Section 302/34.= The essential constituent of the vicarious criminal liability prescribed by Section 34 is the existence of common intention. If the common intention in question animates the accused persons and if the said common intention leads to the commission of the criminal offence charged, each of the persons sharing the common intention is constructively liable for the criminal act done by one of them. Just as the combination of persons sharing the same common object is one of the features of an unlawful assembly, so the existence of a combination of persons sharing the same common intention is one of the features of Section 34. It is now well­settled that the common intention required by Section 34 is different from the same intention or similar intention.- whether prosecution has been able to establish beyond reasonable doubt the sharing of common intention to commit the murder of deceased Mohammad Shakil by the accused appellants.=There is no incriminating material which has been placed by the prosecution to have their presence at the time of commission of crime and to caught hold of the deceased Mohammad Shakil and (PW­2) Adilahmed and even their clothes were not recovered in support of the ocular evidence of the interested witnesses, their presence being a holiday do not inspire confidence.-other than the allegation that the accused persons caught hold of deceased Mohammad Shakil, there is no other instigating action or overt act attributed to the present accused appellants actively participating in the commission of crime as alleged and from the conduct of the accused persons, it seems that there was no meeting of minds to form of pre­arranged plan. It is true that it can be developed at the spur of the moment but there must be pre­arrangement and pre­meditated concert which is the requirement of law for applicability under Section 34 IPC and from the case of the prosecution, the mere fact that accused appellants caught hold of deceased Mohammad Shakil facilitating the other accused persons to come with a knife and gupti and gave blows, it cannot be said that the accused appellants shared common intention with the other accused persons keeping note of the fact that in the complaint which was in the first instance registered for the alleged incident by accused no. 1 Iftekharhussain Sabdarhussain, he only recorded the presence of accused no. 2 Shefakathussain Sabdarhussain but the time when the complaint was registered at the instance of the present offence by the Shamimbanu (PW­1) at 2.00 p.m., the present accused appellants were also intentionally implicated. Certainly 18 it creates a doubt of their false implication and their presence from the prosecution evidence on record appears to be clouded with suspicion and in our considered view, the present appellants cannot be held guilty of the offence under Section 302 with the aid of Section 34 IPC. – In our considered view, the High Court has committed a manifest error in holding the appellants guilty under Section 302 read with Section 34 IPC for participating in the commission of crime. The appellants deserve to be acquitted of the charges filed against them by giving them benefit of doubt.


Hon’ble Mr. Justice Ajay Rastogi

NON­REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO(s). 2007 OF 2008
EZAJHUSSAIN SABDARHUSSAIN & ANR. ….Appellant(s)
VERSUS
STATE OF GUJARAT ….Respondent(s)
J U D G M E N T
Rastogi, J.

  1. The appellants are assailing their conviction under Section
    302 read with section 34 IPC and sentenced to undergo
    imprisonment for life passed by the learned trial Court and
    confirmed by the High Court under the impugned judgment.
  2. On dismissal of appeal upholding conviction under Section
    302 read with Section 34 IPC, accused nos. 1 and 2 have not
    challenged their conviction and sentence and accused nos. 3 and
    4(present appellants) have approached this Court assailing the
    1
    said judgment and conviction under Section 302 read with
    Section 34 IPC.
  3. The brief facts necessary for disposal of the appeal are as
    follows:
    According to the case of the prosecution, accused no.1
    Iftekharhussain Sabdarhussain was having a long pending civil
    dispute about his flat with the deceased Mohammad Shakil
    situated near to the scene of occurrence. On 18th August, 1997
    at about 11.00 a.m., Mohammad Shakil(deceased) had operated
    electric motor for supply of water in the common overhead tank
    situated on top of the building but at that time since water taps
    were kept open by accused no. 1 Iftekharhussain Sabdarhussain
    in his house, the water could not reach to the tank. The request
    of the deceased Mohammad Shakil to close the tap was not
    acceptable to accused no. 1 Iftekharhussain Sabdarhussain, due
    to which altercation took place between accused no. 1
    Iftekharhussain Sabdarhussain and deceased Mohammed Shakil
    and both started shouting at each other. According to the
    prosecution, after hearing hot altercation, members of the
    complainant party(Shamimbanu, Adilahmed, Zaidahmed) came
    there and started abusing the member of their family. At this
    2
    stage accused no. 1 Iftekharhussain Sabdarhussain and accused
    no. 2 Shefakathusssain Sabdarhussain went into their house
    and brought a knife and gupti in their hand and accused nos. 3
    & 4(present appellants) caught hold of Mohammad
    Shakil(deceased) and accused no. 1 Iftekharhussain
    Sabdarhussain and accused no. 2 Shefakathussain
    Sabdarhussain gave a knife and gupti blow to deceased
    Mohammad Shakil(deceased) and accused no. 2 Shefakathussain
    Sabdarhussain also injured Adilahmed(PW­2) who too was
    caught hold of by accused nos. 3 & 4(present appellants) and
    thereafter they left the scene of occurrence, both Mohammad
    Shakil and Adilahmed (being severally injured) were taken to
    V.S. Hospital and on receiving telephonic message Mr. Makwana,
    Police Inspector rushed to the hospital where he came to know
    that Mohammad Shakil had succumbed to injuries and
    Adilahmed was admitted in the hospital for treatment and
    thereafter recorded the complaint of Shamimbanu(PW­1), wife of
    deceased Mohammad Shakil at 2.00 p.m. and thereafter sent the
    same to Gaikwad Haveli Police Station for registration of offence.
