ORDER :

1. Leave granted.

2. The short point for consideration in these appeals is as to whether the rigour of Section 34 of the Indian Penal Code, 1860 (hereinafter referred to as ‘the IPC’) would get attracted by applying the principle of vicarious liability on the appellant so as to convict him under Section 307 of the IPC.

3. The case of the prosecution in nutshell is that two accused made an attempt to shoot the complainant and the appellant being the co-accused instigated the others to kill the complainant. As rightly pointed out by learned counsel appearing for the appellant, on a reading of the evidence of the three eyewitnesses namely PW-1 to PW-3, there is no clear material to attract Section 34 of the IPC insofar as the common intention qua the appellant is concerned. The evidence read by learned counsel appearing for the appellant would give the impression that after the shots were fired, the appellant who came to the place of the occurrence said “shoot and kill them.”

4. Such an utterance would not attract Section 34 of the IPC as, after the said statement, no attempt was made in furtherance of common intention. We are of the view that both the High Court in the impugned o