Patna High Court

RAJVANSH PANDEY @ RAM CHANDRA PANDEYversusThe State of Bihar

Decided: 3 July 2026
Disposal: ALLOWED
Bench: BIBEK CHAUDHURI RANA VIKRAM SINGH

Holding

Both appeals are allowed, acquitting the appellants due to lack of proof of common intention and reasonable doubt.

Summary

The appellants Gopal Dubey and Rajvansh Pandey were convicted for the murders of Kapil Deo Pandey and his son Mithilesh in 1986, under IPC sections 302 read with 34 and 452/34, and sentenced to life imprisonment and three years respectively. They appealed, contending that the trial court erred in attributing a land‑dispute motive and that the prosecution failed to prove a common intention, especially since the injuries were caused by heavy weapons (gada and bhala) not carried by the appellants. The court examined the testimony of ten witnesses, noting inconsistencies, the lack of direct eyewitness observation, and the failure to examine the investigating officer, which created material gaps. Medical evidence showed injuries inconsistent with the knives the appellants possessed. Applying the principles of Section 34 IPC, the court held that the prosecution did not establish a common plan or intention among the appellants, and the reasonable doubt arising from evidentiary deficiencies warranted acquittal. Consequently, both appeals were allowed and the appellants were released.

Issues considered

The prosecution proved the existence of a common intention under Section 34 of the IPC.
The motive of a land dispute was correctly inferred by the trial court.
The non‑examination of the investigating officer created reasonable doubt.
The weapon mismatch between the injuries and the accused's arms undermines the conviction.

Legislation cited

Criminal Procedure Code — s. 13
Indian Penal Code — s. 302, 34, 452

Subjects

murder
common intention
IPC 302
IPC 34
evidence assessment
land dispute motive
investigating officer non‑examination
acquittal
life imprisonment

Judgment

IN THE HIGH COURT OF JUDICATURE AT PATNA
CRIMINAL APPEAL (DB) No.1295 of 2019
Arising Out of PS. Case No.-18 Year-1986 Thana- SHIVSAGAR District- Rohtas
======================================================
Gopal Dubey Son of Late Ramji Dubey Resident of Village - Badki Khudnu
Kala, P.S.- Chenari, District - Rohtas.

... ... Appellant/s
Versus
The State of Bihar

... ... Respondent/s
======================================================
with
CRIMINAL APPEAL (DB) No. 1379 of 2019
Arising Out of PS. Case No.-18 Year-1986 Thana- SHIVSAGAR District- Rohtas
======================================================
Rajvansh Pandey @ Ram Chandra Pandey S/O Late Jagdeo Pandey R/O
Village- Sonhar, P.S.- Shivsagar, District- Rohtas

... ... Appellant/s
Versus
The State of Bihar

... ... Respondent/s
======================================================
Appearance :
(In CRIMINAL APPEAL (DB) No. 1295 of 2019)
For the Appellant/s : Mr. Sanjay Singh, Sr. Adv.
Mr. Rudrank Shivam Singh, Adv.
Mr. Ranveer Pratap Singh, Adv.
For the State : Ms. Km. Shashi Bala Verma, APP
(In CRIMINAL APPEAL (DB) No. 1379 of 2019)
For the Appellant/s : Mr. Jitendra Singh, Sr. Adv.
Mr. Tej Pratap Singh, Adv.
Mr. Yash Singh, Adv.
Mr. Snehil Pratik, Adv.
Mr. Saurabh Kumar, Adv.
For the State : Mr. Dilip Kumar Sinha, APP
======================================================
CORAM: HONOURABLE MR. JUSTICE BIBEK CHAUDHURI
and
HONOURABLE MR. JUSTICE RANA VIKRAM SINGH
ORAL JUDGMENT
(Per: HONOURABLE MR. JUSTICE BIBEK CHAUDHURI)

Date : 03-07-2026
Heard the parties.