    Thereafter, all the four accused were registered in C.R. No.
    3
    146/1996 for the alleged commission of offence under Sections
    302, 307 read with Section 34 IPC.
  4. It may be relevant to note that for the self­same incident
    happened around 11.00 a.m. in the morning of 18th August,
    1997, accused no. 1 Iftekharhussain Sabdarhussain also made a
    cross complaint that he was residing at House No. 521/4/5 in a
    small chawl(street) of Saudagar, in Jamalpur area and the
    present complainant party was living in front of his house and
    the families are known to each other. On 18th August, 1997 at
    eleven o’ clock in the morning, he was in the bathroom and he
    had kept the tap on, as his house was to be cleaned. Mohammad
    Shakil (deceased) came at his house and told him to turn the tap
    of water off. Accused no. 1 Iftekharhussain Sabdarhussain told
    to do the same after the cleaning work would finish as he was
    cleaning his house and not possible for him to off the tap. The
    members of the complaint party started using abusive language
    and attacked on him and becoming very excited. He also got
    excited and used abusive words, then three of them had beaten
    him with punch and kick and Mohammad Shakil(deceased) had
    beaten him by pipe blow on the back side by coming from behind.
    The nearby people had also come. Thereafter, his brother
    4
    Shefakathussain took him to Police Station by rescuing him
    where he lodged his complaint which was registered at 12.10
    p.m. In his complaint, he has not recorded the presence of
    accused nos. 3 & 4(present appellants) when the alleged incident
    took place on 18th August, 1997. The complaint of which the
    cognizance was taken for the offence under Section 302 & 307
    read with Section 34 IPC was registered at 2.00 p.m. after
    the complaint of the accused no. 1 Iftekharhussain
    Sabdarhussain on which the FIR was registered at the instance
    of the accused no.1 at 12.10 p.m. and after investigation chargesheet came to be filed against members of the complainant party.
  5. All the four accused faced trial and held guilty on the ocular
    evidence of PWs 1,2,3 & 4 who are the family members of
    deceased Mohammad Shakil. No independent witness was
    examined by the prosecution despite the fact it was a holiday and
    members reside in the adjacent flats as well. Indisputedly, there
    is no recovery from the present accused appellants and their
    clothes were also not recovered in the course of investigation.
    After the trial, all the four accused persons were held guilty
    under Section 302 read with Section 34 IPC and the appeal
    preferred against their conviction and sentence was also
    5
    dismissed by the High Court under the impugned judgment
    dated 29th February, 2008.
  6. Learned counsel for the appellants submits that the Courts
    below have committed a serious manifest error in accepting the
    testimony of PWs 1,2,3 & 4 who are the interested witnesses in
    holding their conviction under Section 302 with the aid of Section
    34 IPC on the said evidence and further submits that taking the
    prosecution case on its face value based on the evidence of PWs
    1,2, 3 & 4, there may be a case against accused nos. 1 & 2 who
    could be charged guilty and convicted under Section 302 read
    with Section 34 IPC as there was an allegation against them that
    they had stabbed the deceased by a knife and gupti. But so far
    as present accused appellants are concerned against whom the
    only allegation was that both of them had caught hold of
    deceased Mohammad Shakil and never assaulted either the
    deceased Mohammad Shakil or injured Adilahmed(PW­2) and
    submitted that an allegation that they caught hold of deceased
    and facilitated the two other accused persons to commit the
    crime in absence of any corroborating evidence on record, the
    finding which has been recorded holding the present accused
    6
    appellants guilty of offence under Section 302 read with Section
    34 IPC is perverse and not sustainable in law.
  7. Learned counsel for the appellants further submits that for
    the self­same incident, FIR came to be registered at the first
    instance earlier by accused no. 1 Iftekharhussain Sabdarhussain
    at 12.10 p.m. Who was the instigator may not be a question to
    be examined but accused no. 1 Iftekharhussain Sabdarhussain
    in his complaint has recorded the presence of his brother
    (accused no. 2 Shefakathussain Sabdarhussain) alone at the time
    of the alleged offence being committed. The complaint on which
    the present FIR was registered at the instance of the
    Shamimbanu(PW 1) wife of deceased Mohammad Shakil was
    registered at 2.00 p.m. and to settle the personal scores as the
    civil dispute was long pending between the families, all the male
    members of their family were implicated and there is no such
    overt act which would have been attributed to the present
    appellants. In the absence of any independent witness being
    examined by the prosecution, which indeed was available as the
    date of incident being a holiday and good number of families
    residing in the neighbouring flats, appears to be a case of over
    7
    implication to settle their long pending civil disputes in the courts
    of law.
