2026 INSC 467 Criminal Appeal No.440/2013 Page 1 of 20

NON-REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.440 OF 2013

SANJAY SINGH … APPELLANT(S)

VERSUS

STATE OF MADHYA

PRADESH

… RESPONDENT(S)

J U D G M E N T

AUGUSTINE GEORGE MASIH, J.

1. In the present appeal, the prosecution case has

its genesis in an incident alleged to have

occurred on 12.05.1999 at about 9:30 p.m. in

village Sarsi, within the jurisdiction of Police

Station Industrial Area, Jaora, District Ratlam.

On the same night, at about 10:45 p.m., a First

Information Report bearing No.93 of 1999 came

to be lodged by Balwant Singh s/o Rai Singh,

who is stated to be the brother of the injured

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Deshpal Singh. In the said report, allegations

were made against several persons, including

the present Appellant, to the effect that they had

assaulted the injured by use of firearms and

other weapons. On the basis of the said report,

offences under Sections 307, 147, 148 and 149

of the Indian Penal Code, 1860

1, along with

relevant provisions of the Arms Act, 1959 came

to be registered.

2. It is the case of the prosecution that

immediately after the occurrence, the injured

Deshpal Singh was taken for medical treatment.

On the same night, i.e., 12.05.1999, at about

10:45 p.m., a statement of the injured, treated

as a dying declaration, was recorded by the

attending medical officer. The condition of the

injured, however, deteriorated and despite

medical intervention, he succumbed to his

injuries in the early hours of 13.05.1999 at

about 5:40 a.m. Upon receipt of information

regarding his death, the offence came to be

altered from Section 307 IPC to Section 302 IPC.

1

For short, “IPC”.

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3. The investigation was thereafter carried out in

the usual course. Statements of witnesses were

recorded, alleged weapons were seized, and

documentary material, including medical

papers and post-mortem report was collected.

Upon completion of the investigation, a charge-

sheet came to be filed against the accused

persons, including the present Appellant, for

offences punishable under Section 302 IPC and

allied provisions. The case was committed to the

Court of Session and registered as Sessions

Case No. 130 of 1999 before the Second

Additional Sessions Judge, Ratlam.

4. During the course of the trial, the prosecution

examined several witnesses, including the

complainant, persons projected as

eyewitnesses, the doctor who recorded the

statement of the injured, and the investigating

officer. Documentary evidence such as the First

Information Report, the alleged dying

declaration, post-mortem report and seizure

memos were also brought on record. The

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defence of the Appellant was one of denial, and

it was contended that he had been falsely

implicated and that no specific role had been

attributed to him in the commission of the

offence.

5. By judgment dated 11.07.2001, the Trial Court

came to the conclusion that the prosecution had

succeeded in establishing its case beyond

reasonable doubt. The Trial Court held that the

accused persons had acted in furtherance of

their common intention and that the death of

Deshpal Singh was the result of the acts

committed by them. On that basis, the

Appellant, along with co-accused Mahendrapal

Singh, were convicted under Section 302 read

with Section 34 IPC and sentenced to undergo

life imprisonment with fine in Sessions Case No.

130 of 1999 by the Second Additional Sessions

Judge, Ratlam, while the remaining five co-

accused were acquitted of the charges.

6. The Appellant, along with the said co-accused

Mahendrapal Singh, carried the matter in

Criminal Appeal No.440/2013 Page 5 of 20

appeal before the High Court of Madhya

Pradesh at Indore by filing Criminal Appeal No.

850 of 2001. The High Court, by its judgment

dated 08.03.2011, dismissed the appeal and

affirmed the findings recorded by the Trial

Court. A reading of the impugned judg ment

would indicate that the High Court concurred

with the conclusions of the Trial Court and did

not find any ground to interfere with the

conviction and sentence.

7. Aggrieved thereby, the Appellant, along with the

co-accused Mahendrapal Singh, preferred

Special Leave Petition (Criminal) No. 6799 of

2011 before this Court. On 26.08.2011, at the

stage of consideration of the said petition, this

Court dismissed the Special Leave Petition

insofar as the co-accused Mahendrapal Singh is

concerned, while issuing notice and

entertaining the petition filed by the present

Appellant, which has subsequently, on grant of

leave, been converted into the present Criminal

Appeal.