2. Both the aforementioned appeals challenged the
Patna High Court CR. APP (DB) No.1295 of 2019 dt.03-07-2026
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judgment of conviction dated 24.09.2019 passed in Sessions

Trial No. 317 of 1992 by 3520/2013 passed by Fast Track 1st

Court at Rohtas, Sasaram whereby and whereunder both the

appellants were sentenced to suffer imprisonment for life for the

offence punishable under Section 302 read with Section 34 of

the Indian Penal Code. They were also sentenced to suffer

imprisonment for three years each for the offence punishable

under Section 452/34 of the Indian Penal Code. Since two

appellants above named have filed the aforementioned two

appeals, we propose to hear out the appeals together and pass

the following judgment.

3. The appellant in Criminal Appeal (DB) No. 1295

of 2019 was represented by Mr. Sanjay Singh, the learned

Senior Counsel and appellant, Rajvansh Pandey @ Ram

Chandra Pandey in Criminal Appeal (DB) No. 1379 of 2019 was

represented by Mr. Jitendra Singh, the learned Senior Counsel.

The State is represented by Ms. Sashibala, learned Public

Prosector In-Charge.

4. As per the FIR, the incident took place on 4 th

March, 1986 at about 10:00/11:00 P.M. One, Suresh Pandey

made a statement before the on duty police officer on

05.03.1986 at about 8:00 A.M. in the jurisdictional police station

stating inter alia that on 4th March, 1986 at about 10:00/11:00
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P.M. he was lying in his room. His father and two younger

brothers were lying in the domuha of the house (front room

having two doors, one being entrance door and on the opposite

side there was a door to go inside the house leading to the

courtyard of the house). Another brother of the informant,

namely, Narayan Pandey was sleeping in his room. The wives of

the informant and Narayan Pandey were on the courtyard when

they found some sound of breaking of tiles of the roof. They

initially thought that some mischief was done by some cats and

the said two women made some sounds so that the cats might go

away from the place, however, such sound was persisting. The

informant came out of his room with a torch and under

torchlight found one Ramji Dubey armed with Gadasa, Gopal

Pandey with a knife in his hand, Rajvansh Pandey with a

country-made gun and a knife and Ajay Kumar Pandey with a

Bhala in his hand were standing on the tiled roof of the house of

the informant. Immediately, they appeared on the courtyard.

Seeing them, the informant threatened them with dire

consequence if they tried to proceed towards the house. Then,

the above named accused persons entered inside domuha from

the door leading to the courtyard. After few minutes they came

out and left the place. The informant and his brother, Narayan

and other family members went to domuha and found their
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father, Kapil Deo Pandey and one of the brother, Mithilesh

Pandey were murdered causing sharp-cutting injury on their

necks.

5. On the basis of the said complaint, Police

registered Shivsagar P.S. Case No. 18/1986 dated 05th March,

1986 under Section 452/302/34 Indian Penal Code against FIR

named accused persons.

6. Investigation culminated in filing charge-sheet

only against the above named two appellants showing Ramjee

Dubey as absconder and Ajay Kumar Pandey being juvenile. It

would not be out of place to mention that a separate charge-

sheet was filed against Ajay Kumar Pandey before the Juvenile

Justice Board and his trial was separated. During trial,

prosecution examined ten witnesses. The inquest report of the

dead body and the post-mortem reports were marked exhibits.

The accused persons were examined under Section 13 of the

Code of Criminal Procedure. The defence did not leave any

evidence in support of their case. Finally, the learned Trial Judge

passed the order of conviction and sentenced as aforesaid.

7. It is submitted at the outset by Mr. Sanjay Singh,

the learned Senior Counsel on behalf of the appellant, Gopal

Dubey that the Trial Court laid much stress on the motive of the

accused persons. It is not in dispute that the accused
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persons/appellants are related to the deceased and his family

members. While Gopal Dubey is an agnate, another appellant is

a relative of the deceased. The Trial Court held that there was a

long-standing land dispute between the parties which operated

as motive for causing death of the above mentioned two

unfortunate persons. This finding of the Trial Court was

vehemently challenged by the learned counsel for the appellant.

