Shashi Mohan Vs.
State of M.P.  INSC 1138 (15 July 2008)
JURISDICTION CRIMINAL APPEAL NO. OF 2008 (Arising out of SLP (Crl.) No. 7491 of
2007) Shashi Mohan ..Appellant Versus State of M.P. ..Respondent
Dr. ARIJIT PASAYAT,
in this appeal is to the judgment of the Division Bench of the Madhya Pradesh
High Court, Jabalpur Bench. Three persons, namely, Rameshwardayal, Shashimohan
and Revimohan hereinafter described as A1, A2 and A3 faced trial for alleged
commission of offence punishable under Sections 302 read with Section 34 of the
Indian Penal Code, 1860 (in short the `IPC'). Additional Sessions Judge,
Morena, found them guilty and sentenced each to life imprisonment. During the
pendency of the appeal before the High Court A1 died and, therefore, the appeal
was held to have abated so far as A1 is concerned. The present appeal is by A2.
A1 and A2 were convicted and sentenced under Section 302 read with Section 34
IPC while A3 was found guilty of offence punishable under Section 302 IPC.
version as unfolded during trial is as follows:
On 3.3.92 at 9.30
a.m. on a road from Pipalwali Mata to Rui Ki Mandi and ahead of a Chauraha in
Morena one Rakesh S/o Ram Singh (hereinafter referred to as `deceased') was
shot dead by A3 who pumped into him three gun shots resulting in instant death
of said Rakesh. There reportedly existed previous enmity between the family of
A1 and of Ram Singh father of the deceased. A1 and Ram Singh are real brother.
The incident was
reported to Police at Police Station Kotwali at 9.40 a.m. by Radheyshyam (PW1),
brother of the deceased Rakesh. FIR (Ex.P/1) was recorded and the investigation
was set in motion by Registering a crime at Sr. No.144/92 under Section 302/34
IPC. After completion of investigation, charge sheet was filed. Accused persons
abjured guilt and claimed trial.
order to establish its accusations, the prosecution examined 12 witnesses. PWs,
1, 2 and 3 were stated to be eyewitnesses. In order to establish its plea of
false implication DW1 was examined to prove the presence of A3 at a different
place. Trial Court found the evidence to be cogent and recorded conviction as
the High Court the primary stand of the appellant was that so far as he is
concerned, Section 34 IPC has no application. The High Court did not accept
support of the appeal, learned counsel for the appellant submitted that the
High Court has categorically noted that none of the eye witnesses stated that
A2, the present appellant has pre-mediated with A1 and A3 before the offence
was committed. The witnesses admitted that the appellant was not armed with
weapon and no overt act was attributed to him. Further, he was coming from a different
direction and, therefore, the question of his sharing the common intention was
counsel for the respondent, on the other hand, submitted that though A2 was not
armed with and was coming from a different direction, his presence has been
established. He being the son of A1 and the brother of A3, the main assailant
the ingredients of Section 34 have been clearly established.
the provisions of Section 34 IPC the essence of the liability is to be found in
the existence of a common intention animating the accused leading to the doing
of a criminal act in furtherance of such intention. As a result of the
application of principles enunciated in Section 34, when an accused is
convicted under Section 302 read with Section 34, in law it means that the
accused is liable for the act which caused death of the deceased in the same
manner as if it was done by him alone. The provision is intended to meet a case
in which it may be difficult to distinguish between acts of individual members
of a party who act in furtherance of the common intention of all or to prove
exactly what part was taken by each of them. As was observed in Ch. Pulla Reddy
and Ors. v. State of Andhra Pradesh (AIR 1993 SC 1899), Section 34 is
applicable even if no injury has been caused by the particular accused himself.
For applying Section 34 it is not necessary to show some overt act on the part
of the accused.
the background facts are considered in the light of legal principles set out
above, the position is clear that the accusations were not established so far
as the present appellant is concerned. No evidence was led to show sharing of
common intention. The appeal deserves to be allowed which we direct. He be set
at liberty forthwith unless required to be in custody in connection with any
ARIJIT PASAYAT) ...............................J.