The prosecution must prove common intention for liability under Section 34 IPC; mere presence is insufficient for conviction.

JUDGMENT :

ILESH J. VORA, J.

1. This acquittal appeal preferred by the State of Gujarat under Section 378 of the Code of Criminal Procedure, 1973 (‘ Cr.P.C .’, in short) is directed against judgment and order dated 13.08.2008 passed by Additional Sessions Judge, Ahmedabad, in Sessions Case No. 338 of 2006, wherein, respondents-original accused no. 2 and 3 along with accused No.1 came to be tried for offences punishable under Sections Sections 302 and 394 read with Section 34 of the Indian Penal Code, 1860 (‘ IPC ’, for short). At the end of trial, the trial Court acquitted Bijrajsingh @ Bijju Ajitsingh Chudasma – original accused no. 2 and Hasmukhkumar Dineshbhai Rawat – original accused no. 3 from all the charges. However, the court below convicted the accused no. 1 for the offence of murder and robbery.

2. The facts and circumstances, giving rise to this appeal are as under:

2.1 Deceased Pintoo was resident of Meghaninagar, Ahmedabad and he was passionate to wear golden chains and rings and he was used to wear two golden chains, rings and keep with him the latest mobile phone. The father of the deceased was custom officer and mother settled at Canada. The deceased was living with his elder brother Rajdeepisingh Siddhu (PW-1). The deceased generally used to sit at the Pan Shop in the area of Meghaninagar. The respondent accused along with accused no. 1 belonged to same area and used to visit the pan shop, where the deceased usually come for time pass.

2.2 In the aforesaid facts, the respondents along with the accused no. 1 Rakesh and juvenile accused Vijay planned to rob the deceased and in order to call him at the secluded place, the minor accused Vijay had called on the mobile of the deceased that, one girl Vanita wants to meet him on 05.04.2006 at about 9- 00 PM and she will waiting for him near I.G. compound, Meghaninagar. The call was made from nearby STD PCO booth owned by Dilip Vachheta (PW- 6). The plan was successful. The respondents accused and his companion obtained a clutch wire of two wheeler from Dipak Prajapati (PW-8), who is doing repairing work of vehicles in the name of style of “Jay Ambe Auto Service’. On the day when deceased was called, he had worn three golden chains and two golden rings and one silver ring. He had bought new Bajaj Pulsar Bike. As per the plan, the deceased went to the place of incident. The accused in connivance with each other and in order to rob the deceased, killed him by strangulation using the clutch wire and thereafter, taken away the jewellery worn by the deceased along with Nokia mobile and his wallet wherein, cash amount of Rs.4500/- was lying. The accused after the death of the deceased, took his dead body and threw it near warehouse of PWD situated in the I.G. Compound, Meghaninagar, Ahmedabad. The death was caused between 9-30 to 11-00. On the day of incident, at the pan shop, the deceased had conversation with his brother PW-1, who went to see the movie with his friends. When the brother PW-1 after 12-00 PM, came to his house, the presence of the deceased was not found and his mobile phone was switched-off. The PW-1 in the morning came to know that, the dead body of the deceased was lying in the I.G. Compound. The Meghaninagar Police was also informed and the police officials came at the spot. The clutch wire, which was used for strangulation, was found at the neck of the deceased. The PW-1 noticed that, the jewellery and other valuable including Mobile were not found on the body of the deceased and on seeing the nature of injuries, he lodged an FIR against the unknown person for the act of robbery and murder of his brother. The office was registered at Meghaninagar Police Station. The investigation was commenced. The IO PW-15 Mr. Jadav came to know that the respondents and accused Rakesh committed murder of the deceased and on preliminary investigation, their involvement was surfaced. The accused were arrested and when the principal accused Rakesh was in police custody, he made