In support of his contention he refers to a family chart of the

deceased, Kapil Deo Pandey. It is submitted by him that Kapil

Deo had five sons, namely, Ram Narayan Pandey who has been

depicted as Narayan Pandey in fardbeyan (PW-2), Nirmal

Pandey (PW-3), Suresh Pandey (PW-5) as well as two pre-

deceased sons, namely, Mithilesh Pandey and Munna Pandey. It

is also submitted by Mr. Sanjay Singh that Kapil Deo had two

brothers, namely, Baijnath Pandey and Butan Pandey. Thus,

Kapil Deo were in all three brothers. Baijnath died issueless

while Butan had two daughters, namely, Gangarati and

Jamunarati. Son of Gopal Dubey is the son of Jamunarati.

Jamunarati was the wife of Gopal Dubey.

8. It is also contended by Mr. Singh that way back

in 1952 a taksisnama (deed of partition) was executed for

amicable partition of the properties of the family. In the said

taksisnama, one Parvati, daughter of Kapil Deo was shown as
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the daughter of Baijnath. Thus, after the death of Baijnath, his

share devolved upon Parvati and through Parvati ultimately to

Kapil Deo. This led to filing of a Title Suit between the

contesting parties which was registered as Title Suit No. 181 of

1981, namely, for the following reliefs:-

(i) for declaration that the alleged taksisnama is an

illegal and void document as it was instituted on

misrepresentation and mistake of fact.

(ii) for declaration that Parvati was not daughter of

Baijnath and the property left by Baijnath be decreed in favour

of Gangarati and Jamunarati in half share being the daughters of

his full brother. The said suit was decreed on 7th January, 1994.

No appeal was filed by the respondents and the judgment passed

by the Trial Court lists its finality. During the pendency of the

suit the names of Kapil Deo and Jagdev were deleted due to

their demise.

9. Thus, it is stated by the learned Senior Counsel

that the land dispute had been set at rest by a decree passed by a

competent Civil Court and there is no dispute on the date of

commission of the alleged offence between the parties.

Secondly, it is submitted by Mr. Singh that appellant Gopal

Dubey filed a criminal case alleging commission of dacoity

against P.W.-5, Suresh; P.W.-2, Ramnarayan and P.W.-3, Nirmal.
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In the said suit an order of conviction and sentence was passed

against the accused persons.

10. We have duly considered the submission made

by the learned Senior Counsel for the appellants. In order to

establish that, motive was wrongly placed against the accused

persons by the Trial Court.

11. We are not, however, in agreement that the

learned Senior Counsel on behalf of appellant, Gopal Dubey,

only for the reason that Kapil Deo Pandey and one of his sons

were murdered on 4th March, 1986. The suit for declaration was

decreed on 7th January, 1994. So, the suit for declaration that

taksisnama was illegal and inoperative, was very much pending

on the date of commission of murder of Kapil Deo and one of

his sons. Therefore, the family dispute with regard to the

property and efficacy and correctness of the partition deed was

very much in existence on the date of commission of offence. As

a result, therefore, we are of the view that the appellants had

grudge, enmity and a specific motive against the deceased. Now,

let us apprise the evidence on record independently on our own.

12. We have already stated that there were ten

witnesses examined by the prosecution, amongst them PW-5 is

the informant, PW-1, Nago Devi alias Nagwali Devi is the wife

of the informant. PW-2, Ram Narayan Pandey who was
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described in the fardbeyan as Narayan Pandey is the brother of

the informant; PW-3, Nirmal Pandey is another brother of the

informant; PW-4, Vindhyachal Devi is the wife of PW-2; PW-7,

Babban Pandey is a witness to the inquest report and PW-8

Bhikhari Singh is a local villager who saw the dead body of

Kapil Deo and one of his son. PW-9, Ayodhya Pandey and PW-

10, Kedar Singh are also villagers.

13. So far as, the evidence of PW-8, PW-9 and PW-

10 are concerned they did not see the occurrence. Hearing hue

and cry they went to the house of Kapil Deo Pandey and saw the

dead bodies of Kapil Deo and Mithilesh. Same is the evidence

of PW-9 and PW-10. Beside the above named witnesses all

witnesses are family members being the sons and son’s wives of

Kapil Deo Singh.

