Mere presence, relationship, and motive cannot establish common intention under Section 34 IPC.

During the intervening night of 14/15 February 1986, Surali was shot dead while sleeping at his tubewell.

His wife, Komali (PW-1), lodged the FIR at 7:30 a.m., alleging that Raj Deo, Bharat, Bhola and Dhanni had fled from the scene after the shooting.

The post-mortem disclosed a fatal gunshot injury behind the deceased’s right ear.

A pistol and two live cartridges were allegedly recovered from Bharat on 17 February 1986; the arrest-cum-recovery memo also recorded alleged confessions by the accused.

The Sessions Court convicted Raj Deo and Bharat under Section 302 read with Section 34 IPC and sentenced them to life imprisonment, while acquitting Bhola and Dhanni.

The appeal abated insofar as it concerned Bharat, and therefore survived only in respect of Raj Deo.

Whether the testimony of PW-1 and PW-2 was sufficiently consistent and reliable to establish that Raj Deo was present at the tubewell and fled after the murder.

Whether the pistol recovery and the confessional statements recorded in the arrest-cum-recovery memo were legally admissible and connected with the offence.

Whether the prosecution established the common intention necessary to impose constructive liability on Raj Deo under Section 302 read with Section 34 IPC.

Whether the failure to put material incriminating circumstances to the accused under Section 313 Cr.P.C. prejudiced the defence and affected the sustainability of the conviction.

Whether Raj Deo’s conviction could be sustained when the evidence against him was materially similar to that against Bhola and Dhanni, who had been acquitted.

The Court applied Section 302 read with Section 34 IPC, holding that constructive liability requires proof of participation in the criminal act pursuant to a shared common intention; mere presence, relationship or motive is insufficient.

Under Sections 25 and 27 of the Evidence Act, a confession made to a police officer or while in police custody is inadmissible, except to the limited extent that information leads to the discovery of a relevant fact; a recovery from an accused’s possession at arrest, without discovery in consequence of information supplied by him, does not attract Section 27.

The Court also applied Section 313 Cr.P.C., requiring every material incriminating circumstance relied upon against an accused to be specifically put to him, so that he has a fair opportunity to explain it.

The Court further treated previous enmity as a double-edged circumstance, capable of furnishing a motive for the crime as well as a motive for false implication.

The Court found material contradictions in the evidence of PW-1 and PW-2 regarding whether the deceased was alive when they reached the tubewell, the direction in which the accused fled, the manner in which the accused were seen, and whether the door was bolted from inside.

Given the distance of approximately fifty paces, the occurrence at about 3:00 a.m., and the apparent absence of any struggle or delay by the assailants, their claim of having witnessed the accused fleeing was considered doubtful.

Exhibit Ka-5 was legally insufficient because the pistol was recovered from Bharat at the time of arrest and not pursuant to information leading to discovery; the alleged police-custody confessions were barred by Section 25 of the Evidence Act.

The prosecution also failed to connect the recovered pistol with the empty cartridge found near the tubewell.

As against Raj Deo, there was no independent evidence of participation, overt act, pre-arranged plan or shared intention.

His relationship with Bharat and the alleged motive, which primarily concerned Bharat and the other co-accused, could not establish common intention under Section 34 IPC.

The omission to put the alleged weapon-related circumstance, motive and recovery to the accused under Section 313 Cr.P.C. further caused prejudice to the defence.

Since the evidence against Raj Deo did not materially differ from that against the acquitted co-accused, the conviction lacked a legally sustainable basis.

The judgment and order dated 11 January 1989 were set aside insofar as they convicted and sentenced Raj Deo, and he was acquitted of the charge.

As he was in custody pursuant to a non-bailable warrant issued during the appeal, the Court directed that he be released forthwith unless required in another case.

The pending bail application was disposed of as infructuous, and the appeal was allowed.