2008 (12) TMI 829 - SC - Indian Laws

Summary

Issues Involved:
1. Whether the appellant entered the premises armed along with A-4, who killed the deceased.
2. Whether the appellant's presence armed establishes common intention to commit murder.

Summary:

Issue 1: Whether the appellant entered the premises armed along with A-4, who killed the deceased.

The appellant challenged the High Court's judgment convicting him u/s 302 read with 34 IPC, reversing the trial court's acquittal. The prosecution alleged a conspiracy among A-1 to A-8, with the appellant (A-5) and A-4 attempting robbery, during which A-4 shot the deceased. The trial court found A-4 guilty of murder but acquitted the appellant of the murder charge, convicting him instead u/s 398 and 457(1) IPC. The High Court, however, convicted the appellant for murder, asserting he entered the premises with A-4 in furtherance of a common intention to murder the deceased. The appellant's counsel argued there was no evidence of pre-meditation or common intention to murder, and the High Court erred in its judgment. The Supreme Court noted the High Court's error in reversing the trial court's acquittal without sufficient evidence that the appellant was armed or shared a common intention to murder.

Issue 2: Whether the appellant's presence armed establishes common intention to commit murder.

The Supreme Court examined whether the appellant's presence with A-4, who committed the murder, established a common intention to murder. The court found no evidence of pre-meditation or a prior meeting of minds between the appellant and A-4. The prosecution's case was that the appellant and A-4 intended to commit dacoity, not murder. The trial court's acquittal of the appellant for murder was based on the lack of evidence of common intention. The Supreme Court emphasized that for u/s 34 IPC to apply, there must be evidence of a shared common intention to commit the specific crime. The court found no such evidence, noting that the appellant did not engage in any overt act indicating a common intention to murder. The court cited precedents emphasizing the need for clear evidence of common intention for vicarious liability under u/s 34 IPC. Consequently, the Supreme Court set aside the High Court's conviction of the appellant for murder but affirmed his conviction u/s 457(1) IPC, noting he had already served the sentence. The appeal was partly allowed, and the appellant was ordered to be released unless required in another case.