Common Intention | S. 34 IPC Not Attracted Sans Proving Prior Concert: Allahabad High Court Acquits Man In 1985 Murder Case

With this, a bench of Justice Siddharth and Justice Vinai Kumar Dwivedi set aside a 1989 judgment that convicted a man (appellant no. 2) for murder with the aid of Section 34 IPC.

"…for convicting [the accused-appellant] under Section 302 IPC with the help of Section 34 IPC, there must be a clear and definite finding based on cogent evidence available on record that appellant no. 2, Brij Raj Singh (appellant) had prior concert with appellant no. 1, Brijendra Singh for commission of the crime", the bench observed.

The bench was hearing a criminal appeal preferred by Brijendra Singh (appellant no. 1) and Brij Raj Singh (appellant no. 2) against the 1989 order of the Special Additional Sessions Judge, Pilibhit.

Since the appellant no. 1 (Brijendra Singh) passed away during the pendency of the appeal, the bench dealt with the matter solely in respect of the surviving appellant, Brij Raj Singh.

As per the prosecution's case, the informant filed a written report alleging that on a night in June 1985, Brijendra Singh, who was having a dispute with the deceased over an agricultural land, entered the house of the deceased (Bhuri Singh) along with his friend, Brij Raj Singh (surviving appellant).

It was alleged that both were armed with illegal guns and Brij Raj Singh aimed his weapon at him and asked the appellant no. 1 to kill the deceased. Immediately thereafter, Brijendra Singh fired a fatal shot at the deceased.

Challenging the conviction, the counsel for the accused-appellant argued that the prosecution had assigned the surviving appellant only an ornamental role of exhortation and that he did not fire the shot.

It was also contended that the appellant had no motive and there was no evidence of prior concert to commit the crime.

The state, on the other hand, submitted that from the evidence of the prosecution witnesses, including informant Surat Singh (PW-1), the presence of the surviving appellant at the place of occurrence is clearly proved, and it was also established that he exhorted appellant no. 1.

Against this backdrop, the bench took into account the evidence put on record and found that the informant's testimony did not contain a single word suggesting any motive that would have impelled or forced the surviving appellant to assist in the murder.

The bench did not find any material on record to establish that the surviving appellant had prior concert with appellant no. 1 for the commission of the alleged offence.

In this regard, the High Court relied heavily on the Supreme Court's 1963 Judgment in Krishna Govind Patil v. State of Maharashtra wherein it was observed that Section 34 IPC implies a pre-arranged plan and the criminal act must be done pursuant to it.

The High Court observed that the trial court had incorrectly held the surviving appellant guilty without properly discussing these essential elements of pre-planning, premeditation and prior concert.

Thus, concluding that the surviving appellant's presence and involvement in the crime were highly suspicious and doubtful, the HC set aside the trial court's judgment and allowed the criminal appeal.