CHHOTA AHIRWARversusTHE STATE OF MADHYA PRADESH

776                      [2020]REPORTS
               SUPREME COURT    3 S.C.R. 776                 [2020] 3 S.C.R.


A                             CHHOTA AHIRWAR
                                         v.
                     THE STATE OF MADHYA PRADESH
                        (Criminal Appeal No. 238 of 2011)
B                             FEBRUARY 06, 2020
          [INDIRA BANERJEE AND S. RAVINDRA BHAT, JJ.]
             Penal Code, 1860: ss.307/34 – Attempt to murder with
      common intent – Applicability of s.34 – Prosecution case was that
      PW-3-complainant, the accused appellant and the main accused
C
      were related to each other – There was previous enmity between
      them over land dispute – On the fateful day, when PW-3 was on his
      way, he was stopped by accused appellant and told not to cultivate
      his land – Quarrel started between PW-3 and accused appellant –
      The main accused also came and intervened, whereupon PW-3 told
D     him, not to interfere and to go home, as he was in no way concerned
      with the dispute – Thereafter, the main accused took out a pistol
      from the right pocket of his pants and pointed it at him – PW-3 told
      the main accused not to open fire, whereupon the accused appellant
      urged the main accused to kill PW-3 – Thereafter, the main accused
      fired the pistol, causing injury to PW-3 with the splinters – Trial
E
      court convicted the accused appellant under ss. 307/34 and main
      accused under s.307 – High Court upheld the same – On appeal,
      held: To attract s.34, no overt act is needed on the part of the accused
      if they share common intention with others in respect of the ultimate
      criminal act, which may be done by any one of the accused sharing
F     such intention – Common intention implies acting in concert –
      Existence of a prearranged plan has to be proved either from the
      conduct of the accused, or from circumstances or from any
      incriminating facts – Prosecution was not able to establish a pre-
      arranged common intention between the accused appellant and the
      main accused to kill PW-3 in pursuance of which the main accused
G
      open fired from his pistol – The circumstances established suggested
      that intervention by the main accused was by chance – There were
      some notable discrepancies between the evidence of PW-3 and
      PW-4 which raised serious doubts with regard to the truth and/or
      accuracy of their evidence particularly in view of the enmity and
H
                                        776
 CHHOTA AHIRWAR v. THE STATE OF MADHYA PRADESH                            777


pre-existing family disputes between the parties – Prosecution            A
miserably failed to establish any common, premeditated or
prearranged intention jointly of the accused appellant and the main
accused to kill PW-3, on the spot or otherwise – Prosecution also
failed to prove that the pistol was fired at the exhortation of the
accused appellant – Trial court and High Court both fell in error in
                                                                          B
convicting the accused appellant – Accused appellant entitled to
acquittal.
       Penal Code, 1860: s.34 – Common intention – It is a settled
principle of criminal law that only the person who actually commits
the offence can be held guilty and sentenced in accordance with
law – However, s.34 lays down a principle of joint liability in a         C
criminal act, the essence of which is to be found in the existence of
common intention, instigating the main accused to do the criminal
act, in furtherance of such intention – Even when separate acts are
done by two or more persons in furtherance of a common intention,
each person is liable for the result of all the acts as if all the acts   D
had been done by all of these persons.
      Allowing the appeal, the Court
       Held: 1. It is not in dispute that the accused appellant
neither carried arms nor opened fire. In cross-examination
PW-3 admitted that he had not in his statement to the police under        E
Section 161, Cr.PC stated anything about any instigation by the
accused appellant to the main accused. The Sessions Court
overlooked certain serious discrepancies between the evidence
of PW-4 and the evidence of PW-3 with regard to the alleged role
of the accused appellant. While PW-3, himself the injured witness,        F
deposed that the accused appellant exhorted the main accused
to kill him, after the main accused had pointed the pistol at PW-3,
PW-4 had deposed that on being told by the accused appellant to
beat PW-3, the main accused took out the pistol from the right
pocket of his pant and fired. [Paras 16, 17][784 A-F]
                                                                          G
      2.1 It is a settled principle of criminal law that only the
person who actually commits the offence can be held guilty and
sentenced in accordance with law. However, Section 34 lays down
a principle of joint liability in a criminal act, the essence of which

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778            SUPREME COURT REPORTS                        [2020] 3 S.C.R.


