Holding

The conviction of the appellant under Sections 302, 394, 460 IPC read with Section 34 is unsustainable due to insufficient evidence, and the appellant is acquitted.

Summary

The appellant Sonu @ Sunil was convicted along with four others for the robbery and murder of Bharosilal in September 2008, based largely on circumstantial evidence, the recovery of a mobile phone from his possession, and the testimony of a witness (PW‑5) who claimed to have overheard a conspiracy. The prosecution alleged a common intention under Section 34 of the IPC, linking the murder to the robbery, and relied on the recovery of stolen jewellery and a knife from co‑accused, but no direct evidence linked the appellant to the crime. The Supreme Court examined the tests for presuming guilt from possession of stolen property under Section 114 of the Evidence Act and the requirements for establishing common intention under Section 34. It found that the appellant offered no explanation for the mobile phone, the recovery was doubtful, PW‑5 did not name him, and no test identification parade was conducted. Consequently, the Court held that the chain of circumstantial evidence was incomplete and the appellant was entitled to the benefit of doubt. The conviction was set aside and the appellant acquitted.

Issues considered

The adequacy of the mobile phone recovery as evidence of the appellant's participation in the robbery and murder.
Whether a common intention under Section 34 IPC can be inferred when the appellant's involvement is not proven.
The applicability of the presumption under Section 114 of the Evidence Act to possession of stolen property.
The impact of the absence of a test identification parade on the reliability of the identification of the appellant.
Whether the circumstantial evidence presented forms a complete chain sufficient to sustain conviction.

Legislation cited

Code of Criminal Procedure, 1973s. 313
Indian Evidence Act, 1872s. 114, s. 27
Indian Penal Code, 1860s. 302, s. 34, s. 394, s. 397, s. 460
Madhya Pradesh Dakaiti Avam Vyapharan Adhiniyam, 1981s. 11, s. 13

Subjects

murderrobberycommon intentionSection 34 IPCcircumstantial evidencepresumption under Section 114 Evidence Actidentification parademobile phone recoverybenefit of doubt

Judgment

[2020] 4 S.C.R. 269 269

SONU @ SUNIL A
v.
STATE OF MADHYA PRADESH
(Criminal Appeal No.57 of 2013)
MAY 29, 2020 B
[SANJAY KISHAN KAUL AND K.M. JOSEPH, JJ.]
Penal Code, 1860: ss.394, 460, 302 r/w s.34 – Robbery and
murder – Five accused including appellant – Case based on
circumstantial evidence – Prosecution case was that the victim-
C
deceased resided alone in his house – On 9.9.2008, son of the
deceased (PW- 9) received information that his father had not opened
the door on that day – PW-9 went to his father’s residence and
found him dead – Certain articles were missing from the almirah in
the house of deceased – On the basis of investigation, four accused
and appellant were charged with the offence of robbery and murder D
– Appellant was charged under s.397 and under ss.11 and 13 of
Madhya Pradesh Adjiniyam also – Knife and other valuable articles
were recovered from the co-accused – Appellant was arrested two
months after the incident and a mobile phone was recovered from
him – Courts below relied upon the evidence of PW-5 who allegedly
E
overheard the conversation between the five accused regarding
conspiracy to commit robbery in the house of deceased – Conviction
of all the accused including appellant – On appeal, held: Appellant,
along with the others, were charged under the offences with the aid
of s.34 – The common intention must be for the very offence which
the accused is charged with – The finding by trial court in this case F
was that there was a criminal conspiracy hatched to commit robbery
– Though there was a charge of causing death by strangulation,
the finding was that the death was caused as a result of the injuries
inflicted with the knife – The knife was, apparently, carried and
wielded by the co-accused – In fact, the recovery of the knife was
G
also effected from co- accused – Thus, guilt of appellant was based
only on the recovery of the mobile phone where the recovery itself
suffered from suspicion and doubt – There was discrepancy about
the number of mobile missing and mobile recovered from the appellant
– PW-5 had not taken name of the appellant – Essentially, evidence
of PW-5 and the recovery was relied on to hold that the chain of H
269
270 SUPREME COURT REPORTS [2020] 4 S.C.R.

A circumstances was complete – Appellant was not mentioned as one
of the persons who used to visit the deceased’s father though three
of the other accused were named – Moreover, no Test Identification
Parade was conducted – Thus, appellant is entitled to benefit of
doubt – Conviction of appellant set aside – Madhya Pradesh Dakaiti
Avam Vyapharan Adhiniyam, 1981 – ss.11 and 13 – Evidence Act,
B
1872 – s.114.
Allowing the appeal, the Court
HELD: 1.1 In the case of recovery of an article from an
accused person when he stands accused of committing offences
C other than theft also, (in this instance murder), the tests are:
The first thing to be established is that the theft and murder forms
part of one transaction. The circumstances may indicate that the
theft and murder must have been committed at the same time.
But it is not safe to draw the inference that the person in
possession of the stolen property was the murderer; the nature
D of the stolen article; the manner of its acquisition by the owner;
the nature of evidence about its identification; The manner in
which it was dealt with by the accused; the place and the
circumstances of its recovery; the length of the intervening period;
ability or otherwise of the accused to explain its possession. In
E this case, applying the tests, it is found that the appellant has not
given any explanation as to how he came by possession of the
mobile. He has no explanation in his questioning under Section
313 of the Code of Criminal Procedure, 1973; As far as length of
the intervening period is concerned, recovery was effected on
02.11.2008 whereas the date of the incident is 08.09.2008. That
F means, a gap of less than two months. The arrest of the appellant
was effected on 01.11.2008, i.e., a day before the recovery; as far
as nature of the article is concerned, it was a mobile phone which
was capable of being transferred by mere delivery. No doubt, it
would contain a sim which may connect the phone with the
G previous owner or person in possession. It is also common
knowledge, however, that it may be open to the person, who
possesses the mobile, to equip it with a new sim. It is not in
dispute that the two mobile phones were kept and they were not
mixed with any other similar looking mobile phones. [Paras 28,
29][290-D-H; 291-A-E]
H
SONU @ SUNIL v. STATE OF MADHYA PRADESH 271

