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TMI Blog2008 (12) TMI 829X X X X Extracts X X X X X X X X Extracts X X X X ..... sed) 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 havin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rly 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rrying 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 commi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fence 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 cove ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... evertheless, 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 premeditated 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 th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 1998CriLJ3611 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 amo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion 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 th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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