trial Court convicting A-4 uls 302 and A-5
convicted uls 457(1) - Other co-accused acquitted of all the D
charges - High Court convicting A-5 also u/s 302134 - On
appeal, held: High Court should not have disturbed the order
of acquittal of A-5 uls 302134 - It has not been proved beyond
reasonable doubt that A-5 shared common intention with A-
4 or that he was armed with fire-arm - He cannot be made E
constructively liable for the act of A-4 - Hence, acquitted
under s.302134 - Conviction u/s 457(1) confirmed.
~

Criminal Law - Appeal against acquittal - Appreciation

... )..-
of - Held: While appreciating appeal against acquittal, courts
to keep in mind that there is double presumption in favour
of the accused - When two views were possible and the one
F

favourable to the accused has been taken into account for
acquitting the accused, appellate court should not disturb
such order - Appeal.
G
Appellant-accused (A-5) was prosecuted alongwith
~ .., seven other co-accused ulss.120-B, 398, 449, 302/34 IPC
and u/s 3 r/w s. 25(1-B)(a) of Arms Act.
..
279 H
280 SUPREME COURT REPORTS [2008] 17 S.C.R.

A The prosecution case was that pursuant to a
conspiracy amongst all the accused, A-4 and A-5 with
intention to commit robbery, entered the house of the
deceased. Wife of the deceased wl:len enquired as to why
they entered the house A-4 shout at the deceased, as a
B result of which he later died. PW-1 and PW-2 (mother of
the deceased) were the eye-witnesses to the incident. Trial
Court found A-4 guilty of offence punishable u/s 302 IPC.
Appellant-accused was found guilty u/ss. 398 and 457(1)
IPC. He was acquitted of the charges u/ss.120-B, 449, 302
c r/w s.34 IPC as well as under. the provis_ions of Arms Act
giving a finding that A-5 did not t,respass into the house
of the deceased alongwith A-4 with intention to kill the
deceased. Rest of the accused were acquitted of all the
charges. High Court reversing the judgment of trial court
0 so far as appellant was concerned, convicted him also
u/s 302 r/w s. 34 IPC, finding that A-5 alongwith A-4
trespassed the house of the deceased in furtherance of
their common intention to kill the deceased. Hence, the
present appeal.

E Partly allowing the appeal, the Court

HELD: 1. It is true that appellate cou·rt has full power
to review, re- appreciate and re -consider the evidence
1

upon which the order of acqui~tal is founded and its
F power lo review and re-appreciate the evidence and come
to its own conclusion is not controlled by any provisions
of Cr.P.C. 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
G 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 c~urt of law. Secondly, the
accused having secured his ac,quittal, the presumption
of innocence is further reinforced, reaffirmed and
H
ARUN v. STATE BY INSPECTOR OF PO!}CE, TAMIL 281
NADU

strengthened by the trial court. If two reasonable views A
·-·,,,. 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.
[Para 18] [289-8, C, E]
B
2.1. 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. The High Court ought not to have
disturbed the order of acquittal recorded by the trial court
exonerating the appellant of the charge u/s. 302 r/w. s. 34
c
IPC. [Paras 19 and 31] [289-F; 296-A]

2.2. 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, D
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 E
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. [Para 17] [288-
G-H; 289-A] F
> Chandrappa vs. State of Kamataka 2007 (4) SCC 415,
~ \.--
relied on.

2.3. In the instant case, the appellant alone was
charged for the offence punishable u/s. 302 read with 34 G
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 H

\
282 SUPREME COURT REPO~TS [2008] 17 S.C.R

A on prosecution to prove that actl1al 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-
s meditation, common intention can be found in the course
of occurrence. [Para 21] (290-C-.E]

2.4. Neither there is any charge nor evidence against
A-5 that he committed the murder of the deceased in
C furtherance of common intenti<m shared with A-4. There
is no third person involved with whom the appellant
could have shared common intention. PWs 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
D 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
E such common intention resul~ing in death. Even if it be
accepted that the appellant was armed with a pistol no
reasonable inference could be drawn on the proven facts
that he shared common inten~ion with A-4 to commit the
offence of murder. [Paras 21 'and 22] [290-E-H; A, C]
F
2.5. It !s 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 han~. Obviously, this was an
G 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 ¢rror in holding the appellant
vicariously liable for the criminal act of A-4. [Para 24] [292-
H E-F]
ARUN v. STATE BY INSPECTOR OF POLICE, TAMIL 283
NADU
2.6. The evidence of PW-1 and PW-2 does not A
suggest that any such common intention developed on
the spur of moment leading to the murder of deceased
by A-4. 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. In fact, neither there is any charge nor B
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 c
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. In the circumstances, it would
be unsafe to convict the appellant for the offence
0
punishable under Section 302 with the aid of Section 34
IPC. [Paras 29 and 30] [295-A-B; D-G]