Baiju v. State of Madhya Pradesh AIR 1978 SC 522 : A
[1978] 2 SCR 594; Shri Bhagwan v. State of Rajasthan
AIR 2001 SC 2342 : [2001] 3 SCR 656 – relied on.
1.2 The appellant, along with the others, were charged under
the offences with the aid of Section 34 of the IPC. The finding by
the Trial Court in this case is that there was a criminal conspiracy B
hatched to commit robbery. As far as Section 34 is concerned, it
proclaims the principle of vicarious criminal liability. The soul of
the Section, and the principle which underlies criminal liability
for the acts of another therein, is the shared intention or the
common intention to commit an offence. The common intention
must be for the very offence which the accused is charged with. C
In this case, that though there is a charge of causing death by
strangulation, the finding is that the death was caused as a result
of the injuries inflicted with the knife. The knife was, apparently,
carried and wielded by the co-accused. From him, in fact, the
recovery of the knife was also effected which becomes all the D
more reason to conclude that it will be totally unsafe to convict
the appellant of the charges of which he is found guilty including
Section 302 of the IPC based only on the recovery of the mobile
phone where the recovery itself suffers from suspicion and doubt.
Thus, in this case, as far as the appellant is concerned, the
evidence against him essentially consists of the recovery of the E
mobile phone and there is discrepancy about the number. PW5
has not taken the name of the appellant. Essentially evidence of
PW5 and the recovery is relied on to hold that the chain of
circumstances is complete. The appellant is not mentioned as
one of the persons who used to visit the deceased’s father though F
three of the other accused were named. No Test Identification
Parade was conducted for the accused. In the facts of this case, it
would not be safe to uphold the conviction of the appellant. He
would be entitled to the benefit of doubt. [Paras 30, 34, 35][291-
F-H; 292-A-B; 294-D-F]
G
Hardev Singh and others v. State of Punjab AIR 1975
SC 179; Arun v. State by Inspector of Police, Tamil Nadu
(2008) 15 SCC 501 : [2008] 17 SCR 279; Dharam Pal
v. State of Haryana (1978) 4 SCC 440 : Brijlal Pd.
Sinha v. State of Bihar (1998) 5 SCC 699 : [1998] 3
H
272 SUPREME COURT REPORTS [2020] 4 S.C.R.

A SCR 529; Girija Shankar v. State of U.P. (2004) 3 SCC
793 : [2004] 2 SCR 73 – relied on.
Ashish Jain v. Makrand Singh and others (2019) 3 SCC
770 : [2019] 1 SCR 345; Sunder Lal alias Sundera v.
State of Madhya Pradesh AIR 1954 SC 28; Sanwant
B Khan and another v. State of Rajasthan AIR 1956 SC
54 – referred to.
Case Law Reference
[2019] 1 SCR 345 referred to Para 20

C AIR 1954 SC 28 referred to Para 23
AIR 1956 SC 54 referred to Para 24
[1978] 2 SCR 594 relied on Para 25
[2001] 3 SCR 656 relied on Para 26
D AIR 1975 SC 179 relied on Para 30
[2008] 17 SCR 279 relied on Para 30
(1978) 4 SCC 440 relied on Para 31
[1998] 3 SCR 529 relied on Para 32
E [2004] 2 SCR 73 relied on Para 33
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal
No. 57 of 2013.
From the Judgment and Order dated 21.02.2012 of the High Court
of Madhya Pradesh, Bench at Gwalior in Criminal Appeal No. 455 of
F
2011.
Anukulchandra Padhan, Sr. Adv., Md. Farman, Salman Khan,
Advs. for the Appellant.
R.K. Rathore, Harsh Parasher, Mrs. Swarupama Chaturvedi,
G Advs. for the Respondent.
The Judgment of the Court was delivered by

H
SONU @ SUNIL v. STATE OF MADHYA PRADESH 273

K. M. JOSEPH, J. A
1. The appellant was tried with 4 others and was convicted under
Sections 394, 460 and 302 read with Section 34 of the Indian Penal
Code, 1860 (hereinafter referred to as, ‘the IPC’, for short). He was
also found guilty of offences under Sections 11 and 13 of the Madhya
Pradesh Dakaiti Avam Vyapharan Adhiniyam, 1981 (hereinafter referred B
to as, ‘Madhya Pradesh Adhiniyam’). The appellant was, in fact,
sentenced to death for the offence under Section 302 read with Section
34 of the IPC along with two other accused apart from a fine of
Rs. 5000/-. He was sentenced to 10 years Rigorous Imprisonment in
regard to the offence under Section 460 of the IPC. He was also handed
down a sentence of 10 years for the offence under Section 394 read C
with Section 34 of the IPC. Still further, he was also sentenced to 7
years for the offence under Sections 11 and 13 of the Madhya Pradesh
Adhiniyam. By the impugned judgment, the High Court answered the
death reference by holding that in the circumstances, the death penalty
was not warranted. In place of death penalty, the High Court sentenced D
the appellant and two other accused to life imprisonment and enhanced
the fine to Rs. 25,000/-. The appeal filed by the appellant was dismissed
otherwise. The prosecution case, in brief, appears to be as follows:
On 08.09.2008, in the night, Bharosilal (hereinafter referred to
as, ‘the deceased’, for short) was at his village Bilaua. He E
was residing alone. One Abhay Sharma-PW9, who is the son
of the deceased, was informed by one Neeraj Bhargav that
his father has not opened the door on that day. On receiving
such information, PW9, who also turned out to be the
complainant, finally went to his father’s residence and it was
found that his father was dead and the First Information Report F
(FIR) was lodged on 10.09.2008. On the basis of the
investigation conducted, Kalli, Hariom, Veeru, Virendra and
the appellant came to be charged with the offences as noticed.
In fact, the appellant was charged under Section 397 of the
IPC also. G
2. PW1 to PW15 were examined as prosecution witnesses.
Material objects were also produced. The following are the questions,
which were framed by the Trial Court:

H
274 SUPREME COURT REPORTS [2020] 4 S.C.R.

A “(i) Whether accused Kalli @ Gopal Sharma, Sonu @ Sunil and
Hariom on the date of incident after sunset and before sunrise
after committing house tress pass in the residential house of
deceased Bharosilal, committed the murder of Bharosilal?
(ii) Whether accused Kalli @ Gopal Sharma, Sonu @ Sunil and
B Hariom formed common intention to commit murder of
Bharosilal?
(iii) Whether accused Kalli @ Gopal Sharma, Hariom and Sonu
@ Sunil in fulfilment of their common intention committed
murder of Bharosilal by strangulation and cutting by a chhuri
C (knife)?
(iv) Whether accused Kalli @ Gopal Sharma, Hariom and Sonu
@ Sunil by using deadly weapon in committing robbery,
committed the murder of Bharosilal and looted gold and silver
jewellery and two mobile phones of Nokia made from the
D possession of Bharosilal?
(v) Whether accused Veeru and Virendera along with accused
Kalli @ Gopal Sharma, Hariom and Sonu @ Sunil, at the
house of accused Virendra Singh, Kushmah hatched
conspiracy of committing robbery in the house of Bharosilal?
E (vi) Whether the accused persons committed the offence defined
and specified under Section 2(b) of MPDVPK Act and
committed the offence u/s 11/13 of the above said Act?”
3. The Trial Court found that it was a case entirely based on
circumstantial evidence. It noticed that the deceased had suffered the
F following injuries:
“Injury No.1 Incised of 6x1.5x1 c.m. on the right side of
the chin.
Injury No. 2 Incised wound of 4 x 1 ½ cm below 1 cm
from the injury no. 1.
G
Injury No. 3 Incised wound of 6 x 3 x 2cm left fore arm
anteriority middle.
Injury No. 4 Incised wound of 6 x 1 x 1cm, just 2cm below
injury no. 3.
H
SONU @ SUNIL v. STATE OF MADHYA PRADESH 275
[K. M. JOSEPH, J.]