A     is to be found in the existence of common intention, instigating
      the main accused to do the criminal act, in furtherance of such
      intention. Section 34 is only a rule of evidence which attracts the
      principle of joint criminal liability and does not create any distinct,
      substantive offence. [Paras 21, 22][785 D-F]
B           B.N. Srikantiah v. Siddiah AIR 1958 SC 672 : [1959]
            SCR 496; Bharwad Mepa Dana and Anr. v. State of
            Bombay AIR 1960 SC 289 : [1960] 2 SCR 172;
            Harbans Kaur and Another v. State of Haryana (2005)
            9 SCC 195 : [2005] 2 SCR 450 – relied on.
C            2.2 Common intention can only be inferred from proved
      facts and circumstances. Of course, the common intention can
      develop during the course of an occurrence. The essence of
      liability under Section 34 is simultaneous consensus of the minds
      of persons participating in the criminal act to bring about a
      particular result, which consensus can even be developed at the
D     spot. Common intention implies acting in concert. Existence of a
      prearranged plan has to be proved either from the conduct of the
      accused, or from circumstances or from any incriminating facts.
      It is not enough to have the same intention independently of each
      other. [Paras 23-24, 27][785-G-H; 786 B-C, G-H]
E           Manik Das & Ors. v. State of Assam AIR 2007 SC
            2274 : [2007] 7 SCR 863; Abdul Mannan v. State of
            Assam (2010) 3 SCC 381 : [2010] 2 SCR 1030; Lallan
            Rai & Ors. v. State of Bihar (2003) 1 SCC 268 : [2002]
            4 Suppl. SCR 188; Ashok Basho (2010) SCC 660 (669);
F           Barendra Kumar Ghosh AIR 1925 Privy Council 1 –
            relied on.
            3. The Prosecution was not able to establish a pre-arranged
      common intention between the accused appellant and the main
      accused to kill the complainant in pursuance of which the accused
G     open fired from his pistol. The circumstances established suggest
      that intervention by the main accused was by chance. The main
      accused chanced to stop as he was passing by the place of
      occurrence when the accused appellant and the complainant were
      quarrelling. As per the evidence of the complainant, who is a

H
 CHHOTA AHIRWAR v. THE STATE OF MADHYA PRADESH                          779


injured witness, when the complainant told the main accused not         A
to intervene and to go home, reacted by taking out the pistol
from his right pant pocket and pointing it at the complainant. The
pistol was taken out by the main accused and pointed at
complainant without any instigation from the accused appellant.
Even if it is accepted that the accused appellant uttered the words
                                                                        B
attributed to him by the complainant (PW-3) in his evidence, this
seems to have been done on the spur of the moment.
Pre-arrangement is not established. There are some notable
discrepancies between the evidence of the complainant (PW-3)
and PW-4 which raise serious doubts with regard to the truth
and/or accuracy of their evidence particularly in view of the enmity    C
and pre-existing family disputes between the parties. Even though
PW-5 may have been declared hostile, his evidence is not to be
rejected with in its entirely. This witness also confirmed that there
was an altercation between the accused appellant and the
complainant, in which the main accused intervened, took out his
                                                                        D
pistol and aimed it at the complainant. These facts are
corroborated by PW-3 and PW-4. This witness however stated
that the main accused took out his pistol and threatened to kill
the complainant. He did not say that the accused appellant urged
the main accused to shoot. [Para 28][787 A-H; 788 A-B]
      4. Even though there may be some evidence that the main           E
accused took out a pistol and opened fire, the prosecution
miserably failed to establish any common, premeditated or
prearranged intention jointly of the accused appellant and the
main accused to kill the complainant, on the spot or otherwise.
The Prosecution also failed to prove that the pistol was fired at       F
the exhortation of the accused appellant. The accused appellant
is acquitted and directed to be set free forthwith. [Paras 29-
30][788 B-C; D-E]
                       Case Law Reference
[1959] SCR 496                  relied on            Para 22            G
[1960] 2 SCR 172                relied on            Para 22
[2005] 2 SCR 450                relied on            Para 22

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780             SUPREME COURT REPORTS                            [2020] 3 S.C.R.