2.7. The judgment of the High Court convicting the
appellant under section 302 read with Section 34 IPC is
set aside and the conviction and sentence of the E
appellant under Section 457 (1) IPC imposed by the
courts below is confirmed. [Para 32] [296-C]

Pandurang, Tukia and Bhillia v. The State of Hyderabad
1955 SCR 1083; Barendra Kumar Ghosh v. King Emperor, F
AIR 1925 PC 1; Hardev Singh and Anr. v. The State of Punjab
1975 (3) SCC 731; Dharam Pal and Ors. v. State of Haryana
AIR 1978 SC 1492; Brijlala Pd. Sinha v. State of Bihar 1998
(5) SCC 699 and Suresh and Anr. .v. State of U.P. 2001 (3)
sec 673, relied on. G
Case Law Reference:
2001 (4) sec 415 Relied on. Para 18
1955 SCR 1083 Relied on. Para 23
H
284 SUPREME COURT REPORTS (2008] 17 S.C.R.

A AIR 1-925 PC 1 Relied on. Para 25

1975 (3) sec 131 Relied on. Para 26

AIR 1978 SC 1492 Relied on.
I
Para 27

B
1998 (5) sec 699 Relied on. Para 28

2001 (3) sec 673 'Relied on. Para 30

CRIMINAL APPELLATE JURISDICTION : Criminal Appeal
No. 1657 of 2007.

"C From the Judgment dated 14~8.2007 of the High Court of
Madras, Bench at Madurai in Crl. Appeal No. 279 of 2005.

S.B. Sanyal, S. Mahendran for the Appellant.

D
s: Thananjayan for the Respondent.
'

The Judgment of the Court was delivered by

B. SUDERSHAN REDDY, J. 1. The appellant has
preferred this appeal under Section 379 of the Code of
E Criminal Procedure read with provisions of the Supreme Court
(Enlargement of Criminal Appellate Jurisdiction) Act, 1970
impugning the judgment and order of the Madurai Bench of
· Madras High Court in Criminal Appeal (MD) No·. 279 of 2005
whereby the High Court rev.~rsed the judgment of acquittal
F against the appellant, who w~s tried along with seven other co-
accused, recorded by the Additional Sessions Judge, (Fast
Track No. 2) Trichirapalli in Sessions Case No. 149 of 2004.
The High Court accordingly convicted the appellant for the
offence punishable under Section 302 read with 34 of the
G Indian Penal Code (IPC) and sentenced to undergo
impris~mment for life.

2. The prosecution case, in brief, is that Venkatesan -,;. +
Seshastripuram (the deceased) was living together with his wife
Sripriya {PW-1 ), mother P'admaja (PW-2) and other family
H members at No. 15/1A, Seahadri Road, Srirangam. The
ARUN v. STATE BY INSPECTOR OF POLICE, TAMIL 285
NADU [B. SUDERSHAN REDDY, J.]
deceased was in the business of pharmaceuticals. On A
~-)( 22.10.2003, at about 8.45 p.m. the deceased came back to
his house from the work in drenched condition. He took out the
cash from his shirt pocket, kept the same on the sofa and went
to the computer room and after changing clothes took his meal.
After having food the deceased along with his wife (PW-1) and B
mother (PW-2) were watching television programme. At that
time two men came and stood at the entrance of the house.
The deceased got up from his chair and moved towards them
~'t
asking as to why they have entered the house. Immediately the
person who was standing to the right of P.W. 1 shot the c
deceased with the gun. The deceased fell down on the floor.
>'
Thereafter, the two men ran away. P.W. 1 and P.W. 2 raised
hue and cry. P.W.1 went to her senior father-in-law's house and
informed Vamsidhar (PW-3) about the incident. P.W. 3
immediately with the help of P.W. 1 took the deceased to D
Srirangam Dhanvandhri Hospital. Doctor Murali (PW-17) gave
first aid treatment to the deceased and having regard to the
.,. grievous nature of injuries advised to take the victim to the
Kavery Medical Centre for further treatment. The victim was
accordingly taken to the Kavery Medical Centre. PW 3
informed the incident to the Srirangam Police Station over E
phone. Sub-inspector Bharth Srinivasan (PW-25) attached to
Srirangam Police Station based on the complaint of Sripriya
(PW-1) issued first information report and registered a case
in crime No. 724 of 2003 under Sections 452, 307 IPC and
F
,. ').-
Section 3 read with 25 of the Indian Arms Act.