14. From the evidence of PW-1, Nago Devi and

PW-4, Vindhyanchali Devi, this Court finds that on the date of

occurrence at about 10/11 P.M., PW-1 first came to the

courtyard followed by PW-4 to attend nature’s call. After easing

out, they found some sound coming from the tiled roof of their

house. Initially, they found that some cats might have climbed

on the tiled roof and they started to make sound to drive them

away. Hearing this, PW-5, Suresh Pandey, came out of his room

with a torch. Under the torchlight he found the accused persons.
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Thereafter, the accused persons came to the courtyard. PW-5

threatened them with dire consequence if they tried to come

forward. Then, they entered inside domuha and committed

murder of Kapil Deo and one of his sons, namely, Mithilesh.

After they left the house, the family members went inside

domuha and found the dead bodies of Kapil Deo and Mithilesh

having sharp-cutting deep wound on their necks.

15. The question that arises for adjudication at this

stage, is as to whether the witnesses or any of them saw the

actual incident or not. In other words, did anyone of the sons or

son’s wives see the appellants actually committing murder of the

father and brother of the informant. From the cross-examination

of PW-1, it appears that she clearly stated,

“आदमी को दे खकर मै घर मे जाकर केवाड

सटा ददया, अं दर से बं द नहीं दकया।”.

This statement of PW-1 suggests that seeing the

accused persons on the courtyard, she rushed to her room and

closed the door, but, it was not bolted from inside. The learned

Senior Counsel on behalf of the appellants raises a pertinent

question as to whether PW-1 saw the incident or not.

16. Again, he refers to the evidence of PW-4,

Vindhyanchal Devi. From the evidence of PW-4 it appears that

after he saw the accused persons, he rushed to her room where
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her husband was sleeping. Thereafter her version is as follows:-

“मै अपने घर मे जाकर पदत को जगाई मे रे पदत

कोठा पर चढ गये । मे रे। पदत टाचर जलाये और

हलला दकये । उपरोकत आदमी आं गन मे कू द गये ।

वे लोग मे रे दो मूँहा कोठरी मे गये । मे रे ससु र

और दे वर दमथले श पाणडे वहाँ सोये थे ।”

Thus, there was obviously some time gap between

seeing the appellants on the tiled roof of the house by PW-4,

their appearance on the courtyard by jumping from the roof,

PW-4’s coming to their room and calling her husband, her

husband’s going to the roof and seeing the appellants under a

torchlight. A reasonable suspicion appears as to whether the

appellants who came to commit murder of Kapil Deo Singh

would stand and wait on the courtyard till PW-3, Ram Narayan

Pandey climbed up to the roof and saw them under the

torchlight. It is also found from the cross-examination of PW-4

that before the incident, her father-in-law and elder brother-in-

law were arrested in connection with a criminal case of

committing murder of one Murli Shaw of the same village. They

were also convicted in the said criminal case and few days

before the incident they were relieved from the jail. Thus, there

was enmity between the deceased, his family members and the

appellants. It is an established principle of law that animosity
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between the parties is a double-edged weapon. Animosity in

some cases may be found to be the reason for committing

offence, again in some other cases animosity is the boon for

false implication of the appellants. It is our duty to find out in

which direction the animosity between the party flows to arrive

at the ultimate decision.

17. We have already stated that PW-5, Suresh

Pandey is the informant of this case. From paragraph 2 of the

examination in check of PW-5 it appears thus:-

“2. मे रे पतनी और भव ने 5-6 आदमी को खपडा

पर दे खे। दोनो ने हलला दकया। मै दरवाजा से

दनकल कर टाचर जलाया। टाचर के रोशनी मे

ू े , राजवं श पाणडे , रामजी दब
गोपाल दब ू े , अजय

पाणडे को दे खा और एक आदमी और थे उसे मै

ू े के हाथ मे छरू ा,
नहीं पहचाना। गोपाल दब

ू और छरू ा था,
राजवं श के हाथ मे दे शी बं दक

अजय पाणडे य हाथ मे भाला, रामजी के हाथ मे

गडासा था।”