A     [2007] 7 SCR 863                    relied on                Para 23
      [2010] 2 SCR 1030                   relied on                Para 23
      [2002] 4 Suppl. SCR 188             relied on                Para 24
      (2010) SCC 660                      relied on                Para 26
B           CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.
      238 of 2011.
           From the Judgment and Order dated 05.11.2008 of the High Court
      of Madhya Pradesh at Jabalpur in Criminal Appeal No. 1050 of 1994.
             Saurabh Mishra and P. V. Yogeswaran, Advs. for the Appellant.
C
           Rahuk Kaushik, Ms. Bhuvneshwari Pathak, Ms. Shilpi Satyapriya
      Satyam and Rahul Khatri, Advs. for the Respondent.
             The Judgment of the Court was delivered by
             INDIRA BANERJEE, J.
D
             1. This appeal is against a judgment and order dated 5th November,
      2008 passed by the High Court of Madhya Pradesh at Jabalpur, dismissing
      Criminal Appeal No.1050 of 1994 filed by the appellant, and upholding
      the judgment dated 26th August, 1994 passed by the Additional Sessions
      Judge, District Panna, Madhya Pradesh in Sessions Case No. 13/1993,
E     inter alia, convicting the accused appellant of offence under Section
      307 read with Section 34 of the Indian Penal Code.
              2. The accused appellant was tried by the Sessions Court, on
      charges under Section 307/34 of the Indian Penal Code, for attempt,
      with common intent along with the main accused Khilai, to murder the
F     complainant and for instigating the said accused Khilai to fire at the
      complainant with a country made pistol, in furtherance of a common
      intent to kill the complainant.
             3. In a nutshell, the case of the Prosecution is that, on 22nd October,
      1992 at about 11.00 a.m., there was a quarrel between the accused
G     appellant and the complainant, in which the said accused Khilai intervened.
      The said accused Khilai who had joined the accused appellant and the
      complainant, took out a country made pistol from the pocket of his
      trousers, pointed it towards the complainant and fired at the instigation
      of the accused appellant, who urged the said accused Khilai to kill the
H
 CHHOTA AHIRWAR v. THE STATE OF MADHYA PRADESH                                781
              [INDIRA BANERJEE, J.]

complainant. The complainant, therefore, sustained injuries on his            A
forehead near his eye and on his lips and shoulder with splinters from
the pistol and started bleeding. It is the further case of the Prosecution,
that after the firing, the accused Khilai fled the scene of occurrence and
the accused appellant followed him. Immediately thereafter, the
complainant reported the incident at the Mohandra Chowki. The report
                                                                              B
was forwarded to the Simariya Police station where Crime No.110/1992
was registered.
       4. After investigation, Chargesheet was filed against the accused
appellant and the main accused Khilai, both of whom pleaded ‘Not Guilty”
and claimed to be tried. To establish the charges framed against the
accused, the Prosecution examined 11 witnesses. The accused appellant         C
did not examine any witness nor did the main accused, Khilai.
      5. By a judgment dated 26th August, 1994, the Additional Sessions
Judge, Panna held the accused appellant guilty of offence under Section
307/34 of the Indian Penal Code and the main accused Khilai guilty of
offence under Section 307 of the Indian Penal Code. By an order of            D
sentence passed on the same day the accused appellant was sentenced
to undergo rigorous imprisonment for five years in addition to fine of
Rs.1000/-.
      6. Being aggrieved by the aforesaid judgment of conviction and
order of sentence, the accused appellant appealed to the High Court.          E
The said appeal being Criminal Appeal No. 1050 of 1994 has been
dismissed by the judgment and order impugned in this appeal.
      7. The accused appellant, the main accused, Khilai, and the
complainant were all related. Sunder Lal, father of the main accused
Khilai and uncle of the complainant, had given his share of land to the       F
accused appellant for cultivation. There were land disputes between
members of the family and in particular between the complainant and
the accused appellant.
      8. Of the eleven witnesses examined by the Prosecution, the first
Prosecution Witnesses (PW-1) only gave evidence of preparation of a           G
sketch map at the place of occurrence and the second Prosecution
Witness (PW-2) testified to the receipt of case records in the office of
the District Magistrate. The Sixth Prosecution Witness (PW-6) only
witnessed the preparation of the site map of the place of occurrence,
recovery of an iron splinter and some blood stained clothes and articles.
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782             SUPREME COURT REPORTS                           [2020] 3 S.C.R.