3. After completion of the investigation, the police filed
charge sheet under Sections 120-B, 398, 449, 302/34 IPC and
section 3 read with 25 (1-B) (a) of the Indian Arms Act against
the appellant and seven other co-accused. The prosecution in G
all examined 26 witnesses (PW-1 to PW-26) and got marked -
......, 36 documents in evidence. The prosecution also produced
-ii- material objects which were marked as M.O. 1 to 26. The
_,
1.

statement of the accused appellant under Section 313 Cr.P.C.
was recorded in which he abjured the guilt and claimed trial. H
286 SUPREME COURT REPORTS
•
[2008] 17 S.C.R.
e
.....
"'
A 4. It may also be noted that according to the prosecution,
'
there was a conspiracy amongst A-1 to A-8 and pursuant to )L _,

the same the appellant (A-5) and A-4 attempted to commit
rob~ery and in furtherance of their common intention A-4 shot
the deceased. '

B
5. The learned Sessions Judge upon appreciation of
evidence available on record found A-4 guilty of the offence
punishable under Section 302 IPC and the High Court
confirmed the same in appeal. He did not prefer any further r~
appeal before this Court. So .far as the appellant is concerned,
c the Sessions Judge found him guilty of the offences punishable
under Section 398 and 457(1) 1PC and found him not guilty of
1

,....
'-
the charge under Section 120:-B. 449, 302 read with 34 IPC
as well as under Section 3 read with 25 (1-B) (a) of the Indian
Arms Act. Rest of the accused-were acquitted of all the
D charges. The State as well as the appellant preferred appeals
against the verdict of the Ses~ions Judge.
..i.:-··
6. Hence, this appeal by the appellant challenging the
correctness of the judgment of the High Court convicting him
E for the offence punishable und~r Section 302 read with 34 IPC.
· 7. Shri S. B. Sanyal, learned senior counsel appearing for
the appellant submitted the Hidh Court committed serious error
in reversing the well considered judgment of the Sessions
Court without properly appreciating the evidence available on
F record. There is no specific allegation as such made against
the appellant or any evidence to establish that any criminal act -< ~ '
was done by him in furtherance of common intention. There
being total absence of evidenee the conviction of the appellant
with the aid of Section 34 is unsustainabie. The learned senior
1

G counsel further submitted that there is no evidence of any pre-
meditation between appellant and A-4 and therefore, the
appellant cannot be convicted under Section 302 with the aid ~"'"- /!+-
of Section 34 IPC. It was submitted that the High Court
committed a serious error in ~oming to the conclusion that the •
H murder was the intention of both the appellant as well as A-4
ARUN v. STATE BY INSPECTOR OF POLICE, TAMIL 287
NADU [B. SUDERSHAN REDDY, J.]
to enter into the premises of the deceased. The submission was A
.._>(
that this view taken by the High Court is totally contrary to the
case set up by the prosecution. The learned counsel further
submitted that the High Court all together made out a different
case contrary to the prosecution story of robbery to enter into
the house. The High Court without any evidence found that the B
appellant along with A-4 trespassed into the house of the
deceased with an intention to kill the deceased.
~)
8. The learned counsel for the State supported the
judgment of the High court.
c
_.., 9. We have considered the submissions made during the
course of hearing of the appeal and perused the evidence
available on record.