His evidence also follows as hereunder:-

“4. मे रा भाई नारायण पाणडे कोठा पर चढकर

हलला दकया। हलला पर गाँ व के आदमी आ गये ।

हमलोग दनकल कर दोमूहाँ मे गया और दे खा दक

मे रे) दपता और भाई का गदरन काटकर हतया कर
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ददया गया है ।”

On perusal of these two paragraphs we find two

important things. Both Gopal Dubey and Rajvansh Pandey were

armed with a country-made gun and knife respectively. They

were not armed with either Gadasa or Bhala. It is needless to say

that knife is a sharp-cutting light weight weapon made of iron.

While Gadasa and Bhala are sharp-cutting weapons made of

heavy metal. PW-6, Dr. Naresh Prasad Rai who conducted post-

mortem examination over the dead bodies of Kapil Deo Pandey

and Mithilesh Pandey found two injuries each on the muscles of

the deceased. In case of Gopal Pandey, he found the following

injuries:-

“I. Injury no.- 1 sharp cutting- injury 6"x
2"x 3" at upper part of neck on left side
extending to ear and left side of chick.
Fracture of chick bone and cutting vertabra,
muscles, and vessels at left side of neck.
II. Injury No. 2 sharp cutting- Injury 8"x 4"
at left side of neck 2" below the first injury
and extending to the angle of mandibule with
fracture of mandibule cutting or vertabra
muscles and vessals of left side.”

and in case of Mithilesh Pandey he found the

following injuries:-

“I. Injury no. 1- Sharp cutting injury 5"x 2"x
4" upper part of neck cutting the spinal
chord at level of second verebra in back of
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neck extending to the left side of neck and
left ear. The spinal chord at level of second
vertebra. The spinal chord part of larynx
oesophagus muscle and vessals were found
cut.
II. Sharp cutting injury 4"x 2"x 3" at upper
part of neck in left side 1" below the first
injury extending to the angle of mouth
cutting the muscles trachea oesophaguses
and vessals of neck and 1" of illegible of
muscles and skin were found intact near the
angle of Mandibule.”

18. In cross-examination, he clearly opined that the

injuries found on the body of both the deceased were caused by

heavy sharp-cutting weapon. Thus, it is clear that the injuries

were either caused by Gadasa or Bhala and none of the

appellants were carrying those weapons. This is the dichotomy

between the ocular evidence and the medical evidence on

record.

19. PW-2, Ram Narayan Pandey stated in his

evidence that on the date of occurrence at about 10:00/11:00

P.M. he was on the roof of his room. He heard the sound of his

wife and sisters-in-law from the roof, then he saw Rajvansh

Pandey, Gopal Dubey and Ramjee Dubey jumped on the

courtyard of their house from the tiled roof. Both his wife and

sister-in-law raised hue and cry and they went inside the room

and closed the door. Thus, if the statement of PW-2 is believed
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to be true then, PW-1 and PW-4 did not see any occurrence,

again PW-4 is accepted as a truthful witness, the evidence of

PW-2 remains doubtful, because according to PW-4 he was

sleeping in his room and only after being called by his wife, he

woke up. In his examination-in-chief, he saw all the accused

persons, namely, Rajvansh Pandey, Ajay Kumar Pandey, Gopal

Dubey and Ramjee Dubey assaulting his father and brother with

the help of knives. However, from cross-examination in

paragraph-7 and paragraph-8 it is not possible for him to see

what had happened inside domuha of their house. From the

evidence of PW-3, Nirmal Pandey, it was clear that he has not

claimed himself to be an eye-witness, because he clearly stated

in examination-in-chief that out of fear he took shelter on the

western side of the room and when the appellants left, he came

out and found the dead bodies of the deceased. Mr. Jitendra

Singh, the learned Senior Counsel while adopting the argument

of Mr. Sanjay Singh, further refers to a few judgment, first he

refers to the decision of the Hon’ble Supreme Court in Md.

