S. 34 IPC | Proof Of 'Prior Concert' Essential To Convict With Aid Of 'Common Intention': Allahabad High Court Acquits Man In 1987 Murder Case

A bench of Justice JJ Munir and Justice Vinai Kumar Dwivedi made these observations while acquitting the accused-appellant (Laddan) in a murder case dating back to 1987.

With this, the Court set aside a 1990 judgment by an Additional Sessions Judge, Allahabad, which had sentenced the appellant to life imprisonment.

The primary question before the Court was whether the convict, who was assigned the role of aerial firing, could have been convicted of murder without any concrete proof of premeditation by the main shooter.

According to the prosecution's case, the incident occurred on September 21, 1987, in Allahabad's Rajapur locality. The informant (Shakeel Ahmad) alleged that his brother (Deceased Nanhey) was murdered because he had an illicit relationship with the sister of the main accused, Shaheed.

The FIR claimed that Shaheed had shot at the deceased, and after a hue and cry was made by the witnesses, Rehmat and Laddan (appellant) fired shots in the air, and they ran away.

In 1990, the Trial Court convicted the main accused (Shaheed) under Section 302 IPC. The appellant-Laddan and one Rahmat were convicted under Section 302 read with Section 34 IPC.

Since both Shaheed and Rahmat passed away during the pendency of the appeal, the High Court dealt only with the appeal of appellant-Laddan.

The counsel for the appellant argued that he was falsely implicated on mere suspicion because he was a relative of someone in the locality and frequently visited the area, and it was admitted that he had enmity with the deceased and no relationship with the main accused.

It was also pointed out that the direct role of firing at the deceased was assigned to the accused-appellant Shaheed, but only one bullet was found by the IO from the place of occurrence, and no pellets, ticklis were recovered.

The State, however, contended that the informant and another eyewitness had proved Laddan's presence at the scene and his act of firing to intimidate the prosecution witness.

Against the backdrop of these submissions and considering the evidence on record, the bench found certain gaps in the prosecution's theory.

It noted that the IO had explicitly confirmed during cross-examination that only one bullet was found at the scene, and no other pellets, ticklis, or empty cartridges were recovered.

In view of IO's testimony, the bench noted that if at all the accused-appellant had fired a shot in the area, as is alleged by the prosecution, bullets and pellets would have surely been found at the place of occurrence or a nearby place of occurrence.

In view of this, the bench found his implication and involvement in the crime doubtful, as they were not corroborated by any oral or documentary evidence.

Observing that Laddan lacked any motive and was likely named mechanically on the basis of suspicion, the High Court referred to the Supreme Court's ruling in Sujit Biswas v. State of Assam, wherein it was held that suspicion, no matter how strong, cannot and must not be permitted to take the place of proof.

In view of this, the bench found that while convicting the accused with the aid of Section 34, the Trial Court had not considered the legal point that “without being cogent evidence adduced by the prosecution that there was a prearranged plan and criminal act pursuant to the prearranged plan, no person can be held liable for guilty with the aid of Section 34 IPC.”

"Apart from this for holding guilty to any person with the aid of Section 34 I.P.C., a definite conclusion by the Court should be given of this nature that the said person, who is accused for the commission of crime had a prior concert with one or more other persons named or unnamed for commission of the said offence", the bench further remarked.

Thus, concluding that there was absolutely no evidence of prior concert between Laddan and the main shooter, the High Court held that the 1990 conviction was without any evidence on the record.

The Court thus allowed the appeal and acquitted Laddan of all charges.