IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.            OF 2008 (Arising out of SLP (Crl.) No. 7491 of 2007)

Shashi Mohan ..Appellant

Versus

State of M.P. ..Respondent

J U D G M E N T

Dr. ARIJIT PASAYAT, J.

1. Leave granted.  

2. Challenge  in  this  appeal  is  to  the  judgment  of  the

Division Bench of the Madhya Pradesh High Court, Jabalpur

Bench.   Three  persons,  namely,  Rameshwardayal,

Shashimohan and Revimohan hereinafter described as A1, 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,  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

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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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