Criminal Appeal No.440/2013 Page 6 of 20

8. Learned senior counsel appearing on behalf of

the Appellant assailed the concurrent findings

recorded by the courts below by contending that

the conviction of the Appellant under Section

302 read with Section 34 of the IPC is wholly

unsustainable in law as well as on the facts. It

was submitted that the prosecution has failed

to establish any overt act on the part of the

Appellant which could connect him with the

fatal injury caused to the deceased. Learned

counsel urged that the evidence on record itself

demonstrates that the Appellant had not

inflicted the fatal shot and that his presence at

the spot, even if assumed, would not by itself be

sufficient to attract the provisions of Section 34

IPC in the absence of proof of any prior meeting

of minds or pre-arranged plan.

9. It was further submitted that the prosecution's

case suffers from serious infirmities which go to

the root of the matter. Learned counsel pointed

out that the incident is alleged to have taken

place at about 09:30 p.m. in a village where, as

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per the prosecution witnesses themselves, there

was no electricity, thereby rendering the

identification of the accused persons highly

doubtful. It was also urged that there is no

independent witness who has been examined to

corroborate the version of the prosecution,

despite the alleged occurrence having taken

place in a populated locality. Attention was also

drawn to the fact that the alleged dying

declaration does not attribute the fatal injury to

the Appellant and, to the contrary, indicates

that the injury allegedly caused by him was not

responsible for the death of the deceased.

10. Learned counsel for the Appellant further

submitted that the prosecution has not been

able to establish any nexus between the

weapons allegedly recovered and the injuries

sustained by the deceased, inasmuch as the

expert opinion does not conclusively link the

two. It was also urged that the evidence on

record itself indicates that the Appellant had

reached the place of occurrence subsequent to

the arrival of the principal accused and had

Criminal Appeal No.440/2013 Page 8 of 20

approached the spot from a different direction,

thereby negating any possibility of a prior

concert or common intention. It was, therefore,

contended that the invocation of Section 34 IPC

is wholly misconceived and that the Appellant

cannot be held vicariously liable for the act of

the principal accused.

11. On the other hand, learned counsel appearing

for the State supported the impugned judgment

and submitted that the findings recorded by the

Trial Court, as affirmed by the High Court, do

not warrant interference. It was contended that

the evidence on record clearly establish the

presence of the Appellant at the scene of

occurrence and his participation in the incident.

According to the learned counsel, the

circumstances brought on record are sufficient

to establish that the Appellant was acting in

furtherance of the common intention of the

accused persons and, therefore, the conviction

under Section 302 read with Section 34 IPC has

been rightly recorded.

Criminal Appeal No.440/2013 Page 9 of 20

12. We have given our thoughtful consideration to

the rival submissions and have carefully gone

through the evidence on record as well as the

judgments rendered by the courts below.

13. In the facts and circumstances of the case in

hand, it would be necessary to consider

whether, in the absence of any specific role

attributed to the Appellant in causing the fatal

injury to the deceased, conviction under Section

302 IPC can be sustained, and/or whether

having regard to the evidence on record, keeping

the nature of the act attributed to the Appellant

would require alteration of the offence and

consequently the sentence.

14. The conviction of the Appellant under Section

302 IPC rests upon the applicability and aid of

Section 34 of the IPC. The essential question,

which arises is, whether the prosecution has

been able to establish that the Appellant shared

a common intention with the principal accused

to commit the murder of the deceased and that

the act resulting in death was done in

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furtherance of such common intention. It is well

settled that Section 34 does not create a

substantive offence, but embodies a principle of

joint liability, and its application necessarily

requires proof of a pre-arranged plan or prior

meeting of minds, which may be formed even at

the spur of the moment, but must nonetheless

be clearly discernible from the material on

record.

15. The law in this regard is no longer res integra.

In Mahbub Shah v. King-Emperor

2, it was held

that common intention implies a pre-arranged

plan and prior meeting of minds. This principle

has been consistently reiterated by this Court in

Pandurang and Others v. State of

Hyderabad

3, wherein it was observed that

though such intention may develop on the spot,

there must be clear evidence to indicate a

meeting of minds and participation in

furtherance thereof. Paragraph 30 of

Pandurang (supra) reads as follows:

2

1945 SCC OnLine PC 5

3

(1954) 2 SCC 826

Criminal Appeal No.440/2013 Page 11 of 20

“30. Now in the case of Section 34 we think

it is well established that a common

intention presupposes prior concert. It

requires a pre-arranged plan because before

a man can be vicariously convicted for the

criminal act of another, the act must have

been done in furtherance of the common

intention of them all : Mahbub Shah v. King

Emperor [Mahbub Shah v. King Emperor,

1945 SCC OnLine PC 5 ], IA pp. 153-54.

Accordingly there must have been a prior

meeting of minds. Several persons can

simultaneously attack a man and each can

have the same intention, namely, the

intention to kill, and each can individually

inflict a separate fatal blow and yet none

would have the common intention required

by the section because there was no prior

meeting of minds to form a pre-arranged

plan. In a case like that, each would be

individually liable for whatever injury he

caused but none could be vicariously

convicted for the act of any of the others; and

if the prosecution cannot prove that his

separate blow was a fatal one he cannot be

convicted of the murder however clearly an

intention to kill could be proved in his case :

Barendra Kumar Ghosh v. King Emperor

[1924 SCC OnLine PC 49] (at p. 49) and

Mahbub Shah v. King Emperor [1945 SCC

OnLine PC 5]. As their Lordships say in the

latter case: (IA p. 154)

‘… the partition which divides ‘their

bounds’ is often very thin;

nevertheless, the distinction is real

and substantial, and if overlooked will

result in miscarriage of justice.’ ”

Criminal Appeal No.440/2013 Page 12 of 20

16. More recently, in Krishnamurthy alias

Gunodu and Others v. State of Karnataka

4,

this Court has reiterated that common intention

is essentially a psychological fact and must be

inferred from conduct and surrounding

circumstances, but such inference must be

based on credible material and not on

conjecture or assumption.

17. In the present case, the prosecution's evidence,

when examined in its entirety, does not disclose

any material from which such a common

intention can be safely inferred. The role

attributed to the Appellant is not that of having

caused the fatal injury to the deceased. The

evidence of the prosecution witnesses does not

consistently or unequivocally establish that the

Appellant fired at the deceased or that any

injury caused by him resulted in the death of

Deshpal Singh.

18. What further emerges from the record is that

the Appellant had not reached the place of

4

(2022) 7 SCC 521

Criminal Appeal No.440/2013 Page 13 of 20

occurrence along with the principal accused.

The evidence indicates that he arrived at the

spot subsequent to the commencement and

after the incident of shot having being fired and

hit the deceased at the instance of the co-

accused had occurred. Further, the Appellant

had approached the site of occurrence from a

different direction. This circumstance, when

read with the absence of any other evidence

suggesting prior concert, clearly negates the

existence of a pre-arranged plan.

19. At this stage, it would be apposite to examine

the evidentiary worth of the dying declaration of

the deceased, recorded shortly after the

occurrence, as well as the testimony of PW-6,

who is an injured witness. The dying

declaration, though admissible and relevant,

primarily establishes the presence of the

Appellant at the scene of occurrence. However,

a close and careful reading of the same does not

attribute to the Appellant the act of causing the

injury much less the fatal injury to the

deceased. The role ascribed to him therein is

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limited and does not indicate that he had fired

at the deceased so as to cause the injury which

ultimately proved fatal.

20. Equally significant is the testimony of PW-6, an

injured witness, whose presence at the spot

cannot be doubted. While the said witness does

state that the Appellant was present and was

carrying a firearm, he has deposed that the

Appellant was carrying a firearm and that, in

the course of the incident, PW-6 intervened and

lifted the barrel of the said firearm, as a result

of which the gun was directed upwards. This

aspect of the evidence assumes significance, as

it does not support the prosecution case to the

extent of establishing that the Appellant had

used the firearm against the deceased or had

caused any injury contributing to his death.

Rather, it reinforces the position that the role of

the Appellant was not of the same nature or

degree as that of the principal accused apart

from the lack of evidence indicating common

intention as mentioned earlier.

Criminal Appeal No.440/2013 Page 15 of 20

21. When the aforesaid pieces of evidence are

considered conjointly, it becomes difficult to

sustain the conclusion drawn by the courts

below that the Appellant shared a common

intention with the principal accused to commit

the murder of the deceased. The evidence on

record falls short of establishing either a prior

meeting of minds or any active participation on

the part of the Appellant in the infliction of the

fatal injury. At the same time, the presence of

the Appellant at the scene, coupled with the fact

that he was armed with a firearm, cannot be

ignored and does indicate a degree of

involvement in the occurrence.