Jabbar Ali & Ors. v. State of Assam reported in (2023) 19 SCC

672. Relying on the decision of the Hon’ble Supreme Court in

Raju @ Balachandran & Ors. v. State of Tamil Nadu, (2012)

12 SCC 701, the Hon’ble Court observed as hereunder:-

“29.The sum and substance is that the
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evidence of a related or interested witness
should be meticulously and carefully
examined. In a case where the related and
interested witness may have some enmity
with the assailant, the bar would need to be
raised and the evidence of the witness would
have to be examined by applying a standard
of discerning scrutiny. However, this is only
a rule of prudence and not one of law, as
held in Dalip Singh [(1953) 2 SCC 36 : AIR
1953 SC 364 : 1953 Cri LJ 1465 : 1954 SCR
145] and pithily reiterated in Sarwan Singh
[(1976) 4 SCC 369 : 1976 SCC (Cri) 646] in
the following words: (Sarwan Singh case
[(1976) 4 SCC 369 : 1976 SCC (Cri) 646] ,
SCC p. 376, para 10)
“10. … The evidence of an interested
witness does not suffer from any infirmity as
such, but the courts require as a rule of
prudence, not as a rule of law, that the
evidence of such witnesses should be
scrutinised with a little care. Once that
approach is made and the court is satisfied
that the evidence of interested witnesses have
a ring of truth such evidence could be relied
upon even without corroboration.” "

20. Thus, the rule of appreciation of evidence of a

related witness or an interested witness does not mean that their

evidence is required to be discarded outright. As a rule of

caution and prudence the evidence of interested witnesses are

advised to be meticulously and carefully examined. In a case

where the related and interested witnesses may have some

enmity with the assailant, the bar would need to be raised and
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the evidence of witness would have to be examined by applying

standard of discerning scrutiny.

21. While scrutinizing the evidence on record of the

above named interested witnesses we find several discrepancies

as stated above in their evidence. These discrepancies can only

be dispelled out by the Investigating Officer. However,

unfortunately enough, the Investigating Officer has not been

examined. The rule of Investigating Officer in the instant case is

utterly unfortunate, if not callous. During investigation, he did

not seize the torchlights from the possession of PW-5 and PW-2.

He did not seize the blood stained wearing apparels. He also did

not try to seize the offending weapons. No sketch map of the

place of occurrence was prepared. Even broken tiles were also

not seized by him. It is true that evidence of Investigating

Officer is formal in nature, in many cases if the Investigating

Officer is not examined, the Court can come to a finding on the

basis of evidence available on record as to the fate of the case

itself. Further, where there are discrepancies, where there are

lack of proper investigation, examination of the I.O. is a must.

Mr. Jitendra Singh, the learned Senior Counsel refers to a

decision of the Hon’ble Supreme Court in the case of Munnalal

v. State of Uttar Pradesh reported in (2023) 18 SCC 661.

Paragraph 38, 39 and 40 are relevant for our purpose and quoted
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below:-

“ 38. First, statement of PW 3 under Section
161CrPC was recorded nearly 24 days after
the incident. Since the investigating officer
did not enter the witness box, the appellants
did not have the occasion to cross-examine
him and thereby elicit the reason for such
delay. Consequently, the delay in recording
the statement of PW 3 in course of
investigation, is not referred to and,
therefore, remains unjustified. The possibility
of PW 3, being fixed up as an eyewitness
later during the process of investigation,
cannot be totally ruled out.
39. Secondly, though PW 4 is said to have
reached the place of occurrence at 1.30 p.m.
on 5-9-1985 and recovered a bullet in the
blood oozing out from the injury at the hip of
the dead body, no effort worthy of
consideration appears to have been made to
seize the weapons by which the murderous
attack was launched. It is true that mere
failure/neglect to effect seizure of the
weapon(s) cannot be the sole reason for
discarding the prosecution case but the same
assumes importance on the face of the oral
testimony of the so-called eyewitnesses i.e.
PW 2 and PW 3, not being found by this
Court to be wholly reliable. The missing
links could have been provided by the
investigating officer who, again, did not
enter the witness box. Whether or not non-
examination of a witness has caused
prejudice to the defence is essentially a
question of fact and an inference is required
to be drawn having regard to the facts and
circumstances obtaining in each case. The
reason why the investigating officer could
not depose as a witness, as told by PW 4, is
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that he had been sent for training. It was not
shown that the investigating officer under no
circumstances could have left the course for
recording of his deposition in the trial court.
It is worthy of being noted that neither the
trial court nor the High Court considered the
issue of non-examination of the investigating
officer.
40. In the facts of the present case,
particularly conspicuous gaps in the
prosecution case and the evidence of PW 2
and PW 3 not being wholly reliable, this
Court holds the present case as one where
examination of the investigating officer was
vital since he could have adduced the
expected evidence. His non-examination
creates a material lacuna in the effort of the
prosecution to nail the appellants, thereby
creating reasonable doubt in the prosecution
case.”