A     Three witnesses, that is, the 5th, 9th and 10th witnesses (PW-5, PW-9,
      PW-10) did not support the case made out by the Prosecution and were
      declared hostile. The ninth and tenth Prosecution Witnesses who were
      produced to testify to the confession allegedly made by the main accused
      Khilai in their presence, leading to recovery of the weapon, categorically
      denied their presence at the time of recovery of the pistol and were
B
      declared hostile. They also denied that the main accused Khilai had
      made any confession. The 11th Prosecution Witness (PW-11) only testified
      to the arrest of the accused appellant. The evidence of these witnesses
      is of no relevance to the guilt of the accused appellant.
             9. The 8th Prosecution Witness (PW-8) who had been working as
C     Assistant Surgeon at the Primary Health Centre, Mohandra described
      the wounds found on the body of the complainant and opined that the
      injuries were caused by splinters from a firearm. In cross examination
      he said that no splinters were found from the injury during examination.
      The evidence of this witness suggests that the injuries could have been
D     caused by firing a pistol. He ruled out the possibility of the injury having
      been caused as a consequence of explosion of stone. At the highest, the
      evidence of PW-8 establishes that a pistol was fired, as a result of which
      the complainant sustained injuries. The possibility of the injuries being
      sustained while cleaning the pistol was not ruled out by this witness.
      This witness has also not said anything relevant to the guilt of the accused
E     appellant.
            10. The 7th Prosecution Witness (PW-7) was the Investigating
      Officer, who deposed that he had sent the report of the incident to the
      Simaria Police Station on the basis of which criminal case No.110/1992
      under Section 307/34 of the Indian Penal Code had been registered and
F     had examined the complainant, Prem Shankar Kateha (PW-4), Sabbu
      Chourasia and Bharat and had seized blood stained clothes, articles etc.
      from the place of occurrence.
            11. There is nothing in the evidence of PW-1, PW-2, PW-5, PW-
      6, PW-7, PW-8, PW-9, PW-10 and PW-11 to establish the guilt of the
G     accused appellant. The complainant, a cousin of the main accused Khilai,
      and an injured witness deposed as the 3rd Prosecution Witness (PW-3).
      PW-3 stated that on 22nd October, 1992, at about 11.00 O’Clock, when
      he was going to Khareja from his house, the accused appellant stopped
      him on the way and told him not to cultivate his land. The main accused
H     Khilai also came and intervened, whereupon the complainant told the
 CHHOTA AHIRWAR v. THE STATE OF MADHYA PRADESH                                783
              [INDIRA BANERJEE, J.]

