Criminal liability under Section 34 IPC requires proof of a shared common intention. Mere presence at the scene of the crime, without evidence of active participation or a pre-arranged plan, is insufficient to convict co-accused persons for the acts of the principal perpetrator.

JUDGMENT :

Per Pradeep Kumar Srivastava, J.

1. We have already heard Mr. Navneet Sahay, learned counsel appearing for the appellants and Mr. Satish Prasad, learned A.P.P. appearing for the State.

2. Instant criminal appeal is directed against the judgment of conviction and sentence dated 20.05.2003 passed by learned Additional Sessions Judge (F.T.C.), Seraikella in S.T. No.136 of 2002, whereby and whereunder the appellants have been held guilty for the offence under Section 302 read with Section 34 of the Indian Penal Code and sentenced to undergo imprisonment for life FACTUAL MATRIX

3. Factual matrix giving rise to this appeal is that on 23.02.2003 at about 09:30 p.m., informant Khudiram Mahto along with Dhaniram Mahto was present at the house of Ghasiram and when they came out towards the grill gate, they saw that Ashok, Nishikant and Bapikoyal were standing very close to the gate. Meanwhile, Ashok Mahto with intention to kill informant’s brother Dhaniram fired upon him then he fell down being disbalanced. Meanwhile, all the three accused jointly fired aiming the informant which could not hit him. It is alleged that at the time of occurrence the villagers assembled for seeing the programme of Chhou dance , also arrived hearing the hallah. Dhaniram who was still conscious told about the occurrence to the villagers and brought to T.M.H. hospital but declared dead by doctor. The motive behind the occurrence is alleged that Nimai Mahto, brother of Ashok Mahto, had committed illicit act with niece of informant due to which there was tense relationship and this occurrence took place.

On the basis of above fardbeyan, Adityapur (R.I.T) P.S. Case No.35 of 2002 corresponding to (G.R Case No.119 of 2002) dated 24.02.2002 was registered for the offence under Section 302 read with Section 34 of the I.P.C. Later on dated 06.03.2002, Section 27 of the Arms Act was also added against all the named accused persons.

4. After completion of investigation, charge-sheet was submitted against all the appellants for the offence under Sections 302/307 read with Section 34 of the I.P.C. The case was committed to the Court of sessions where S.T. No.136 of 2002 was registered. The accused persons denied the charges levelled against them and claimed to be tried.

5. After completion of trial, impugned judgment and order of conviction and sentence has been passed which has been assailed in this appeal.

6. Learned counsel for the appellants has submitted that P.W.5 (informant) and P.W.8 (Ghasiram) are the only eye witnesses of the occurrence but their testimony suffers from material contradictions and discrepancies which cannot be relied upon. The P.W.5 (informant) categorically admits inimical terms with the appellant Ashok Mahto and there was no grudge or enmity with appellant Nos.2 and 3. The P.W.5 and P.W.8 have not stated as to the source of identification of the accused persons in the dark night of the occurrence. The single firearm injury sustained by the deceased is also not corroborated by his P.M. Report. The deceased was conscious when the villagers assembled and he disclosed about the incident, is also not believable at all as none of the villagers have supported the prosecution story in the manner described by the informant. It is further submitted that the informant has stated that all the accused persons started firing aiming him but not a single pellet or empty cartridge was found near the place of occurrence. Admittedly, no other person has been injured in the said occurr