Injury No. 5 Incised wound of 6 x 1 x 1cm, just 2cm below A
injury no. 4.
Injury No. 6 Incised wound on abdomen 3" below
measuring 3 x 2 x deep upto peritoneum, part
of intestine coming out from the wound.”
4. The cause of death was found to be shock and hemorrhage B
due to excessive bleeding caused by multiple wounds. The death was
caused within 36 hours of the postmortem report. The postmortem was
conducted on 10.09.2008. It cannot be disputed that the death was
homicidal and it was caused with the intent to commit murder. The Trial
Court further proceeded to find that the certain articles were found missing C
from the almirah in the house where the deceased stayed. PW8 is wife
of the deceased. PW9, as already noticed, is one of the sons of the
deceased. PW13 held identification of the gold and silver jewellery and
the mobile phones, which according to them, belonged to the deceased.
The identified articles were belonging to the deceased. One hasli
(necklace) made of silver, one pair of earrings and two mobile phones D
were identified. The contention of the accused that PW13, who held the
identification proceedings, deposed that at that time a Police Officer
was present, was rejected by finding that from the Identification Memo-
Exhibit P21, it was clear that no Police Officer was present at the time
of the identification of the proceedings. The Court also relied upon the E
evidence of PW8 and PW9, who were found to have not stated about
the presence of Police Officers at the time of the identification
proceedings. The evidence of PW9 and the evidence of PW8, were
also referred to, to find that the Police came to open the door. It was
opened and it was seen that the almirah was opened and goods/gold
articles were scattered, and out of the said goods, one hasli (necklace) F
made of silver, one pair of gold earrings and two mobile phones, were
missing. The evidence of PW3-another son, was relied upon to find that
PW5 had overheard the conversation between all the accused which
was to the effect that the deceased was living alone and they were
making a plan for committing a loot in his house. No doubt, the Court G
also noticed that PW1, who was cited by the prosecution, to prove the
said conversation, turned hostile. PW3 had also deposed that he was
told by PW5 about having overheard the conversation between the
accused. The evidence of PW3 was relied upon to find that both Virendra
and Veeru used to come to massage the body of his father and his father
H
276 SUPREME COURT REPORTS [2020] 4 S.C.R.

A used to say that they would be got employed. PW3 deposed about his
familiarity with accused Virendra, Veeru and Kalli present in the Court.
PW6- another son of the deceased, has deposed that Kalli used to come
to his village to sell ghee and used to sit and talk with the deceased and
used to massage the body of his father. The Trial court finds that Veeru,
Virendra and Kalli used to come and they were also acquainted with the
B
deceased and his family members. Thereafter, the Trial Court also
referred to the recoveries of the articles. From Hariom, one mobile phone
was recovered. From Kalli, the Chhuri (knife), used for committing the
offence, was recovered. From the appellant, another mobile phone of
Nokia Company, Model 5110, of black colour, upon which the Number
C 97321820 was written in red ink, was also seized. The evidence of PW9
was relied upon wherein he has deposed, that a Nokia Mobile on which
B.L. in English was written with red marker, and on the battery of the
same, Number 97321820 in red ink, had been written, was stolen. From
accused Virendra, the recovery of hasli (necklace) was effected. From
Veeru, one pair of gold earrings was seized. On the basis of the same, it
D
was found that the stolen property and weapon have been seized on the
statement of the accused, and that these circumstances, completed the
chain of circumstantial evidence. Reliance was placed on the deposition
by PW5, who had overheard the conversation between the accused
about the criminal conspiracy. PW7, a witness to the recovery statement
E of the appellant-Exhibit P13 and also evidence of PW12- the Police
Inspector, who arrested the appellant, has been relied upon to prove the
statement leading to the recovery of the mobile from the appellant. The
following findings may be noted:
“In the above said analysis it is proved that there is criminal
F conspiracy amongst the accused persons to commit theft or loot
in the house of deceased, on the basis of memorandum statement
of accused Hariom, the looted mobile is recovered/ seized from
the possession of accused Hariom on the basis of memorandum
of accused Kalli @ Gopal Sharma and on producing by him one
blood stained sharp edged chhuri (knife) used in the offence has
G been seized from the possession of accused Kalli @ Gopal Sharma.
On the basis of memorandum statement of accused Sonu @ Sunil
and on producing by him the looted mobile Nokia is seized from
accused Sonu @ Sunil. In the same manner on the basis of
Accused Virendra one old and used hasli (necklace) made of
H silver is seized from the possession of accused Virendra. On the
SONU @ SUNIL v. STATE OF MADHYA PRADESH 277
[K. M. JOSEPH, J.]

basis of accused Veeru and on producing by him the looted A
property i.e. one pair of earrings are seized by the police from the
possession of accused Veeru. All the four looted properties i.e.
two mobile phones, one hasli (necklace) and one pair of gold
earrings have been identified by Rukmani (PW-8) and Abhay
Kumar Sharma (PW-9) in identification proceedings and they
admitted that the same belong to them. All these circumstances B
complete the chain of circumstances against the accused persons.
The accused persons have not produced any evidence in rebuttal
of the same. The defence did not explain the fact that the looted
property and weapon of offence have been recovered from their
possession in this situation it is clear that. The accused persons C
hatched criminal conspiracy of committing loot in the house of the
deceased, accused Kalli @ Gopal Sharma, Hariom and Sonu @
Sunil has committed murder of deceased before sun rises and
after sun set by entering in the house of the deceased.
From the criminal conspiracy and in fulfillment of the same D
and from the seizure of weapon of offence and looted property
from the accused Kalli @ Gopal Sharma, Hariom, Sonu @ Sunil
and no explanation of the same on behalf of defence it would be
presumed that accused Kalli @ Gopal, Sonu @ Sunil and Hariom
by entering in the house of deceased before sun rise and after sun
set has committed loot and in committing of the said loot has E
committed the murder of deceased Bharosilal Sharma by inflicting
injuries with knife. Because at the time of committing loot all the
three accused persons Kalli @ Gopal, Hariom and Sonu @ Sunil
were present at the place of occurrence, all the three have also
committed loot and in committing of the said loot the murder of F
deceased Bharosilal has been committed, from this it is clearly
concluded that there were common intention amongst the accused
persons Kalli @ Gopal, Hariom and Sonu @ Sunil to commit the
murder of deceased Bharosilal. Therefore, the offence u/s460/
302/34 against accused Kalli @ Gopal, Hariom and Sonu @ Sunil
are proved beyond reasonable doubt. G

So far as the question of offence u/s 397/34 IPC against
accused Kalli @ Gopal, Hariom and Sonu @ Sunil is concerned
the weapon used in the offence knife is only seized from accused
Kalli @ Gopal Sharma, it is clear from the same that at the time
H
278 SUPREME COURT REPORTS [2020] 4 S.C.R.