main accused Khilai, not to interfere and to go home, as he was in no         A
way concerned with the dispute between the complainant (PW-3) and
the accused appellant.
       12. The complainant (PW-3) deposed that on being told to go
home, the main accused Khilai took out a pistol from the right pocket of
his pants and pointed it at him. The complainant (PW-3) told the main         B
accused Khilai not to open fire, whereupon the accused appellant urged
the main accused Khilai to kill the complainant (PW-3). Thereafter, the
main accused, Khilai fired the pistol, causing injury to the complainant
with the splinters. The complainant (PW-3) further stated that the incident
took place in the presence of Prem Shankar Kateha who desposed as
the fourth witness for the Prosecution (PW-4) who was there at the            C
place of occurrence and also in the presence of Sabbu Chourasia who
had been selling oil and Bharat Kateha who had been helping in arranging
the cans of oil.
      13. According to the complainant (PW-3), the aforesaid three
persons, Prem Shankar Kateha (PW-4), Sabbu Chourasia and Bharat               D
Kateha challenged the main accused Khilai, whereupon Khilai fled
towards the bus stand and the accused appellant followed him running.
      14. From the evidence of the complainant (PW-3), it transpires
that when heated arguments were going on and the complainant (PW-3)
urged the main accused not to interfere as he was in no way concerned,        E
the main accused Khilai took out a pistol from the pocket of his trousers
and pointed it towards the complainant (PW-3). When the complainant
(PW-3) told the main accused Khilai not to fire, the accused appellant
exhorted the accused Khilai to kill the complainant. The complainant
(PW-3) said that the main accused Khilai, thereafter, fired at him.           F
       15. The evidence of the complainant (PW-3) indicates the
existence of serious disputes between the appellant and the accused,
and/or the immediate members of their respective families. In his cross-
examination the complainant (PW-3) admitted that one year before the
incident his uncle Sunder Lal, that is, father of the main accused Khilai,    G
had filed an application against the complainant (PW-3) and his father
Asha Ram at Tehsil office, Pawai regarding the land in dispute. The
complainant (PW-3) deposed that at the time of the incident his uncle
Sunder Lal had given his share to the accused appellant on ‘Batai’ for
cultivation. He stated that the share of his uncle Sunder Lal, which was
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784            SUPREME COURT REPORTS                          [2020] 3 S.C.R.


A     given to the accused appellant on ‘Batai’, was adjacent to his share of
      land. The complainant (PW-3) also admitted in cross-examination that
      on the basis of a report filed by the main accused, Khilai, and his father
      Sunder Lal, a case has been registered under the complainant (PW-3)
      and his younger brother Buttu in the court of Judicial Magistrate, Pawai
      under Sections 379 and 447 of the Indian Penal Code. The case was
B
      filed before the incident. The complainant (PW-3) also admitted that
      there were several other cases between the complainant (PW-3) and/or
      members of his immediate and the accused appellant as also members
      of the accused appellant’s family which were still pending at the time of
      the incident.
C            16. It is not in dispute that the accused appellant neither carried
      arms nor opened fire. The accused appellant is alleged to have instigated
      the opening of fire. In cross-examination the complainant (PW-3) admitted
      that he had not in his statement to the police under Section 161 of the
      Cr.PC stated anything about any instigation by the accused appellant to
D     the main accused Khilai.
              17. The Sessions Court has apparently proceeded on the basis
      that PW-4, eye witness to the incident had corroborated the evidence of
      the complainant (PW-3). The Sessions Court however overlooked certain
      serious discrepancies between the evidence of PW-4 and the evidence
E     of the complainant (PW-3) with regard to the alleged role of the accused
      appellant. While the complainant (PW-3), himself the injured witness,
      has deposed that the accused appellant exhorted the main accused Khilai
      to kill him, after the main accused Khilai had pointed the pistol at the
      complainant (PW-3), PW-4 had deposed that on being told by the accused
      appellant to beat the complainant (PW-3), the main accused Khilai took
F     out the pistol from the right pocket of his pant and fired.
             18. From the evidence of PW-4 it also transpires that the accused-
      appellant and the complainant (PW-3) were quarrelling over a land related
      dispute. The accused appellant asked the complainant (PW-3) not to go
      to the field, whereupon the complainant retorted that the land belonged
G     to his grandparents, and that no one could stop him from going there.
      The heated quarrel, with raised voices, attracted attention and about 50/
      60 villagers gathered at the place of occurrence. The main accused,
      Khilai, who was cycling by the place of occurrence, stopped and asked
      the complainant, PW-3 why he was going to the field whereupon the
H     accused appellant told the main accused Khilai that the complainant
 CHHOTA AHIRWAR v. THE STATE OF MADHYA PRADESH                                  785
              [INDIRA BANERJEE, J.]

