Mere presence and participation in another assault cannot establish common intention for murder under Section 34 IPC.

On 24 May 1987, Chhuttan, Gaya Prasad and Chhote went to Tara Chand’s muskmelon field, where Sheo Ram, Puttan, Tara Chand and the appellant Harish Chandra were allegedly present.

Following an altercation over alleged theft of slippers, Sheo Ram fired a gunshot at Chhuttan, while Puttan and the appellant allegedly assaulted Gaya Prasad and Chhote with a lathi and stick respectively.

An FIR was lodged the following morning under Sections 307/323 IPC against all four accused.

Chhuttan’s statement was recorded under Section 161 Cr.P.C. on 25 May 1987 and was subsequently treated by the trial court as a dying declaration.

Chhuttan died on 27 May 1987, whereafter Section 302 IPC was added.

The medical evidence established that Chhuttan had sustained firearm injuries, whereas Chhote had only one simple contusion allegedly caused by a lathi; Gaya Prasad’s alleged injuries were not proved because his injury report was unavailable.

The appellant was tried separately after initially absconding and was convicted under Sections 302 and 323 read with Section 34 IPC, receiving life imprisonment for murder and six months’ rigorous imprisonment for the Section 323 offence.

The co-accused Puttan and Tara Chand, previously convicted under Section 302 read with Section 34 IPC, were subsequently acquitted by the High Court.

Whether the appellant’s presence at the place of occurrence, possession of a stick, and alleged assault upon Gaya Prasad and Chhote established that he shared a common intention with Sheo Ram to murder Chhuttan under Section 302 read with Section 34 IPC?

Whether the prosecution proved the appellant’s participation in causing the injuries punishable under Section 323 IPC, either directly or with the aid of Section 34 IPC?

Whether the circumstances relied upon by the prosecution—presence, familial relationship, alleged motive and participation in the same occurrence—were sufficient to establish the requisite common intention?

The Court applied Sections 302 and 323 IPC read with Section 34 IPC.

Section 34 requires proof of a common intention relating to the particular offence and participation by the accused in furtherance of that intention; mere presence, association, or participation in the same transaction is insufficient.

Relying on Mahbub Shah v. King Emperor, AIR 1945 PC 118, the Court held that common intention must be a necessary inference from proved circumstances and cannot be based on suspicion or mere association.

Under Jasdeep Singh alias Jassu v. State of Punjab, (2022) 2 SCC 545, the prosecution must establish common intention through clear, cogent and definite evidence, with the burden remaining on the prosecution throughout.

Applying Amrik Singh v. State of Punjab, (1972) 4 SCC (N) 42; 1972 Cri LJ 465, the Court held that the accused’s act must aid, assist or facilitate the commission of the particular offence for which constructive liability is imposed; participation in one criminal act does not automatically create liability for another offence.

The prosecution case attributed the fatal firearm injury exclusively to Sheo Ram, while the appellant was alleged only to have assaulted Gaya Prasad and Chhote with a stick.

The medical evidence ruled out the possibility that the deceased’s injuries were caused by a stick or lathi, and there was no allegation that the appellant assaulted Chhuttan, exhorted Sheo Ram to fire, restrained assistance to Chhuttan, or otherwise facilitated the murder.

The appellant’s alleged conduct during the ten-to-fifteen-minute assault on the other witnesses did not demonstrate participation in furtherance of an intention to kill Chhuttan.

His presence before the arrival of the deceased, relationship with Sheo Ram, and the alleged motives concerning slippers and Gaon Sabha land could establish association or the immediate cause of the quarrel, but did not prove a prior meeting of minds or common intention to commit murder.

The Section 323 conviction was also unsupported: Gaya Prasad’s injuries were not proved, and Chhote’s proved contusion was attributed medically to a lathi, whereas the appellant was allegedly armed with a stick; no reliable evidence connected the appellant with that injury.

Accordingly, the essential link between the appellant’s alleged acts and either charged offence was absent.

It also failed to prove the appellant’s participation in the Section 323 offence.

The appeal was therefore allowed; the judgment dated 25 January 1992 was set aside, and the appellant was acquitted of Sections 302/34 and 323/34 IPC.

As the appellant was on bail, he was not required to surrender; his bail bonds were cancelled and the sureties discharged.