1. Appeal against conviction for attempt to murder — Sections 307/34 IPC — Appellant acquitted giving benefit of doubt. (Para 1 , 2 , 3 , 4 , 5 , 6 , 7 , 8 )
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2026 Supreme(All) 1426
HIGH COURT OF JUDICATURE AT ALLAHABAD
Santosh Rai, J.
Ballu and another - Appellants
Versus
State of U.P. – Respondent
Criminal Appeal No. - 2257 of 1984
Decided On : 29-09-2026
Important Points
Vicarious liability under Section 34 IPC requires proven participation in furtherance of a shared common intention. Material omissions in police statements regarding an accused's role constitute contradictions, and a lack of medical corroboration for alleged overt acts creates reasonable doubt sufficient for acquittal.
Subject
Criminal Law - Attempt to Murder / Common Intention
Act Referred
INDIAN PENAL CODE : S.307, S.34
CRIMINAL PROCEDURE CODE : S.161
CRIMINAL PROCEDURE CODE : S.161
Headnote
(A) Indian Penal Code, 1860 - Sections 307 and 34 - Common intention and participation - To fasten liability under Section 34, both the existence of a common intention and participation in the criminal act in furtherance of such intention must be established - Mere presence or participation without proved common intention is insufficient to establish vicarious liability. (Paras 28 and 29)
(B) Code of Criminal Procedure, 1973 - Section 161 - Omissions amounting to contradictions - A significant omission in a statement recorded before a police officer regarding the specific and distinct role of an accused, which is subsequently introduced as a specific act in court, constitutes a material improvement and contradiction. (Paras 22 and 23)
(C) Evidence - Testimony of injured witness - While the testimony of an injured witness ordinarily carries considerable weight, it must inspire confidence; where the specific role attributed to an accused (e.g., carrying a knife) is not corroborated by medical evidence, it creates reasonable doubt. (Paras 18, 19 and 25)
(D) Test Identification Parade - Corroborative nature - Identification parades conducted after a considerable lapse of time and through a procedurally irregular manner cannot be treated as a substitute for reliable substantive evidence. (Para 27)
Facts of the case:
This is an appeal against a conviction under Section 307/34 IPC. The prosecution alleged that while two co-accused fired upon the victim, the appellant held the victim's hair while armed with a knife. The victim sustained several firearm injuries, but medical reports disclosed no knife injuries. The appellant was not named in the First Information Report lodged shortly after the occurrence.
Findings of Court:
The testimony of the informant was found to be irreconcilably contradictory regarding his presence at the place of occurrence. The injured witness's testimony regarding the appellant's role was a material improvement over the statement given to the Investigating Officer. No medical evidence supported the allegation that the appellant used a knife. Furthermore, the test identification parade was delayed and the procedure followed was found to be unreliable.
Issues: Whether the prosecution established beyond reasonable doubt the identity, participation, and common intention of the surviving appellant in the commission of the offence under Section 307/34 IPC.
Ratio Decidendi: Material omissions in statements recorded under Section 161 Cr.P.C. regarding an accused's specific role amount to contradictions when they relate to important features of the incident. Constructive liability under Section 34 IPC cannot be inferred from mere presence or uncertain allegations of minor acts when the primary assault was committed by others and the alleged participation is not supported by medical evidence or consistent testimony.
Result: The appeal is allowed. The judgment and order of conviction... is set aside. The appellant... is acquitted of the charge under Section 307/34 IPC by giving him the benefit of doubt.
