The Allahabad High Court has held that the mere presence of an accused at the place of occurrence, his relationship with the principal accused, or his participation in an assault on other persons cannot, by itself, establish common intention to commit murder under Section 34 of the IPC.

The court observed that

“The inference, however, must arise from the circumstances proved and cannot be founded merely on association, presence or suspicion.”

It further held that

“participation in an occurrence does not, by itself, amount to participation in every offence committed during that occurrence.”

The order was delivered by a division bench of Justice Salil Kumar Rai and Justice Vinai Kumar Dwivedi on the criminal appeal filed by Harish Chandra against his conviction by the District and Sessions Judge, Kanpur Dehat.

The appeal arose from Case Crime No. 113 of 1987 registered at Bhognipur Police Station, District Kanpur Dehat, initially under Sections 307 and 323 of the IPC.

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After the death of the injured Chhuttan, Section 302 IPC was added during the investigation.

Harish Chandra (appellant) had been convicted under Sections 302 and 323 read with Section 34 of the IPC and sentenced to life imprisonment and six months’ rigorous imprisonment, respectively.

The prosecution case was that on 24.05.1987, at about 9 p.m., Tara Chand invited Chhuttan (deceased), Gaya Prasad (first informant) and Chhote to sleep in his muskmelon field. When they reached the field, Sheo Ram, Puttan and Harish Chandra were already present.

According to the prosecution, Puttan exhorted the others to beat the three men on the allegation that they had stolen his slippers. Sheo Ram then fired at Chhuttan with a double-barrelled gun, while Puttan and Harish Chandra allegedly assaulted Gaya Prasad and Chhote with lathis and a stick.

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The FIR was lodged the following morning at 9:55 a.m. at Bhognipur Police Station under Sections 307 and 323 IPC against Sheo Ram, Tara Chand, Puttan and Harish Chandra.

Chhuttan died on 27.05.1987, following the firearm injury, leading to the addition of Section 302 of the IPC.

His statement recorded by the investigating officer under Section 161 of the CrPC was subsequently treated by the trial court as a dying declaration.

The High Court, however, found that the prosecution evidence did not establish any functional relationship between the acts attributed to Harish Chandra and the murder of Chhuttan.

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The court noted that the prosecution itself alleged that Sheo Ram fired the fatal shot, while Harish Chandra and Puttan assaulted Gaya Prasad and Chhote.

“There is no allegation that the appellant assaulted the deceased or attempted to do so. Equally, there is no evidence that any injury caused by a stick was found either on the body of the deceased or on the body of Chhote. The injuries of Gaya Prasad, as noticed earlier, have not been proved. “ the court observed.

The bench further pointed out that the medical evidence did not support the prosecution case against Harish Chandra. The post-mortem evidence showed that the injuries sustained by Chhuttan were firearm injuries and could not have been caused by a lathi or stick.

Similarly, Chhote had only one contusion on his ankle, which the doctor attributed to a lathi, while Harish Chandra was alleged to have been carrying a stick.

Gaya Prasad’s alleged injuries were also not proved, as his injury report was not available on the trial court record.

The court said the prosecution was required to establish not only the existence of a common intention but also the participation of the accused in furtherance of that intention.

The bench ruled that

“It is not enough to establish that the accused shared some common purpose or participated in some other criminal act during the same transaction. The act attributed to him must have some bearing upon, and must assist or facilitate, the commission of the offence charged.”

Applying this principle, the bench observed that even if Harish Chandra’s alleged assault on Gaya Prasad and Chhote was accepted, the prosecution had failed to show how that act aided, facilitated or advanced the murder of Chhuttan.

The court also noted that Chhuttan remained alive for 10 to 15 minutes after the firearm injury, yet there was no allegation that Harish Chandra made any attempt to assault him further or prevented the injured persons from assisting him.

The court also rejected the argument that Harish Chandra’s presence in the field before the arrival of the deceased and injured persons established a prior meeting of minds.

It held that

“The fact that the appellant was already present there may establish his presence, presence is not equivalent to participation in the murder.”

His relationship with Sheo Ram, who was his father, was also held insufficient to establish common intention.

Likewise, the alleged dispute over Gaon Sabha land was principally attributed to Sheo Ram, who was alleged to have illegally occupied the land, with no independent evidence showing that Harish Chandra shared the motive or had joined any prior plan to kill Chhuttan.

The bench concluded that the prosecution had failed to prove beyond reasonable doubt that Harish Chandra shared a common intention with Sheo Ram to cause Chhuttan’s death or that any act attributed to him was in aid of or in furtherance of the murder.

It also found that his participation in the offence under Section 323 IPC was not established.

The court was of the view that

“Presence, relationship and participation in an assault upon other persons may be relevant circumstances, but they cannot dispense with the requirement of establishing participation in furtherance of the common intention relating to the particular offence charged.”

The court accordingly allowed the appeal and set aside the impugned order dated 25.1.1992.

Case: Harish Chandra vs State of U.P.

Case No: Criminal Appeal No. – 211 of 1992

Date of Order: 11.08.2026

Status: Allowed