10. Before we proceed to deal with the submissions it may D
be necessary to recapitulate the findings of the High Court that
... -,._' appellant did not enter the house of the deceased to commit
robbery and accordingly reversed the findings of the trial court.
The State did not prefer any further appeal so far as that finding
recorded by the High Court is concerned.
E
11. The High Court held that even though pre-meditation
between the appellant and A-4 has not been proved but the
very fact, the appellant entered the premises along with A-4
armed with pistol itself establishes that he entered the premises
... ?-
in furtherance of common intention to murder the deceased . . F

. 12. In the circumstances, two questions arise for our
consideration, namely: whether the appellant entered the
premises armed along with A-4, who kllled the deceased?
Secondly, even if he entered the premises armed, will that by G
itself establish common intention to commit murder?

-
13. There are two eye witnesses to the occurrence. P.W.
1 is none other than the wife of the deceased. She stated in
hepevidence that she along with her husband and mother-in-
law after finishing her evening meal was watching Television in H
288 SUPREME COURT REPORTS [2008] 17 S.C.R.

A the house. At that time A-4 and A-5 (later identified) havjng
-
entered the house stood at the entrance. The deceased on
seeing both of them moved towards them asking them as to
what they wanted and immediately A-4 shot her husband with
a pistol in his hand. The bullet injured on the left side rib area.
B Thereafter both the appellant an'd A-4 fled away from the scene
of occurrence·. This is what she stated even in the first
information report.

14. PW-2 while narrating the incident more or less gave
r-
C the same version but however, stated that both the appellant
as well as A-4 were carrying pistols. But in the cross-
examination she expressed h$r ignorance to whether both of
themwere carrying lethal weapons.

15. PW-26, the Investigating Officer in his evidence
D 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 i~ becomes highly doubtful as to
whether the appellant herein was also carrying. a pistol and
entered into the house of the'deceased.
E
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
F 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 ~heir common intention to kill the
deceased. That is not the case of the prosecution.

G 17. The case of the prosecution was that the appella_nt
along with A-4 with an intention to commit the dacoity had
trespassed into the house qf 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
H grievous injuries leading to his ultimate death. There is no
ARUN v. STATE BY INSPECTOR OF POLICE, TAMIL 289
NADU [B. SUDERSHAN REDDY, J.]

allegati.on against the appellant that he along with A-4 A
. ___. 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.
B
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-
r~
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
c
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 D
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 E
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 F
_,,. 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
G
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
-I
,
of PW-1 and Investigating Officer, PW-26 do not support the
H
SUPREME COURT REPORTS [2008] 17 S.C.R.
e
290
...
~

A 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
B
any evidence available .on record that a common intention
developed at the spur of moment to commit the offence of
murder?. 1"~

21. In the present case, the appellant alone was charged
c 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 pf evidence provides that when a criminal act is done by
several persons in furtherance of the common intention of all,
D 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 x---
commission of criminal act was done in furtherance of common
intention of, all at a prior concert. However, it is not required for
E 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 ca~e. the question is whether the
appellant shared any common i,ntention and if so, with whom?
Neither there is any charge nor evidence against A-5 that he
F 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
G 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
1
common intention. There is no evidence that there was a prior ""'

H
ARUN v. STATE BY INSPECTOR OF POLICE, TAMIL 291
NADU, [B. SUDERSHAN REDDY, J.]
meeting of mind developed at the spur of moment and A-4 shot A
... .,,, the deceased in furtherance of such common intention resul~ing
.... 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
9,
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 infere~ce could be drawn on the
proven facts that he shared corT1mon intention with A-4 to
commit the offence of murder. c
I

23. It is well established that commission of a criminal act
by several persons in furtherance bf the common intention of
all pre-supposes a prior meeting of find. The classic statement
of law is to be found in Pandurang, Tukia and Bhillia v. The D
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 fµrtherance of the common E
intention of them a: Mahbub Shah v. King-Emperor
[(1945) LR. 72 I.A. 148, 153, 154]. Accordingly there must
have been a prior meeting of ri'linds. Several persons can
simultaneously attack a man and each can have the same
intention, namely the intention to kill, and each can F,
)r•
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
1

pre-arranged plan. In a case like that, each would be
1

individually liable for whatever injury he caused but none G'
1

could be vicariously convicted for the act of any of the
,. }-
1

others; and if the prosecution cannot prove that his
separate blow was a fatal one he cannot be convicted of
the murder however clearly ari intention to kill could be
proved in his case: Barendra Kumar Ghosh v. King H
\

292 SUPREME COURT REPORTS [2008) 17 S.C.R.

A 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." ·
B
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 and1 they, either by their words
or their acts, indicate their assent to him and join him in
c the assault. There is then the necessary meeting of the
minds. There is a pre-arranged plan however· hastily
formed and rudely ~onceived. But pre-arrangement there
1

must be and premediatated c,oncert. It is not enough, as
in the l~tter Privy Council case, to have the same intention
D independently of each other, e.g., the intention to rescue
another and, if necessary, to ~ill those w~o oppose".