In the instant case non-examination of the

Investigating Officer proves to be fatal for the prosecution.

22. The Trial Court convicted the appellants under

Section 302/34 of the I.P.C. Now, as a result of the application

of principles enunciated in Section 34, when an accused is

convicted under Section 302 read with Section 34, in law it

means that the accused is liable for the act which caused death

of the deceased in the same manner as if it was done by him

alone. The provision is intended to meet a case in which it may

be difficult to distinguish between acts of individual members of

a party who act in furtherance of common intention of all or to
Patna High Court CR. APP (DB) No.1295 of 2019 dt.03-07-2026
19/21

prove exactly what part was taken by each of them. In order to

bring home the charge of common intention, the prosecution has

to establish by evidence that there was a plan or meeting of

mind on all accused persons to commit the offence for which

they are charged with the aid of Section 34, be it clearance or in

the spur of the moment, but it must necessarily be before the

commission of the crime. It is not necessary that the acts of

several persons charged with commission of offence jointly

must be the same or identically similar. The acts may be

different in character, but, must have actuated by one and same

common intention in order to attract the provision. The decision

of the Hon’ble Supreme Court in Janak Singh & Anr. vs. The

State of U.P. reported in AIR 2004 SC 2495 may be relied on in

this regard.

23. The words in furtherance of common intention

of all have been introduced as an essentially part of the section,

the element of common intention prescribing the condition

under which each might be criminally liable when there are

several actress. Common intention is not an intention to commit

the crime actually committed and each accused persons can be

convicted of that crime, only if he has participated in the

common intention. Common intention implies pre-arranged plan

and acting in the concerned pursuant to the pre-arranged plan.
Patna High Court CR. APP (DB) No.1295 of 2019 dt.03-07-2026
20/21

24. In the instant case as appellant Gopal Dubey

and Rajvansh Pandey were armed with knives and it is found

from the medical evidence that the injuries sustained by the

deceased could not be committed by knife, then we have no

other alternative, but, to hold that these appellants did not take

part in committing physical injury to the deceased. Secondly,

from the evidence of the witnesses we find that some of them

only claimed that the accused persons entered inside domuha,

but, what they did, whether they had common intention to

commit murder of Kapil Deo and Mithilesh and whether death

was caused in furtherance of common object of all the persons

have not been true. We are not unmindful to note that one of the

accused was a minor and he was acquitted from the charge. He

was also one of the members of the assembly who entered inside

the domuha. Thus, when common intention was found to be not

proved in case of one accused, sharing of common intention or

in furtherance of common intention cannot be held to be proved

against these accused persons also.

25. In view of the above circumstances we are of

the view that the appellants are entitled to get benefit of doubt.

26. As a result, both the appeals are allowed on

contest.

27. The appellants be released at once if they are in
Patna High Court CR. APP (DB) No.1295 of 2019 dt.03-07-2026
21/21

custody and not wanted in any other case.

28. Issue release order at once.

(Bibek Chaudhuri, J)

(Rana Vikram Singh, J)
Supratim/Smriti-
AFR/NAFR NAFR
CAV DATE NA
Uploading Date 08.07.2026
Transmission Date NA

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