Holding

The conviction of the appellant under Section 302 read with Section 34 IPC is not justified as no common intention was proved.

Summary

The case involved three accused (A1, A2, A3) charged with murder under Section 302 read with Section 34 of the Indian Penal Code. A3 fired the fatal shots, while A2 was unarmed, did not perform any overt act, and no evidence linked him to a common intention with the others. Both the trial court and the Madhya Pradesh High Court convicted A2 under Section 302 r/w Section 34, sentencing him to life imprisonment. On appeal, the Supreme Court examined the scope of Section 34, emphasizing that liability hinges on proof of a shared common intention, not merely presence at the scene. Finding no evidence of such intention or any overt act by A2, the Court held the conviction unjustified and allowed the appeal, ordering his release.

Issues considered

Whether Section 34 IPC can be invoked to convict an accused who did not commit an overt act and for whom no common intention is proved.
Whether the prosecution established the requisite common intention among the accused for a conviction under Section 302 read with Section 34.

Legislation cited

Indian Penal Code, 1860s. 302, s. 34

Subjects

MurderSection 34 IPCCommon intentionConspiracyCriminal lawEvidenceOvert actConviction

Judgment

(2008] 10 S.C.R. 978
r

A SHASHI MOHAN
v.
,..
STATE OF M.P.
(Criminal Appeal No. 1093 of 2008)
JULY 15, 2008
B
[DR. ARIJIT PASAYAT AND P. SATHASIVAM, JJ.]
-
Penal Code, 1860:
•
s. 302 rlw s. 34 - Murder - Prosecution under alongwith
c two other accused -Accused not armed with any weapon - No
overt act attributed to him - Conviction by courts below - On
r
appeal, held: Conviction not justified - In the facts of the case
accusation not proved against the accused - No evidence led
to show his sharing of common intention with other accused.
D
s. 34 - Common intention - Invocation- Scope of- Held:
.,
The aid of the provision is invoked when it is difficult to distin-
guish between acts of individual members of a party acting in
furtherance of common intention - For invocation of the pro-
vision it is not necessary to show some overt act on the part of
E
the accused.
Appellant-accused (A2) along with two accused A1
and A3 was prosecuted u/s 302 r/w s. 34 IPC. There were
three witnesses to the incident. The motive was alleged ~

F to be enmity between the parties. Trial Court convicted all 'll

the accused u/s 302 r/w s. 34 IPC. During pendency of
appeal before High Court, A-1 died and his appeal abated.
A-2 (appellant) was convicted u/s 302 r/w s. 34 while A-3
was convicted under s. 302.
G In appeal to this court, appellant-accused No.2 con-
tended that his conviction was not justified by aid of s.34 I-
as his pre-meditation with other accused was not proved ,-~

and admittedly he was neither armed nor any overt act
was attributed to him.
H 978
SHASHI MOHAN v. STATE OF M.P. 979

Allowing the appeal, the Court A
HELD: 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 8
Section 34, when an accused is convicted under Section·.
302 r/w 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 pro-
vision is intended to meet a case in which it may be diffi- C
cult 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.
Section 34 is applicable even if no injury has been caused
by the particular accused himself. For applying Section D
34 it is not necessary to &how some overt act on the part
of the accused. However, in the background facts of the
present case, the accusations were not established so
r, far as the present appellant is concerned. No evidence
was led to show sharing of common intention. [Paras 8 E
and 9] [981-E,F,G & H; 982-A]
Ch. Pu/la Reddy and Ors. v. State of Andhra Pradesh
AIR 1993 SC 1899 - referred to .
., '
CRIMINALAPPELLATE JURISDICTION: Criminal Appeal F
No. 1093 of 2008
From the final Judgment and Order dated 28.9.2007 of
the High Court of Madhya Pradesh, Bench at Gwalior in Crl.
Appeal No. 83 of 1993
G
I\ ~ Nagendra Rai, P.H. Parekh, Jetendra Singh and S.K.
t Sabharwal for the Appellant.
Govind Goel, C.D. Singh, Ram Naresh Yadav, Merusagar
Samanta Ray and Sunny Choudhary for the Respondent.
H
980 SUPREME COURT REPORTS [2008] 10 S.C.R. )'-

A The Judgment of the Court was delivered by
Dr. ARIJIT PASAYAT, J. 1. Leave granted.
2. Challenge in this appeal is to the judgment of the Divi-
sion_Bench of the Madhya Pradesh High Court, Jabalpur Bench. ,,.
B Three persons, nameiy, Rameshwardayal, Shashimohan and ~•
Revimohan hereinafter described as A 1, A2 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, Mor~na, found them ~

c guilty and sentenced each to life imprisonment During the pen- '
dency of the appeal before the High Court A 1 died and, there-
fore, the appeal was held to have abated so far as A 1 is con- f
~
cerned. The present appeal is by A2. A1 and A2 were convicted
and· sentenced under Section 302 read with Section 34 IPC while t
D
A~ was found guilty ofoffence punishable u_nder Section 302 IPC. •
}-
3. Prosecution version as unfolded during trial is as fol-
lows: '
I
On 3.3.92 at.9.30 a.m. on a road from Pipalwali Mata to
r,
Rui Ki Mandi and ahead of a Chauraha in Morena one Rakesh
E
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 r~portedly existed previ-
ous enmity between the family of A 1 and of Ram Singh father of
the deceased. A 1 and Ram Singh are real brother. The incident 'te:
F was reported to Police at Police Station Kotwali at 9.40 a.m. by .--
Radheyshyam (PW1}, brother of the deceased Rakesh. FIR r
(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 i-
IPC. After completion of investigation, charge sheet was filed.
G 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
- .. ,'
. 1J

'
,
...

eyewitnesses. In order to estab!ish its plea of false implication
DW1 was examined to prove the presence of A3 at a different
·H
SHASHI MOHAN v. STATE OF M.P. 981
-~
[DR. ARIJIT PASAYAT, ]

place. Trial Court found the evidence to be cogent and recorded A
conviction as noted above.
5. ·Before the High Court the primary stand of the appel-
lant was that so far as he is concerned, Section 34 IPC has no
..., application. The High Court did not accept that plea .
B
6. In support of the appeal, learned counsel for the appel-
lant submitted that the High Court has categorically noted that
none of the eye witnesses stated thatA2, the present appellant
has pre-mediated with A 1 and A3 before the offence was com-
mitted. The witnesses admitted that the appellant was not armed c
with weapon and no overt act was attributed to him. Further, he
was coming from a different direction and, therefore, the ques-
tion 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 D
from a different direction, his presence has been established.
He being the son of A 1 and the brother of A3, the main assail-
ant 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
E
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 con-
•f victed under Section 302 read with Section 34, in law it means
that the accused is liable for the act which caused death of the F
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 G
'...,..._ observed in Ch. Pu/la Reddy and Ors.· v. State of Andhra
Pradesh (Al R 1993 SC 1899), Section 34 is applicable even if
\
~ no injury has been caused by the particular accused himself.
For applying Section 34 it is not necessary to show some overt
act on the part of the accused. H
982 SUPREME COURT REPORTS [2008] 10 S.C.R.

.,
A 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 appel-
lant is concerned. No evidence was led to show sharing of com-
mon intention. The appeal deserves to be allowed which we .,..,
B direct. He be set at liberty forthwith unless required to be in cus-
tody in connection with any other case.
K.K.T. Appeal allowed.

I

t

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