A of incident a chhuri, used in the incident which is deadly and sharp
edged was in possession of accused Kalli @ Gopal Sharma.”
(Emphasis supplied)
5. The appellant was found along with Hariom, guilty of the
offence under Section 394 read with Section 34 of the IPC, whereas,
B Section 397 of the IPC was found proved against Kalli. The Trial Court
found Kalli guilty under Section 397 read with Section 34 of the IPC.
Appellant was also convicted under Section 302 read with Section 34 of
the IPC. Thereafter, it was also found that the appellant and others
were guilty of the offences under Sections 11 and 13 of the Madhya
C Pradesh Adhiniyam, based on the offences proved otherwise.
6. The High Court, in appeal, proceeded to find that eleven
circumstances emerged before the Trial Court:
i. The incident in connection with the loot took place on
08.09.2008 after locking the doors from inside in the house of
D the deceased who was residing alone.
ii. That the postmortem confirms the prosecution case. It is found
that it is natural that on 09.09.2008 when the deceased did
not appear to be seen and was not responding on knocking
the door, Neeraj Bhargava informed PW9 that he was not
E responding. PW9 and PW8 departed to the place to know
about the welfare of the deceased.
iii. Upon request of PW9, his neighbor-Phoolchand climbed
through the stairs and he found the deceased with blood on
his hand and was lying dead. He went to the Police Station
F Bilaua for lodging the report which was recorded at about
11:30 P.M in night. The dead body was referred for
postmortem on the same day and the FIR was lodged in the
evening of 10.09.2008.
iv. On 10.09.2008, Ashok Kumar(PW3), in his Case Diary
G Statement, disclosed that the Cell Phone Number 9406586386,
generally used by his father, was also found missing. Another
Cell Phone Number 9928120429, which was made available
by son of deceased, was also found missing.
v. Investigation was conducted by PW15 and initially names of
H the assailants were not dictated by that time.
SONU @ SUNIL v. STATE OF MADHYA PRADESH 279
[K. M. JOSEPH, J.]

vi. The successor of PW15-(PW14) conducted subsequent A
investigation. Statements of witnesses were recorded, call
details of stolen mobile sets from Cyber Cell was received.
On 18.10.2008, he came to know the names of assailants
from Cyber Cell. Within two days, arrests were made of the
accused, viz., Kalli, Hariom, Parihar, Virendra Kachhi and
B
Veeru. The Churri(knife) was seized from accused Kalli,
one necklace from Virendra, one pair of gold earrings from
Veeru.
vii. The accused cannot get benefit for the inaction/ latches of
the investigation.
C
viii. On 02.11.2008, D.P. Sharma-PW12, arrested appellant and
recovered from him one mobile phone bearing SIM No.
97321820.
ix. As per medical evidence, it is clear that the deceased was
put to death by the accused or any one of them. Looking to D
the nature of the incised wounds seen on the body of the
deceased, the death appears to be homicidal.
x. Identification of properties, which were seized/ recovered in
between 18.10.2008 to 02.11.2008, was conducted on
10.12.2008, which cannot be said delayed because the persons E
who have identified the articles, were the residents of Gwalior.
xi. The motive of the incident is apparently clear. It was
committed for committing loot/theft, and during the incident
of theft, the deceased was killed by the accused.
7. We have heard learned Senior Counsel for the appellant and F
also learned counsel for the state. Learned Senior Counsel would complain
that there is no evidence against the appellant for convicting him for the
offences, he has been found guilty of. He complained that the Court’s
below have erred in placing reliance upon PW-5 who allegedly overheard
the conversation between the five accused persons by standing outside
G
the house of one of them. He points out that the witness could not be
believed. It is pointed out that PW-1 who was cited by the prosecution to
prove the said conversation has not adhered to the version which was
sought to be attributed to him. It is highly improbable that PW-5 could
have overheard any such conversation. He pointed out that a clear
discrepancy in regard to the recovery of the mobile phone from the H
280 SUPREME COURT REPORTS [2020] 4 S.C.R.

A appellant. In the memorandum relating the alleged recovery of the mobile
phone, what is stated is that the appellant took one mobile phone make
of Nokia of the deceased and he has hidden the same on the roof of his
house. The seizure memo reveals the following as what was recovered:
“
B S.No. Property Signatures obtained on
packets or property
1. One mobile phone of Nokia company of black
colour old and used, model No. 5110 made in
Finland CE 0188X no. 490541/30/26305416 is
written. Code No. 0502182 is written. B.L. is
written on the mobile in red ink and on its battery a
no. 97321820 is written with red ink. (some portion
C not ill egible).

’’
8. He would then point out that the High Court, in the recital of
circumstances, has found that a Cell Phone Number 9928120429 was
D found missing, and then he points out the eighth circumstance, which is
noted by the Court, is that one mobile phone, bearing SIM Number
97321820, was recovered from the appellant. Therefore, the phone that
was seized from the appellant was not the phone number which was
mentioned by the son of the deceased, PW-3, as was being used by his
father. He further pointed out about the mysterious maxi found at the
E premises. In this regard, we may notice the following findings by the
Trial Court:
“It is argued on behalf of defence that one blood stained and
sleeveless maxi of white colour having lines of brown colour, the
lower portion of the same is blood stained and the same is used is
F seized by the police wide Ex P-6 from the place of occurrence,
while there was no woman present at the place of occurrence. In
such a situation, on account of seizure of maxi from the place of
occurrence, the presence of any woman at the time of the incident
is proved, but who was that woman, the prosecution did not produce
G any evidence in this regard hence, the prosecution case is doubtful.
Only recovery/ seizure of blood stained maxi from the place of
occurrence does not make doubtful to the prosecution case. Human
blood was detected on the shirt of deceased and on the said maxi,
there is no evidence that there was blood of any other person on
the maxi. Because the wife of the deceased Rukmani Sharma is
H alive and Rukmani Sharma (Pw-8) has admitted in her cross
SONU @ SUNIL v. STATE OF MADHYA PRADESH 281
[K. M. JOSEPH, J.]