would not easily give up and urged the main accused to beat him. At this        A
point, the main accused Khilai took out the pistol from his pocket.
       19. PW-5, who was declared hostile has confirmed that there
was an altercation between the complainant and the accused appellant.
According to this appellant, the main accused Khilai came and
intervened. The main accused Khilai hurled abuses at the complainant,           B
took out his pistol from his pocket and threatened to kill the complainant
if he went to the field. Thereafter the main accused went to the back of
the house, after which the sound of firing was heard. PW-5 did not say
that the accused appellant instigated the main accused Khilai to shoot.
       20. It is not in dispute that the accused appellant did not open fire.   C
The Prosecution has alleged that it was the main accused Khilai who
had fired from his pistol and injured the complainant. The question is
whether, having regard to the facts established by the Prosecution, the
appellant could have been held guilty of offence under Section 307 by
invocation of Section 34 of the Indian Penal Code.
                                                                                D
        21. It is a settled principle of criminal law that only the person
who actually commits the offence can be held guilty and sentenced in
accordance with law. However, Section 34 lays down a principle of joint
liability in a criminal act, the essence of which is to be found in the
existence of common intention, instigating the main accused to do the
criminal act, in furtherance of such intention. Even when separate acts         E
are done by two or more persons in furtherance of a common intention,
each person is liable for the result of all the acts as if all the acts had
been done by all of these persons.
       22. Section 34 is only a rule of evidence which attracts the principle
of joint criminal liability and does not create any distinct, substantive       F
offence as held by this Court in B.N. Srikantiah vs. Siddiah reported
in AIR 1958 SC 672; Bharwad Mepa Dana and Anr. Vs. State of
Bombay reported in AIR 1960 SC 289 and other similar cases. To
quote Arijit Pasayat, J. in Harbans Kaur and Another vs. State of
Haryana reported in (2005) 9 SCC 195; the distinctive feature of                G
Section 34 is the element of participation in action.
       23. Common intention can only be inferred from proved facts and
circumstances as held by this Court in Manik Das & Ors. vs. State of
Assam reported in AIR 2007 SC 2274. Of course, as held in Abdul
Mannan vs. State of Assam reported in (2010) 3 SCC 381, the common
                                                                                H
intention can develop during the course of an occurrence.
786             SUPREME COURT REPORTS                            [2020] 3 S.C.R.


A            24. Section 34 is only attracted when a specific criminal act is
      done by several persons in furtherance of the common intention of all, in
      which case all the offenders are liable for that criminal act in the same
      manner as the principal offender as if the act were done by all the
      offenders. This Section does not whittle down the liability of the principal
      offender committing the principal act but additionally makes all other
B
      offenders liable. The essence of liability under Section 34 is simultaneous
      consensus of the minds of persons participating in the criminal act to
      bring about a particular result, which consensus can even be developed
      at the spot as held in Lallan Rai & Ors. vs. State of Bihar reported in
      (2003) 1 SCC 268. There must be a common intention to commit the
C     particular offence. To constitute common intention, it is absolutely
      necessary that the intention of each one of the accused should be known
      to the rest of the accused.
             25. Mere participation in crime with others is not sufficient to
      attribute common intention. The question is whether, having regard to
D     the facts and circumstances of this case, it can be held that the Prosecution
      established that there was a common intention between the accused
      appellant and the main accused Khilai to kill the complainant. In other
      words, the Prosecution is required to prove a premeditated intention of
      both the accused appellant and the main accused Khilai, to kill the
      complainant, of which both the accused appellant and the main accused
E     Khilai were aware. Section 34 of the Indian Penal Code, is really intended
      to meet a case in which it is difficult to distinguish between the acts of
      individual members of a party and prove exactly what part was played
      by each of them.
             26. To attract Section 34 of the Indian Penal Code, no overt act is
F     needed on the part of the accused if they share common intention with
      others in respect of the ultimate criminal act, which may be done by any
      one of the accused sharing such intention [see Ashok Basho (2010)
      SCC 660 (669)]. To quote from the judgment of the Privy Council in
      the famous case of Barendra Kumar Ghosh reported in AIR 1925
G     Privy Council 1, “they also serve who stand and wait”.
            27. Common intention implies acting in concert. Existence of a
      prearranged plan has to be proved either from the conduct of the accused,
      or from circumstances or from any incriminating facts. It is not enough
      to have the same intention independently of each other.
H
 CHHOTA AHIRWAR v. THE STATE OF MADHYA PRADESH                                787
              [INDIRA BANERJEE, J.]