(B) Code of Criminal Procedure, 1973 - Section 161 - Omissions amounting to contradictions - A significant omission in a statement recorded before a police officer regarding the specific and distinct role of an accused, which is subsequently introduced as a specific act in court, constitutes a material improvement and contradiction. (Paras 22 and 23)
(C) Evidence - Testimony of injured witness - While the testimony of an injured witness ordinarily carries considerable weight, it must inspire confidence; where the specific role attributed to an accused (e.g., carrying a knife) is not corroborated by medical evidence, it creates reasonable doubt. (Paras 18, 19 and 25)
(D) Test Identification Parade - Corroborative nature - Identification parades conducted after a considerable lapse of time and through a procedurally irregular manner cannot be treated as a substitute for reliable substantive evidence. (Para 27)
Facts of the case:
This is an appeal against a conviction under Section 307/34 IPC. The prosecution alleged that while two co-accused fired upon the victim, the appellant held the victim's hair while armed with a knife. The victim sustained several firearm injuries, but medical reports disclosed no knife injuries. The appellant was not named in the First Information Report lodged shortly after the occurrence.
Findings of Court:
The testimony of the informant was found to be irreconcilably contradictory regarding his presence at the place of occurrence. The injured witness's testimony regarding the appellant's role was a material improvement over the statement given to the Investigating Officer. No medical evidence supported the allegation that the appellant used a knife. Furthermore, the test identification parade was delayed and the procedure followed was found to be unreliable.
Issues: Whether the prosecution established beyond reasonable doubt the identity, participation, and common intention of the surviving appellant in the commission of the offence under Section 307/34 IPC.
Ratio Decidendi: Material omissions in statements recorded under Section 161 Cr.P.C. regarding an accused's specific role amount to contradictions when they relate to important features of the incident. Constructive liability under Section 34 IPC cannot be inferred from mere presence or uncertain allegations of minor acts when the primary assault was committed by others and the alleged participation is not supported by medical evidence or consistent testimony.
Result: The appeal is allowed. The judgment and order of conviction... is set aside. The appellant... is acquitted of the charge under Section 307/34 IPC by giving him the benefit of doubt.
Legal Category Hierarchy
Advocates Appeared:
For the Appellant : Ashish Kumar Singh, M.A. Qadeer, Mohammad Abdul Haseen, R.P. Tewari
For the Respondent: A.G.A.
For the Appellant : Ashish Kumar Singh, M.A. Qadeer, Mohammad Abdul Haseen, R.P. Tewari
For the Respondent: A.G.A.
Table of Contents
2. Prosecution argued witness testimony proved guilt; defence argued false implication, lack of evidence, contradictions, and no common intention. (Para 9 , 10 , 11 , 12 , 13 , 14 )
3. Material contradictions in eyewitness accounts; omission of accused's specific role in police statement; identification parade doubtful; no knife injury. (Para 15 , 16 , 17 , 18 , 19 , 20 , 21 , 22 , 23 , 24 , 25 , 26 , 27 , 28 , 29 , 30 , 31 , 32 , 33 , 34 , 35 , 36 , 37 )
4. An omission can be a contradiction if the omitted fact is significant and relevant, going to the root of the prosecution case. (Para 23 , 24 , 25 , 26 )
5. Appeal allowed; judgment of conviction and sentence for appellant under Section 307/34 IPC set aside; appellant acquitted. (Para 38 , 39 , 40 , 41 , 42 , 43 , 44 )
6. When does an omission in a police statement under Section 161 CrPC amount to a contradiction usable under Section 145 of the Evidence Act?
An omission amounts to a contradiction when it concerns a significant and relevant fact, so that the omitted fact and the stated fact cannot both coexist. (Para 23 , 24 , 25 , 26 )
7. What must be established to fasten liability on an accused with the aid of Section 34 IPC?
Two elements must be established: (i) existence of a common intention among the accused, and (ii) participation of the accused in the criminal act in furtherance of that common intention. (Para 28 , 29 )
8. Can a conviction be based on a test identification parade that is attended with doubtful circumstances?
No, a test identification parade is corroborative and cannot substitute for substantive evidence. If the identification proceeding is doubtful, it cannot safely be the basis of conviction. (Para 27 )
9. What is the standard of proof required in a criminal trial?
The prosecution must prove its case beyond a reasonable doubt. Suspicion, however strong, cannot take the place of proof. Where two views are possible, the view favourable to the accused must be adopted. (Para 35 , 31 , 32 , 33 , 34 )
JUDGMENT :
Santosh Rai, J.
