For criminal liability under Section 34 IPC, prosecution must establish common intention or conspiracy among accused, which was not proven.

JUDGEMENT

DHARMESH SHARMA, J.

1. This common judgment shall decide the aforementioned two Criminal Appeals, which have been preferred by the appellant/convict, namely Anil Kumar Vats assailing the impugned Judgment dated 28.02.2024 followed by the order on sentence dated 08.04.2024 passed by the learned Additional Sessions Judge (South-West)-05, Dwarka Courts, Delhi [“Trial Court”] in case bearing Sessions Case No. 441199/2016 [CNR No. DLSW01-003174-2016] titled ‘State v. Joginder Solanki @ Ravi & Ors.’ arising out of FIR, [First Information Report] No. 64/2016 PS, Police Station Dwarka South, whereby the appellant has been convicted and sentenced to undergo life imprisonment for committing offence under Section 302 read with Section 34 of the Indian Penal Code,1860 [“ IPC ”]

2. The second appeal has been preferred by the complainant, namely Satya Prakash bearing CRL. A. 420/2024, Section 374 & 378 of the Cr.P.C corresponding to section 419(1) & (3) read with Section 528 of emanating from the same impugned judgment whereby the other three accused persons who faced trial in respect of charges under sections 302/506/120B/34 of the IPC read with Sections 25 /27/54/59 of the Arms Act, 1959 have been Bharatiya Nagarik Suraksha Sanhita, 2023 acquitted. Both the appeals raise common questions of law and facts and can be conveniently disposed of together.

THE CHARGE:

3. In the instant matter, the following accused persons have been arraigned for trial:

A-1 Joginder Solanki @ Ravi A-2 Dheeraj Vats @ Rinku A-3 Amit @ Rocky A-4 Anil Kumar Vats @ Choti A-5 Manish Solanki @ Chola It is relevant to point out here that each of the accused persons have been herein referred by their nick names as also through numbering viz., A-1 to A-5 respectively.

4. In a nutshell, A-1/Ravi; A-2/Rinku; A-3/Rocky; and A-4/Choti i.e. the appellant before this Court were charged on the allegations that on 01.02.2016 at about 01:45 p.m., [Post Meridiem], behind Maxfort School, Sector-7, Dwarka, New Delhi within the jurisdiction of PS Dwarka South, they along with the co-accused A-5/Chola [died on 21.01.2019 and trial abated qua him] entered into a criminal conspiracy to commit murder of the deceased Nikhil S/o Mr. Satya Prakash and in pursuance of the said criminal conspiracy, co-accused A-5/Chola inflicted two gunshots with an improvised Pistol upon the deceased Nikhil, who died instantaneously and in pursuance of the criminal conspiracy PW, [Prosecution Witness] 1/Gaurav Bhardwaj was also threatened with death, and thereby the accused persons, committed offences punishable under Sections 302 and 506 read with Section 120-B of the IPC besides Sections 25 /27/54/59 of the Arms Act. FACTUAL MATRIX:

5. The prosecution’s case is that on 01.02.2016 at about 02:00 p.m. a call was received by PW-7/ASI, [Assistant Sub-Inspector]Geeta Devi, PS Dwarka South from the Control Room that one boy has been fired at two rounds near Maxfort School, Sector-7, who has gotten injured, which information was sent by Ct, [Constable]. Chetan No. 1972/PCR fro