The main legal point established is that for joint liability under Section 34 of the Indian Penal Code, a pre-arranged common intention and participation in action must be proved, and mere participation in the crime with others is not sufficient to attribute common intention.

JUDGMENT :

INDIRA BANERJEE, J.

1. This appeal is against a judgment and order dated 5th November, 2008 passed by the High Court of Madhya Pradesh at Jabalpur, dismissing Criminal Appeal No. 1050 of 1994 filed by the appellant and upholding the judgment dated 26th August, 1994 passed by the Additional Sessions Judge, District Panna, Madhya Pradesh in Sessions Case No. 13/1993, inter-alia, convicting the accused appellant of offence under Section 307 read with Section 34 of the Indian Penal Code.

2. The accused appellant was tried by the Sessions Court, on charges under Section 307/34 of the Indian Penal Code, for attempt, with common intent along with the main accused Khilai, to murder the complainant and for instigating the said accused Khilai to fire at the complainant with a country made pistol, in furtherance of a common intent to kill the complainant.

3. In a nutshell, the case of the Prosecution is that, on 22nd October, 1992 at about 11.00 a.m. there was a quarrel between the accused appellant and the complainant, in which the said accused Khilai intervened. The said accused Khilai who had joined the accused appellant and the complainant, took out a country made pistol from the pocket of his trousers, pointed it towards the complainant and fired at the instigation of the accused appellant, who urged the said accused Khilai to kill the complainant. The complainant, therefore, sustained injuries on his forehead near his eye and on his lips and shoulder with splinters from the pistol and started bleeding. It is the further case of the Prosecution, that after the firing, the accused Khilai fled the scene of occurrence and the accused appellant followed him. Immediately thereafter, the complainant reported the incident at the Mohandra Chowki. The report was forwarded to the Simariya Police station where Crime No. 110/1992 was registered.

4. After investigation, Chargesheet was filed against the accused appellant and the main accused Khilai, both of whom pleaded ‘Not Guilty” and claimed to be tried. To establish the charges framed against the accused, the Prosecution examined 11 witnesses. The accused appellant did not examine any witness nor did the main accused, Khilai.

5. By a judgment dated 26th August, 1994, the Additional Sessions Judge, Panna held the accused appellant guilty of offence under Section 307/34 of the Indian Penal Code and the main accused Khilai guilty of offence under Section 307 of the Indian Penal Code. By an order of sentence passed on the same day the accused appellant was sentenced to undergo rigorous imprisonment for five years in addition to fine of Rs. 1000/-.

6. Being aggrieved by the aforesaid judgment of conviction and order of sentence, the accused appellant appealed to the High Court. The said appeal being Criminal Appeal No. 1050 of 1994 has been dismissed by the judgment and order impugned in this appeal.

7. The accused appellant, the main accused, Khilai and the complainant were all related. Sunder Lal, father of the main accused Khilai and uncle of the complainant, had given his share of land to the accused appellant for cultivation. There were land disputes between members of the family and in particular between the complainant and the accused appellant.

8. Of the eleven witnesses examined by the Prosecution, the first Prosecution Witnesses (PW-1) only gave evidence of preparation of a sketch map at the place of occurrence and the second Prosecution Witness (PW-2) testified to the receipt of case records in the office of the District Magistrate. The Sixth Prosecution Witness (PW-6) only witnessed the preparation of the site map of the place of occurrence, recovery of an iron splinter and some blood stained clothes and articles. Three witnesses, that is, the 5th, 9th and 10th witnesses (PW-5, PW-9, PW-10) did not support the case made out by the Prosecution and were declared hostile. The ninth and tenth Prosecution Witnesses who were produced to testify to the confession allegedly made by the main