Mere presence or weapon possession cannot establish Section 34 liability without proven participation in common intention.

During the intervening night of 25/26 September 1986, Om Prakash was allegedly shot while sleeping near his baithak in Bijnor. The prosecution alleged that Keval, Dal Chandra and Gaj Ram were present: Keval allegedly fired the shot, Dal Chandra allegedly carried a country-made pistol, and Gaj Ram allegedly flashed a torch. The deceased sustained a firearm injury to his left thigh and died thereafter. An FIR under Section 302 IPC was registered at 2:45 a.m. on 26 September 1986. The Sessions Court convicted all three accused under Section 302 read with Section 34 IPC and sentenced them to life imprisonment.

The appeal abated in respect of appellant nos. 1 and 3 following their deaths and survived only against appellant no. 2, Dal Chandra. The prosecution principally relied on PW-1, the deceased’s son, and PW-4, the deceased’s brother. PW-2 did not establish that he had witnessed the firing, while PW-3 turned hostile. The record disclosed inconsistencies concerning the witnesses’ locations, the source of light, the preparation of the written report, and the interval between the injury and death.

Whether the testimony of PW-1 and PW-4 was sufficiently reliable to prove beyond reasonable doubt that appellant no. 2 was present and participated in the murder?

Whether appellant no. 2’s alleged presence at the scene, possession of a country-made pistol and association with the other accused established participation in the criminal act and the common intention required for liability under Section 34 IPC?

Whether the absence of a specific motive, overt act or conduct connecting appellant no. 2 with the murder was material while determining the existence of common intention?

The Court applied Section 302 IPC concerning murder and Section 34 IPC concerning constructive liability for a criminal act done by several persons in furtherance of their common intention.

Under Suresh v. State of U.P., (2001) 3 SCC 673, Section 34 requires both participation in the criminal act and the existence of a common intention; mere mental concurrence or presence is insufficient.

Ram Tahal v. State of U.P., (1972) 1 SCC 136 requires prior concert or a pre-arranged plan, inferable from the totality of the circumstances.

Rangaswami v. State of T.N., 1989 Supp (1) SCC 686, Ram Lal Singh v. State of Haryana, 1992 Supp (2) SCC 746, and Chhotu v. State of Maharashtra, 1997 SCC (Cri) 1143 establish that mere presence, association or possession of a weapon does not, without more, prove common intention or participation.

Conversely, Mohan Singh v. State of Punjab, AIR 1963 SC 174 recognises that common intention may be inferred from coordinated conduct, shared motive and participation before, during and after the offence.

The Court also applied the principle that related or interested witnesses are not automatically unreliable but must be scrutinised with greater care, as stated in Dalip Singh v. State of Punjab, AIR 1953 SC 364, Raju v. State of T.N., (2012) 12 SCC 701, and Mohd. Jabbar Ali v. State of Assam, (2023) 19 SCC 672.

A site plan is not substantive evidence, but material inconsistencies between the site plan and the witnesses’ versions may affect credibility where the site plan was prepared on the witnesses’ instructions, as recognised in Shingara Singh v. State of Haryana, (2003) 12 SCC 758.

The Court found that the principal ocular evidence was materially doubtful. PW-4 gave inconsistent accounts of where he was sleeping and how he allegedly witnessed the firing; his claimed location was inconsistent with the site plan and with the Investigating Officer’s evidence.

The uncertainty regarding the lantern or Petromax, the doubtful recovery memo, and the inconsistency concerning preparation of the written report weakened PW-1’s account. The medical evidence also indicated that the thigh injury was not ordinarily fatal immediately and that the deceased may have survived for approximately two hours, contrary to the prosecution witnesses’ assertion that he died shortly after the firing; although not independently decisive, this evidence did not corroborate the already doubtful ocular version.

Independently, the Court held that appellant no. 2’s conviction under Section 34 could not stand. The shot was attributed exclusively to appellant no. 1; no overt act, further assault, firing, obstruction of rescue, or other conduct connecting appellant no. 2 with the murder was proved. No weapon was recovered from him and no ballistic evidence linked him to the injury.

The admitted enmity was principally between appellant nos. 1 and 3 and the prosecution witnesses, while no specific motive or dispute involving appellant no. 2 and the deceased was established. His relationship with appellant no. 3 and alleged presence with a weapon could not, by themselves, establish prior concert, participation or a shared intention to murder. The trial court had also failed to undertake a separate assessment of appellant no. 2’s individual role and had mechanically invoked Section 34.

The conviction and sentence of appellant no. 2 under Section 302 read with Section 34 IPC were set aside, and he was acquitted by extending the benefit of doubt. As he was on bail, he was not required to surrender; his bail bonds were cancelled and his sureties discharged.