examination that she used to go occasionally to the house/ place A
of occurrence at Bilaua. In this sitation where there are visits of
the wife of deceased in the house then this probability could not
be denied that the said maxi would be of the wife of the deceased.
In this situation from the seizure of maxi from place occurrence
the incident could not be doubtful.”
B
9. He would point out that the Investigating Officer admitted that
he did not carry out any investigation regarding the maxi. He would
further contend that there is no evidence, as far as the appellant is
concerned, to convict him of the offences. The evidence, even according
to the prosecution witnesses, show that the other accused, viz., Veeru,
Virendra and Kalli, were known to the prosecution witnesses as persons C
who would frequent the house of the deceased. As far as the appellant
is concerned, there is no such evidence. In short, the contention is that
the case is one where the appellant is convicted without any evidence
and the injustice may be set right.
10. Per contra, learned Counsel for the State supported the D
judgment.
11. As already noticed the appellant stands convicted under Section
460, 302 read with Section 34 of the IPC and Section 394 read with
Section 34 of the IPC. This is besides convicting the appellant under
Sections 13 and 14 of the Madhya Pradesh Adhiniyam. The case hinges E
entirely on circumstantial evidence. Though eleven circumstances have
been enlisted by the High Court, the circumstances Nos. 2 and 3 relate
to the prosecution version as to the discovery of the death of the deceased
by his son and his wife. They relate to going to the place of his residence,
finding out the dead body and the lodging of the FIR. Circumstance No. F
5 also does not amount to a circumstance. Equally, we are not convinced
that the circumstance No. 7, viz., that the accused cannot get benefit for
the inaction/latches of the investigation, can amount to a piece of
circumstantial evidence for the prosecution to discharge its burden to
prove the case against the accused.
G
12. The circumstances, which can be culled out, can be put as
follows:
The deceased died in his house where he was living alone,
as a result of shock and hemorrhage from 6 incised wounds as
noticed and proved by medical evidence. The death is homicidal
H
282 SUPREME COURT REPORTS [2020] 4 S.C.R.

A too. There were valuable articles, namely, a silver necklace, gold
earring and two mobile phones which were found missing too.
These articles have been recovered from the accused as already
mentioned. A knife stood recovered from Kalli, one of the accused.
The other valuable articles identified by the closed relative, namely,
his wife and his son stood recovered. From the articles so
B
recovered, one mobile phone was recovered from the appellant.
13. There is evidence of prosecution witnesses that out of the
five accused, viz., Kalli, Veeru and Virendra used to frequent the house
of the deceased. The over hearing of the conversation by PW-5 amongst
the accused prior to the death of the deceased about their plans to commit
C loot/theft from the house of the deceased is another circumstance relied
upon.
WHETHER A MOBILE PHONE WAS RECOVERED BASED
ON STATEMENT BY APPELLANT
D 14. PW12 has deposed that on 01.11.2008, after arresting the
appellant and on enquiry in custody, he (appellant) made Statement-P13
to the effect that the looted mobile seized was hidden on the loft of his
room and he would recover the same. He further deposed that appellant
took the looted mobile from the loft and he prepared the Seizure Memo.
In the cross-examination, he states that the seized mobile was of the
E deceased. He further stated that no documents were produced. He
denied that he had planted the mobile from anywhere and false
proceedings have been done. PW7 has been examined to prove, inter
alia, that he was called to the Police Station, and after 15 to 20 days of
the proceedings relating to the recovery of the knife from Kalli, enquiry
F was made from the person, who he has told was Sonu-appellant. On
making enquiry, he gave an information in respect of the mobile. He
deposed that he has signed on the Statement-P13 [the Statement
purportedly to be under Section 27 of the Indian Evidence Act, 1872
(hereinafter referred to as, ‘the Evidence Act’, for short)]. He also admits
that he had signed on the Seizure Memo prepared based on the
G Statement-P14. Thus, PW7 and PW12 prove that a statement was given
by the appellant while in custody. Based on the statement, a mobile
phone was recovered from the appellant. The recovery was from his
house. It was not from an open space.

H
SONU @ SUNIL v. STATE OF MADHYA PRADESH 283
[K. M. JOSEPH, J.]

WHETHER RECOVERED PHONE PROVED AS A
BELONGING TO THE DECEASED. EVIDENCE RELATED TO
THE MOBILE PHONE, RECOVERED FROM THE APPELLANT
15. PW3-son of the deceased has this to say:
On 10.09.2008, his brother told him that some persons had
committed murder of his father causing injuries with sharp-edged B
weapon and took away goods/articles from the almirah. Along
with this, they also took away two mobile phones of his father.
The mobile phone of his father is 940655863866 which is of BSNL.
The sim of the same has been issued either from Dabra or Bilaua
(We are not concerned with this phone as this phone has been C
recovered from another accused).
What is stated next is as follows:
The other phone bearing number 9920121429 make of M-
Nokia was fitted with square LKD Red LED which had a light
while charging the mobile. The mobile was bought by him at D
Bombay prior to three months ago when his father came to Bombay
so that information about him could be communicated. He,
however, also says in his cross-examination that he had stated in
his statement to the Police that when his father came to Bombay,
then, he had given him another phone of make Nokia which had E
LED and showing light while charging the mobile. The mobile
number of the other phone was mentioned in Exhibit D1. He is
unable to explain as to why if such statement is not found in the
statement given by him to the Police. He said that again he is
unable to give the reason as to why it is not mentioned in the
statement to the Police that he had stated that the father had two F
sims out of which one was of Vodafone which was purchased
from Bombay. Lastly, he states in further cross as follows:-
“Cross-examination by Sh. A.K. Shrotiya, Advocate for
Sunu@Sunil.
G
I could not tell the date on which I had given mobile phone to
my father the above said mobile I had purchased from Mahesh
Gahera, Mahesh Gahera is residing Bombay he lived at Bandra
the same was given in gift the EMI of the same. I could not tell
today I can not produce a receipt of the same as I was given
the above said mobile as gift to me by Mahesh Gahera, he H
284 SUPREME COURT REPORTS [2020] 4 S.C.R.