1. Heard Ms. Mayuri Mehrotra, learned Amicus Curiae for appellant no.2, Shri Rajmani Yadav, learned AGA for the State and perused the material available on record.
2. The present criminal appeal arises out of the judgment and order passed by the learned trial court in Sessions Trial No. 153 of 1982, State Vs. Munnilal and another, connected with Sessions Trial No. 259 of 1982, State Vs. Hassu, whereby the appellant Hassu and Ballu were convicted under Section 307/34 IPC and sentenced to undergo five years R.I. and a fine of Rs.2,000/- on each of the appellants. In case of default of payment of fine, to undergo additional one year R.I.
3. During pendency of the present appeal, appellant no.1 Ballu died and, accordingly, the appeal stood abated against him. Thus, the present appeal survives only on behalf of appellant no.2 Hassu.
4. The prosecution case, according to the First Information Report is that the complainant, Hiralal (PW-2), who was working as an orderly (peon) at the Family Welfare Centre, Hamirpur, was going on 20.07.1981 at about 9.30 a.m. with his son Chunno (PW-4) from Hathi Darwaza, via Dharamshala, towards the bus station. In front of Nasim's shop, the accused persons Munnilal (since deceased) and Ballu, his nephew (sister's son), resident of Maudaha, who was also carrying a pistol ("tamancha"), and two other persons met them. On seeing the complainant's son Chunno, Munnilal (deceased) said that he had come on behalf of Gorelal to have "the matter settled," and saying "now I will show you," he grabbed hold of his son. On seeing this, the complainant raised an alarm, on hearing which Gorelal Kewat (PW-3) and other persons came running while shouting a challenge. The accused persons, with the intention of killing the complainant's son, fired at him and caused him injury by gunshot, and then fled. Complainant Hiralal took his son to the hospital, and having left him there, got a written report of the incident prepared through one Shivkumar Gupta, writer, and lodged it at Police Station Kotwali, Hamirpur, on the basis of which Head Moharrir Mahadev Prasad (PW-1) registered the First Information Report on 20.07.1981, 45 minutes after the occurrence, at 10.15 a.m. The distance from the place of occurrence to the police station is recorded in the report as one-and-a-half furlongs to the west. Particulars of the case were entered by Head Constable Mahadev Tripathi in General Diary Report No. 18, at 10.15 A.M., dated 20.07.1981.
5. At the District Hospital, Hamirpur, where the complainant left his son Chunno, he was medically examined at about 10 a.m. by Dr. B.K. Nigam (PW-7), whose injury report is Exhibit Ka-13. The following injuries were found on the body of Chunno:
"Injury 1: Multiple gunshot wounds of entry in an area of 15 cm x 14 cm x cavity deep, on the right side of the abdomen, scorching present; each wound 0.2 cm x 0.2 cm in size, except one wound measuring about 3 cm x 2 cm through which a portion of the small intestine was protruding, the intestine being perforated at two places. This wound was 8 cm away from the umbilicus, on the right side, at the 7 o'clock position; fresh bleeding present; direction of the wound right to left.
Injury 2: Gunshot wound of entry, 4 cm x 4 cm x muscle deep, on the left [upper-arm/humeral] eminence, scorching present, fresh bleeding present; direction left to right.
Injury 3: Lacerated wound, 3 cm x 0.3 cm x scalp deep, on the back of the head, left side, just lateral to the midline, bleeding present, obliquely placed.
Injury 4: Lacerated wound, 1 cm x 0.2 cm x scalp deep, on the left parietal region, 2 cm above injury No. 3, bleeding present.
Injury 5: Lacerated wound, 1 cm x 0.2 cm x scalp deep, on the left parietal region, 1.5 cm above injury No. 4, bleeding present.
Injury 6: Lacerated wound, 0.5 cm x 0.5 cm x scalp deep, on the left parietal region, bleeding present, 9 cm above the left eyebrow, 3 cm lateral to the midline.
Injury 7: Abrasion, 1.5 cm x 1.5