22. The significance of such absence of prior

meeting of minds has been emphasised by this

Court in Munni Lal v. State of Madhya

Pradesh

5, wherein it was held that mere

presence of an accused without proof of

participation or shared intention is insufficient

to sustain a conviction with the aid of Section

34 IPC.

5

(2009) 11 SCC 395

Criminal Appeal No.440/2013 Page 16 of 20

23. The prosecution has also not been able to

establish any conduct on the part of the

Appellant which would indicate participation in

furtherance of a common intention to commit

murder. There is no material to show that the

Appellant facilitated, encouraged, or aided the

principal accused in the commission of the fatal

act. Mere presence cannot be elevated to proof

of common intention.

24. In this context, it would also be apposite to refer

to Constable 907 Surendra Singh and

Another v. State of Uttarakhand

6, wherein

this Court has held that presence at the scene

of offence, without anything more, cannot be a

ground to invoke Section 34 IPC. The

prosecution must establish that the accused

shared a common intention and acted in

furtherance thereof. In paragraph 30, it is

stated as follows:

“30. By now it is a settled principle of law

that for convicting the accused with the aid

of Section 34 IPC the prosecution must

establish prior meetings of minds. It must be

6

(2025) 5 SCC 433

Criminal Appeal No.440/2013 Page 17 of 20

established that all the accused had pre-

planned and shared a common intention to

commit the crime with the accused who has

actually committed the crime. It must be

established that the criminal act has been

done in furtherance of the common intention

of all the accused. Reliance in support of the

aforesaid proposition could be placed on the

following judgments of this Court in the

cases of:

(i) Ezajhussain Sabdarhussain v. State of

Gujarat [(2019) 14 SCC 339];

(ii) Jasdeep Singh v. State of Punjab [(2022)

2 SCC 545];

(iii) Gadadhar Chandra v. State of W.B.

[(2022) 6 SCC 576]; and

(iv) Madhusudan v. State of M.P. [(2024) 15

SCC]”

25. When the aforesaid circumstances are

considered cumulatively, it becomes difficult to

sustain the finding that the Appellant shared a

common intention with the principal accused.

The essential ingredients of Section 34 IPC are

thus not satisfied.

26. In our considered view, therefore, while the

evidence does not justify the conviction of the

Appellant for the offence of murder with the aid

of Section 34 IPC, it does establish that he was

Criminal Appeal No.440/2013 Page 18 of 20

present at the scene, armed with a firearm, and

was aware of the nature of the occurrence and

the likelihood of its consequences. The nature of

the incident, involving the use of firearms,

clearly indicates that the act was of a serious

nature and cannot b e treated as

inconsequential.

27. In such circumstances, while the conviction

under Section 302 IPC cannot be sustained, the

material on record would justify the conviction

of the Appellant under Section 307 IPC. The

distinction between Sections 302 and 307 IPC

is well settled, inasmuch as where the intention

to cause death is not established but the act is

done with the knowledge that it is likely to cause

death, the offence would appropriately fall

within the ambit of Section 307 IPC.

28. We are, therefore, of the considered view that

the conviction of the Appellant under Section

302 read with Section 34 IPC is liable to be set

aside and substituted with conviction under

Section 307 IPC.

Criminal Appeal No.440/2013 Page 19 of 20

29. As regards the sentence, it is not in dispute that

the Appellant has already undergone a

substantial period of incarceration, being about

9 years and 09 months without remission. It is

also relevant to note that the matter pertains to

the year 1999 and the Appellant is presently

aged about 46 years. Section 307 IPC being

punishable with imprisonment up to ten years

and having regard to the facts and

circumstances of the case, the ends of justice

would be met by limiting the sentence to the

period already undergone.

30. It is noted that the Appellant was enlarged on

bail during the pendency of the appeal. In view

of the present judgment and having regard to

the period of custody already undergone by the

Appellant, he shall not be required to surrender,

provided he is not required in any other case.

31. The appeal is accordingly partly allowed. The

conviction under Section 302 read with Section

34 IPC is set aside. The Appellant is convicted

Criminal Appeal No.440/2013 Page 20 of 20

under Section 307 IPC and sentenced to the

period already undergone.

.……..………..……………………..J.

[ SANJAY KAROL ]

.……..………..……………………..J.

[ AUGUSTINE GEORGE MASIH ]

NEW DELHI;

MAY 08, 2026.