       28. The question in this case is, whether the Prosecution has been     A
able to establish a pre-arranged common intention between the accused
appellant and the main accused Khilai to kill the complainant in pursuance
of which the accused Khilai open fired from his pistol. The answer to
the aforesaid question has to be in the negative for the following reasons:
        (i) A quarrel broke out between the accused appellant and the         B
complainant. When the accused appellant tried to prevent the complainant
from going to the field, the complainant insisted on doing so. While the
quarrel was going on, the main accused Khilai arrived at the spot and
intervened whereupon the complainant told him off, saying he should go
home as he was in no way concerned with the dispute. At this, the main
accused Khilai brought out a pistol from his right pant pocket and aimed      C
it at the complainant.
      (ii) There is no evidence to establish any pre-arrangement to
converge at the place of occurrence. The circumstances established
suggest that intervention by the main accused Khilai was by chance.
The main accused Khilai chanced to stop as he was passing by the              D
place of occurrence when the accused appellant and the complainant
were quarrelling.
       (iii) As per the evidence of the complainant, who is a injured
witness, when the complainant told the main accused Khilai not to
intervene and to go home, Khilai reacted by taking out the pistol from        E
his right pant pocket and pointing it at the complainant. The pistol was
taken out by the main accused and pointed at Khilai, without any
instigation from the accused appellant.
        (iv) Even if it is accepted that the accused appellant uttered the
words attributed to him by the complainant (PW-3) in his evidence, this       F
seems to have been done on the spur of the moment. Pre-arrangement
is not established.
       (v) As observed above, there are some notable discrepancies
between the evidence of the complainant (PW-3) and PW-4 which raise
serious doubts with regard to the truth and/or accuracy of their evidence     G
particularly in view of the enmity and pre-existing family disputes between
the parties.
      (vi) Even though PW-5 may have been declared hostile, his
evidence is not to be rejected with in its entirely. This witness also
confirmed that there was an altercation between the accused appellant         H
788              SUPREME COURT REPORTS                          [2020] 3 S.C.R.


A     and the complainant, in which the main accused Khilai intervened, took
      out his pistol and aimed it at the complainant. These facts are corroborated
      by PW-3 (the Complainant) and PW-4. This witness however stated
      that the main accused Khilai took out his pistol and threatened to kill the
      complainant. He did not say that the accused appellant urged the main
      accused, Khilai to shoot.
B
             29. Even though there may be some evidence that the main accused
      took out a pistol and opened fire, the Prosecution has miserably failed to
      establish any common, premeditated or prearranged intention jointly of
      the accused appellant and the main accused Khilai to kill the complainant,
      on the spot or otherwise. The Prosecution has also failed to prove that
C     the pistol was fired at the exhortation of the accused appellant. In our
      considered view, the Sessions Court and the High Court both fell in error
      in convicting the accused appellant.
              30. For the reasons discussed above, the appeal is allowed. The
      judgment and order of the High Court under appeal, confirming the
D     judgment and order of the conviction of the Sessions Court as also the
      judgment and order of the Sessions Court are set aside, as against the
      accused appellant. The accused appellant is acquitted and directed to be
      set free forthwith. It is made clear that this Court has not considered the
      merits of the conviction of the main accused Khilai and the appeal, if
E     any, filed by the main accused Khilai shall be decided on its own merits.


      Devika Gujral                                                 Appeal allowed.



F




G




H