24. In the present case, ther~ is no evidence of any prior
meeting of minds. We know nothing of what they said or did
E 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't.he deceased with the pistol
in his hand. Obviously, this was an jmpulsive act of A-4 and both
the courts rightly found that he was guilty for the offence of
F committing murder of the deceased punishable under Section
302 IPC but the High Court commi~ed a serious error in holding
the appellant vicari~usly liable for the criminal act of A-4.
1

It is nowhere suggested that appellant indulged in any overt
or covert act as such based on which any inference of common
G intention could be drawn.

25. Section 34 is only a rule of evidence and does not --+ .,
create a substantive offence. In Barendra f<11mar Ghosh v. King
Emperor, AIR 1925 PC 1, the Privy Council has pointed out:
H
ARUN v. STATE BY INSPECTOR OF POLICE, TAMIL 293
NADU [B. SUDERSHAN REDDY, J.]
'

"Section 34 deals with doin~ of separate acts, similar or A
"->I'
diverse by several persons, 1if all are done in furtherance
.- of a common intention, each:,, person is liable for the result
of them all, as if he had don~ them himself."
:
26. In Hardev Singh and another v. The State of Punjab
B
[(1975)3 sec 731)] this Court observed that "the common
• I

-intention must be to commit the p'articular crime, although the
....,.- actual crime may be committe~ 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 c
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. D.

'- ~. 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- E
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

... 'y--
an understanding may appear from the conduct of the
persons sought to be made vicariously liable for the act F
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 G
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
H
294 ·SUPREME COURT REPORTS [2008] 17 S.C.R.

A down that a person accompanying the principal culprit
!< ....
shares his intention in respect o( 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. Th'e intention of the principal
B offender and his companions to, deal with any person who
might intervene to stop the qua~rel 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
c 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 ofBihar [(1998)5 SCC
699] this Court in clear and categorical terms laid down· that
D "unless a common intention is established as a matter of
necessary inference from the proved circumstances, the
.le_.
accused persons will be liable for their individual act and not
for the act done by any other p~rson. For an inference of
common intention to be drawn for the purposes of Section 34,
E the evidence and the circumstances of the case should
establish, without any room for doµbt, that a meeting of minds
and a fusion of ideas had taken place amongst the different
aecused and in prosecution of it, the overt acts of the accused
persons flowed out as if in .obedience of the command of a
F single mind. If on the evidence, ~here 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
G
common intention can develop and manifest itself at the spur
of moment. But the question for consideration is, whether there 'f"'
-+
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
H
ARUN v: STATE BY INSPECTOR OF POLICE, TAMIL 295
NADU [8. SUDERSHAN REDDY, J.]

committed the murder of the deceased. The evidence of PW- A
,..._~, 1 and PW-2 does not suggest that any such common intention
developed on the spur of moment leading to the murder of
r
.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. B
30. In Suresh and anotherv. State of U.P. [(2001) 3 sec
673) this Court after referring to number of its earlier judgments
r'f 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, c
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 D.
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 E
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 ofcommon intention
shared by the appellant. In fact, neither there is any charge nor F
,, 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 G
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.
~

--r- 31. On considera_tion of the evidence and the material
H
296 SUPREME COURT REPO~TS [2008) 17 S.C.R.

A available on record and in the light of the legal principles
referred to hereinabove, it is clear that the accusations made Y-"'
against the appellant making him constructively liable for the
4;
criminal act of murder committed byA-4 with the aid of Section
34 IPC were not established. So far as the pres~nt appellant ·
B is concerned, there is no evidence whatsoever available on
record to show shafihg of any common intention.

32. We accordingly affirm the judgment of the trial court
acquitting the appellant of the offence punishable under Section Y-...
302 read with Section 34 IPC. Consequently, the judgment of
c the High Court convicting the appellanl 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
1

D 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
E 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
F 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 ..
G K.K.T. Appeal partly allowed.

'r'
-~

'
-<r