A deals in mobile phone he as several sets of the same. My father
had another mobile phone made of Nokia EMI no of the same
I would not tell I neither have receipt of the same nor I could
produce the same.”
16. PW9 is another son of the deceased, who has identified the
B mobile phones. This is what he has to say in regard to the mobile phones:
The mobiles were of black colour and having old antenna.
On the battery of one mobile A-9406586386 is written in red ink
and on the other mobile on the back side it is written capital ‘BL’,
in English and number 97321820 was written with red marker.
C He says that after 8 to 10 days, when they checked the goods,
they came to know that some articles had been stolen. He further
states that they had informed the Police by that day about the
theft of the mobiles. He and his mother went to identify the goods.
His mother was called first and he went later.
D It is to be remembered that PW3 says he had given the
mobile in question prior to 3 months ago when deceased came to
Bombay. The deceased was staying alone. It is PW9 now who
has identified by the number written in the battery.
17. PW8 is the mother. She says first, on the next day, Police
E Officer came and they opened the room and they saw that almirah was
opened and articles were scattered. Out of the articles, one hensli
(necklace made of silver), gold earrings and two mobile phones of Nokia
Company, were stolen. Except this, no article was stolen. She says that
identification of the articles was got done by her. In cross-examination
on behalf of Kali alias Gopal, she says that on 11th or 12th, she came to
F know about the articles which were stolen. She says that in her statement
to the Police, she has stated that on the next day of incident, the almirah
was opened and the articles were scattered and, then, she came to know
that her goods had been stolen. She had not made any complaint anywhere
in respect of her stolen goods. She denies allegation that they have
G concocted a false story of goods being stolen after 8 to 10 days of the
incident for creating evidence. In this regard, it may be noticed that in
the evidence of PW9-son, he has stated that after going to the lower
room on the next day, he saw the almirah on that day. Articles were
lying outside. Therefore, they guessed that something had been stolen.
At that time, it could not be known what had been stolen. After 8 to 10
H
SONU @ SUNIL v. STATE OF MADHYA PRADESH 285
[K. M. JOSEPH, J.]

days, when they checked the goods, they came to know that some articles A
had been stolen.
18. In the Recovery Memo of the phone from the appellant, it is
stated as follows:
One mobile phone of Nokia company of black colour mode
no. 5110, made in Finland, followed by a certain number, code B
number is shown as 0502182 was written, BL is written on the
mobile in red ink and, on its battery, the number 97321820 is written
with red ink.
19. According to the deposition of PW3, the recovery of phone
which is attributed from the appellant, was bearing number 9920121429. C
The High Court has, in the impugned judgment, found that another Cell
Phone Number 9928120429, which was made available by his son-PW3,
was found missing. Thereafter, the finding by the High Court is that D.P.
Sharma, ASI arrested the accused and on 02.11.2008 recovered from
him one mobile phone bearing sim number 97321820. It is clear that the D
finding by the High Court that recovery was made from the appellant of
one mobile phone sim number 97321820, is clearly contrary to the version
of PW3 who purchased or was gifted the phone which he allegedly
gave to his father. Even, according to the Recovery Memo, the Number
97321820 is shown as the number on the battery of the mobile phone.
The number, which is allegedly provided by PW3, is the Number E
9920121429.
20. In Ashish Jain v. Makrand Singh and others1, it is held as
follows:
“28. We find substance in the argument of the learned Amicus F
Curiae that this identification was not done in accordance with
due procedure. It is evidence from the testimony of several of the
examined pledgors, such as PWs 15, 16 and 28, that the
identification procedure was conducted without mixing the
recovered jewellery with similar or identical ornaments….”
G
21. In this case also in regard to the mobile phone only the two
mobiles were kept for identification and it was purportedly identified as
noticed by PW9 besides PW8. In the identification conducted by PW13,

1
(2019) 3 SCC 770
H
286 SUPREME COURT REPORTS [2020] 4 S.C.R.

A it is come out that two mobile phones were not mixed with any other
mobile phones.
22. What is the effect of recovery of the mobile proceeding on
the basis that it belonged to the deceased? Section 114 of the Evidence
Act with illustration (a) reads as follows:
B “114. Court may presume existence of certain facts. —
The Court may presume the existence of any fact which it thinks
likely to have happened, regard being had to the common course
of natural events, human conduct and public and private business,
in their relation to the facts of the particular case.
C Illustrations
The Court may presume—
(a) That a man who is in possession of stolen goods soon after
the theft is either the thief or has received the goods knowing
D them to be stolen, unless he can account for his possession;”
23. The scope of this provision has been considered by this Court
on various occasions. In Sunder Lal alias Sundera v. State of Madhya
Pradesh2, both the accused and deceased were seen together. After the
alleged murder, the accused went with the article belonging to the
deceased for pledging/selling it. In the circumstances, the Court took the
E
view that the ornaments were established to be the ornaments worn by
the deceased. No explanation was forthcoming how the accused came
to be in possession on the very same day on which the alleged murder
was committed. On this, the Court took the view that the conviction
under Section 302 of the IPC, based on the circumstances, was correct.
F
24. On the other hand, in Sanwant Khan and another v. State of
Rajasthan3, one Mahant Ganesh Das, who was a wealthy person, used
to live in a temple of Shri Gopalji along with another person. Both of
them were found dead. The house had been ransacked and boxes and
almirah opened. It was not known at the time who committed the offence.
G Investigation resulted in arrest of the appellant, and on the same day, he
produced a gold khanti from his bara, where it was found buried in the
ground. Another accused produced a silver plate. The Court found that
there was no direct evidence. There were certain circumstances which
2
AIR 1954 SC 28
3
H AIR 1956 SC 54
SONU @ SUNIL v. STATE OF MADHYA PRADESH 287
[K. M. JOSEPH, J.]

were rejected by the Sessions Judge and the solitary circumstance was A
the recovery of the two articles. In these circumstances, the Court held,
inter alia, as follows:
“Be that as it may, in the absence of any direct or
circumstantial evidence whatsoever, from the solitary circumstance
of the unexplained recovery of the two articles from the houses B
of the two appellants the only inference that can be raised in view
of illustration A to S. 114 of the Evidence Act is that they are
either receivers of stolen property or were the persons who
committed the theft, but it does not necessarily indicate that the
theft and the murders took place at one and the same time.
C
xxx xxx xxx
Here, there is no evidence, direct or circumstantial, that the
robbery and murder formed parts of one transaction. It is not
even known at what time of the night these events took place. It
was only late next morning that it was discovered that the Mahant D
and Ganpatia had been murdered and looted. In our Judgment,
Beaumonth, C.J., and Sen J. in – Bhikha Gobar v. Emperor, AIR
1943 Bom 458 (B) rightly held that the mere fact that an accused
produced shortly after the murder ornaments which were on the
murdered person is not enough to justify the inference that the
accused must have committed the murder. E

xxx xxx xxx
In our judgment no hard and fast rule can be laid down as
to what inference should be drawn from a certain circumstance.
Where, however, the only evidence against an accused person is F
the recovery of stolen property and although the circumstances
may indicate that the theft and the murder must have been
committed at the same time, it is not safe to draw the inference
that the person in possession of the stolen property was the
murdered. Suspicion cannot take the place of proof.
G
(Emphasis supplied)
25. In Baiju v. State of Madhya Pradesh4, the Court held:

4
AIR 1978 SC 522 H
288 SUPREME COURT REPORTS [2020] 4 S.C.R.

A “14. The question whether a presumption should be drawn
under illustration (a) of S. 114 of the Evidence Act is a matter
which depends on the evidence and the circumstances of each
case. Thus the nature of the stolen article, the manner of its
acquisition by the owner, the nature of the evidence about its
identification, the manner in which it was dealt with by the appellant,
B
the place and the circumstances of its recovery, the length of the
intervening period, the ability or otherwise of the appellant to explain
his possession, are factors which have to be taken into consideration
in arriving at a decision.”
That was a case where the Court found that prosecution had
C proved the case.
26. This Court, in Shri Bhagwan v. State of Rajasthan5,held:
“11. The possession of the fruits of the crime, recently after
it has been committed, affords a strong and reasonable ground
D for the presumption that the party in whose possession they are
found is the real offender, unless he can account for such
possession in some way consistent with his innocence. It is founded
on the obvious principle that if such possession had been lawfully
acquired, that party would be able to give an account of the manner
in which it was obtained. His unwillingness or inability to afford
E any reasonable explanation is regarded as amounting to strong,
self-inculpatory evidence. If the party gives a reasonable
explanation as to how he obtained it, the courts will be justified in
not drawing the presumption of guilt. The force of this rule of
presumption depends upon the recency of the possession as related
F to the crime and that if the interval of time be considerable, the
presumption is weakened and more especially if the goods are of
such kind as in the ordinary course of such things frequently change
hands. It is not possible to fix any precise period. This Court has
drawn similar presumption of murder and robbery in a series of
decisions especially when the accused was found in possession
G of these incriminating articles and was not in a position to give
any reasonable explanation. Earabhadrappa v. State of
Karnataka [(1983) 2 SCC 330 : 1983 SCC (Cri) 447] was a case
where the deceased Bachamma was throttled to death and the

5
AIR 2001 SC 2342
H
SONU @ SUNIL v. STATE OF MADHYA PRADESH 289
[K. M. JOSEPH, J.]

appellant was taken into custody and gold ornaments and other A
articles were recovered at his instance. This Court observed: (Para
13)
“This is a case where murder and robbery are proved to
have been integral parts of one and the same transaction and
therefore the presumption arising under Illustration (a) to Section B
114 of the Evidence Act is that not only the appellant committed
the murder of the deceased but also committed robbery of her
gold ornaments which form part of the same transaction.”
PW5, WHO OVERHEARD THE CONSPIRATORIAL
CONVERSATION C
27. In this case both the courts have apparently drawn strength
from the testimony of PW5. PW5 is a person whose evidence is virtually
the sole testimony relied on to prove the conspiracy to commit theft/
robbery. It is worthwhile to consider what he has deposed in Court. He
and Mohan Sharma, (who is PW1 and has turned hostile) at the house D
of Virendra Kushwah (Virendra is one of the accused in this case) found
Virendra, Veeru Dheemar and three other persons sitting and talking.
When they (PW1, PW5) passed in front of the gate, he saw that they
stopped talking. Then they went little forward. He told that these goondas/
miscreants (Badmaash) seem to be outsiders. Let us listen to their
conversation. They heard, Virendra Kushwah and Veeru were saying to E
the three persons that Bharosilal is an old man and he has a lot of money
and is living alone. He and Veeru would remain here. Kalli-the appellant
and Hariom would go to the house of the deceased to commit the theft.
Then they left from there. Next day it was known that someone had
killed Bharosilal. In the evening of the next day he refrained from telling F
anyone because they were goondas. Later on, he told the son of Bharosilal,
whose name is Abhay, that these five accused have committed murder.
He identified them. In cross, he says his house is far from where the
goondas were making conversation. On the 16th day, when the Police
came for inquiry, he told all the above things to the Police. He himself
did not tell by going to the Police Station. He says that he has seen all the G
three persons (which apparently includes the appellant) at the Police
Station. On 16.10.2008, when he was called at the Police Station, at that
time, all the three persons were sitting. [The arrest of the appellant, it
may be noted, is made by PW-12 only on 01.11.2008]. He deposed that
he did not also see the accused persons at the Police Station. The Police H
290 SUPREME COURT REPORTS [2020] 4 S.C.R.

A made inquiry in the office and these three accused persons were detained
in the Police Station. The police officials also not shown him the three
accused persons at there. He further says that when the accused persons
were sent to jail, then S.I. had shown to him the accused persons in the
vehicle. The names of all the three were told and all the three were got
identified. He further says that he had got knowledge of the names of all
B
the three persons when Police recorded his statement, i.e., after 8 to 10
days from 16.10.2008. Then, he came to the name of the remaining
three persons. In earlier cross-examination on behalf of another accused,
he has stated in his statement that till the Police recorded his statement.
He did not know about the residence of the three persons whose names
C he has told except Virendra and Veeru but they seemed to be outsiders.
He further says that he has no knowledge of the fact that the persons
who were sitting in the house of Virendra, if they were uttering by
taking wrong names of each other. He, no doubt, says that there was
light in the house of Virendra. The light of the same was scattered.
D 28. In the case of recovery of an article from an accused person
when he stands accused of committing offences other than theft also,
(in this instance murder), what are the tests:
i. The first thing to be established is that the theft and murder
forms part of one transaction. The circumstances may indicate
E that the theft and murder must have been committed at the
same time. But it is not safe to draw the inference that the
person in possession of the stolen property was the murderer
[See Sanwant Khan (supra)];
ii. The nature of the stolen article;
F iii. The manner of its acquisition by the owner;
iv. The nature of evidence about its identification;
v. The manner in which it was dealt with by the accused;
vi. The place and the circumstances of its recovery;
G vii. The length of the intervening period;
viii. Ability or otherwise of the accused to explain its possession
[See Baiju (supra)].
29. In this case, applying the tests as above, we find as follows:
H
SONU @ SUNIL v. STATE OF MADHYA PRADESH 291
[K. M. JOSEPH, J.]

