IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 1657 OF 2007   

Arun ……Appellant

Versus

State  by Inspector of Police,  Tamil Nadu. ……Respondent

J U D G M E N T

B.Sudershan Reddy, J.

1. The appellant has preferred this appeal under Section

379 of the Code of 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 reversed the

judgment of acquittal against the appellant, who was 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 Indian Penal Code (IPC) and

sentenced to undergo imprisonment for life.  

2. The  prosecution  case,  in  brief,  is  that  Venkatesan

Seshastripuram (the deceased) was living together with his

wife  Sripriya  (PW-1),  mother  Padmaja  (PW-2)  and  other

family members at No. 15/1A, Seahadri  Road, Srirangam.

The deceased was in the business of pharmaceuticals.  On

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 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  asking  as  to  why  they  have

entered  the  house.  Immediately  the  person  who  was

standing to the right of P.W. 1 shot the 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  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

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 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 all examined 26 witnesses (PW-1 to PW-26)

and got marked 36 documents in evidence.  The prosecution

also produced material objects which were marked as  M.O.

1  to   26.  The  statement  of  the  accused  appellant  under

Section 313 Cr.P.C. was recorded in which he abjured the

guilt and claimed trial.   

4. It  may  also  be  noted  that  according  to  the

prosecution, there was a conspiracy amongst A-1 to A-8

and pursuant to the same the appellant (A-5) and A-4

attempted to commit robbery and in furtherance of their

common intention A-4 shot the deceased.

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

appeal  before  this  Court.  So  far  as  the  appellant  is

concerned,  the  Sessions  Judge  found  him  guilty  of  the

offences punishable under Section  398 and 457 (1) IPC and

found him not guilty of 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 charges.  The State as well

as the appellant preferred appeals against the verdict of the

Sessions Judge.  

6. Hence,  this  appeal  by  the  appellant  challenging  the

correctness  of  the  judgment  of  the  High Court  convicting

him for the offence punishable under Section 302 read with

34 IPC.

7.  Shri S. B. Sanyal, learned senior counsel appearing for

the appellant submitted the High Court committed serious

error  in  reversing  the  well  considered  judgment  of  the

Sessions Court  without properly  appreciating the evidence

available on 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  evidence  the

conviction  of  the  appellant  with  the  aid  of  Section  34  is

unsustainable.  The learned senior 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 coming to the conclusion that the murder was the

intention of both the appellant as well as A-4 to enter into

the premises of the deceased.  The submission was 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 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.  

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

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.

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.  

12. In  the  circumstances,  two  questions  arise  for  our

consideration,  namely:  whether  the  appellant  entered  the

premises armed along with A-4, who killed the deceased?

Secondly, even if he entered the premises armed, will that

by 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

her evidence that she along with her husband and mother-

in-law  after  finishing  her  evening  meal  was  watching

Television  in  the  house.   At  that  time  A-4 and  A-5(later

identified) having 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.  Thereafter  both  the

appellant and 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

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 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.