I. The appellant has not given any explanation as to how he A
came by possession of the mobile. He has no explanation in
his questioning under Section 313 of the Code of Criminal
Procedure, 1973 (hereinafter referred to as ‘the CrPC’, for
short);
II. As far as length of the intervening period is concerned, B
recovery was effected on 02.11.2008 whereas the date of
the incident is 08.09.2008. That means, a gap of less than
two months. The arrest of the appellant was effected on
01.11.2008, i.e., a day before the recovery;
III. As far as nature of the article is concerned, it was a mobile C
phone which was capable of being transferred by mere
delivery. No doubt, it would contain a sim which may connect
the phone with the previous owner or person in possession. It
is also common knowledge, however, that it may be open to
the person, who possesses the mobile, to equip it with a new
sim; D

IV. As far as identification is concerned, we have already seen
the nature of the evidence;
V. It is not in dispute that the two mobile phones were kept and
they were not mixed with any other similar looking mobile E
phones.
30. The appellant, along with the others, were charged under the
offences with the aid of Section 34 of the IPC. The finding by the Trial
Court in this case is that there was a criminal conspiracy hatched to
commit robbery. As far as Section 34 is concerned, it proclaims the F
principle of vicarious criminal liability. The soul of the Section, and the
principle which underlies criminal liability for the acts of another therein,
is the shared intention or the common intention to commit an offence.
The common intention must be for the very offence which the accused
is charged with. In this case, it is to be noted that though there is a
charge of causing death by strangulation, the finding is that the death G
was caused as a result of the injuries inflicted with the knife. The knife
was, apparently, carried and wielded by the co-accused-Kalli. From him,
in fact, the recovery of the knife was also effected which becomes all
the more reason for us to conclude that it will be totally unsafe to convict
the appellant of the charges of which he is found guilty including Section
H
292 SUPREME COURT REPORTS [2020] 4 S.C.R.

A 302 of the IPC based only on the recovery of the mobile phone where
the recovery itself suffers from suspicion and doubt. We may, in this
regard, notice the view expressed by this Court in Hardev Singh and
others v. State of Punjab6: -
“9. The view of the High Court that even the person not
B committing the particular crime could be held guilty of that crime
with the aid of Section 34 of the Penal Code if the commission of
the act was such as could be shown to be in furtherance of the
common intention not necessarily intended by every one of the
participants, is not correct. The common intention must be to commit
the particular crime, although the actual crime may be committed
C by any one sharing the common intention. Then only others can
be held to be guilty………..”
(Emphasis supplied)
31. In Arun v. State by Inspector of Police, Tamil Nadu7, this
D Court, dealing with the case where Section 34 of the IPC was sought to
be invoked against the appellant in the matter of committing the offence
of murder. No doubt, it was a case where there was no charge or evidence
that he committed the murder. This Court referred to the tests laid down
in the decision in Dharam Pal v. State of Haryana8 and we would refer
to paragraphs 14 and 15 of the said judgment. The same reads as under:
E
“14. It may be that when some persons start with a pre-
arranged plan to commit a minor offence, they may in the course
of their committing the minor offence come to an understanding
to commit the major offence as well. Such an understanding may
appear from the conduct of the persons sought to be made
F vicariously liable for the act of the principal culprit or from some
other incriminatory evidence but the conduct or other evidence
must be such as not to leave any room for doubt in that behalf.
15. A criminal court fastening vicarious liability must satisfy
itself as to the prior meeting of the minds of the principal culprit
G and his companions who are sought to be constructively made
liable in respect of every act committed by the former. There is
no law to our knowledge which lays down that a person
6
AIR 1975 SC 179
7
2008 (15) SCC 501
8
H 1978 (4) SCC 440
SONU @ SUNIL v. STATE OF MADHYA PRADESH 293
[K. M. JOSEPH, J.]

accompanying the principal culprit shares his intention in A
respect of every act which the latter might eventually commit.
The existence or otherwise of the common intention depends upon
the facts and circumstances of each case. The intention of the
principal offender and his companions to deal with any person
who might intervene to stop the quarrel must be apparent from
B
the conduct of the persons accompanying the principal culprit or
some other clear and cogent incriminating piece of evidence. In
the absence of such material, the companion or companions cannot
justifiably be held guilty for every offence committed by the
principal offender.” (Emphasis Supplied)
32. As far as the presumption being drawn of common intention, C
we notice the judgment of this Court in Brijlal Pd. Sinha v. State of
Bihar9 1998 (5) SCC 699:
“11……..The liability of one person for an offence
committed by another in the course of a criminal act perpetrated
by several persons will arise under Section 34 of the Penal Code, D
1860 only where such criminal act is done in furtherance of a
common intention of the persons who join in committing the crime.
Direct proof of common intention will, of course, be difficult to
get and such intention can only be inferred from the circumstances.
But the existence of a common intention must be a necessary E
inference from the circumstances established in a given case. A
common intention can only be inferred from the acts of the parties.
Unless a common intention is established as a matter of necessary
inference from the proved circumstances the accused persons
will be liable for their individual act and not for the act done by
any other person. For an inference of common intention to be F
drawn for the purposes of Section 34, the evidence and the
circumstances of the case should establish, without any room for
doubt, that a meeting of minds and a fusion of ideas had taken
place amongst the different accused and in prosecution of it, the
overt acts of the accused persons flowed out as if in obedience to G
the command of a single mind. If on the evidence, there is doubt
as to the involvement of a particular accused in the common
intention, the benefit of doubt should be given to the said accused
person. ….”
9
1998 (5) SCC 699
H
294 SUPREME COURT REPORTS [2020] 4 S.C.R.

A 33. In Girija Shankar v. State of U.P.10, this Court made the
following observations:
“9. …… In order to bring home the charge of common
intention, the prosecution has to establish by evidence, whether
direct or circumstantial, that there was plan or meeting of minds
B of all the accused persons to commit the offence for which they
are charged with the aid of Section 34, be it pre-arranged or on
the spur of the moment; but it must necessarily be before the
commission of the crime.….”
(Emphasis supplied)
C 34. Thus, in this case, as far as the appellant is concerned, the
evidence against him essentially consists of the recovery of the mobile
phone and there is discrepancy about the number which we have noted.
PW5 has not taken the name of the appellant. Essentially evidence of
PW5 and the recovery is relied on to hold that the chain of circumstances
D is complete. We have noticed the testimony of PW5. The appellant is
not mentioned as one of the persons who used to visit the deceased’s
father though three of the other accused were named, viz., Veeru, Kalli
and Virendra. There is complaint from the appellant that no Test
Identification Parade was conducted for the accused. We have referred
to what PW5 has deposed.
E
35. In the facts of this case, we are inclined to think that it would
not be safe to uphold the conviction of the appellant. He would be entitled
to the benefit of doubt. We allow the appeal. The impugned judgment in
so far as it relates to the appellant will stand set aside and he will stand
acquitted. The appellant’s bail bond shall stand discharged. He will be
F set at liberty if his custody is not required in connection with any other
case.

Devika Gujral Appeal allowed.

G

10
2004 (3) SCC 793
H