  8. Learned counsel further submits that even from the
    evidence on record, the presence of the present accused
    appellants is itself doubtful as the learned trial Court has
    proceeded on assumption that since it was a holiday on account
    of Rakshabandhan, their presence cannot be doubted. The
    presumption in itself could not be considered to be sufficient to
    implicate present accused appellants of their common intention
    in committing the commission of offence in holding them guilty
    with the aid of Section 34 IPC and this has been the manifest
    error committed in convicting the appellants under Section 302
    with the aid of Section 34 IPC.
  9. Learned counsel further submits that even the presence of
    accused appellants together is not sufficient to hold that they
    shared common intention to commit the offence. It is necessary
    that the person be known to each other but for prosecuting the
    common intention, there must be a clear and unimpeachable
    evidence to justify that inference. There cannot be universal rule
    applicable to cases of this class which can be laid down as to
    what presumption may be drawn on any given state of facts.
    8
    Learned counsel further submits that common intention within
    the meaning of Section 34 IPC implies a prearranged plan, and to
    convict the accused of an offence, it should be proved that the
    criminal act was done in concert pursuant to the pre­arranged
    plan and that the inference of common intention should never be
    reached unless it is a necessary inference deducible from the
    circumstances of the case. There cannot be a rule of universal
    application and each case has to be looked into on its own facts
    and circumstances and in support of his submission, learned
    counsel has placed reliance on the judgment of this Court
    reported in Ramashish Yadav and Others Vs. State of Bihar
    1998(8) SCC 555.
  10. Learned counsel for the respondent, on the other hand,
    while supporting the finding recorded by the learned trial Court
    and confirmed by the High Court further submits that the
    presence of the accused appellants stood established from the
    ocular evidence of PWs 1,2,3 & 4 and all are consistent that both
    of them caught hold of the deceased Mohammad Shakil in the
    first instance and thereafter caught hold of the injured
    Adilahmed(PW­2) and aware of the lethal weapons being brought
    by other accused persons. They had the common intention not
    9
    only to injure deceased but the common intention was to commit
    murder of the deceased Mohammad Shakil.
  11. Learned counsel further submits that the manner in which
    the offence has been committed and the role being assigned to
    each of the accused clearly shows that the act was done in
    furtherance of the common intention of all and each of the
    accused is liable for the criminal act. The allegation against the
    present accused appellants that they both caught hold of the
    hands of the deceased shows that they had the intention to
    disable the deceased Mohammad Shakil. Moreover, the
    appellants continued holding the hands of the deceased all along
    without making any effort to prevent accused no. 1
    Iftekharhussain Sabdarhussain and accused no. 2
    Shefakathussain Sabdarhussain attacking the deceased, proves
    the common intention on their part and that can easily be
    discern from the fact that once accused no. 1 Iftekharhussain
    Sabdarhussain shouted to beat Adilahmed (PW­2), the present
    accused appellants left the deceased and caught hold the hands
    of Adilahmed(PW­2) and facilitated the other accused persons not
    only to attack the deceased but to injure (PW­2) Adilahmed as
    well and as both the present appellants have shared the common
    10
    intention with other accused persons, they have rightly been
    convicted under Section 302 read with Section 34 IPC and placed
    reliance of the judgment of this Court in Ramesh Singh alias
    Photti Vs. State of A.P. 2004(11) SCC 305 and Goudappa and
    others Vs. State of Karnataka 2013(6) SCC 675.
  12. Taking assistance thereof, learned counsel for the
    respondent further submits that the injuries may not be
    attributed to present accused appellants but both have disabled
    the deceased Mohammad Shakil and immobilised him thereby
    facilitating the attack on the deceased as well as on Adilahmed
    (PW­2). In such circumstances, the action of the appellants in
    facilitating the attack on deceased Mohammad Shakil and by not
    preventing accused no. 1 Iftekharhussain Sabdarhussain and
    accused no. 2 Shefakathussain Sabdarhussain from assaulting
    the deceased Mohammad Shakil leads to the conclusion that the
    appellants shared the common intention with accused no. 1
    Iftekharhussain Sabdarhussain and accused no. 2
    Shefakathussain Sabdarhussain and have rightly been held
    guilty under Section 302 read with Section 34 IPC in committing
    the offence and needs no interference by this Court.
    11
  13. To appreciate the argument advanced on behalf of the
    learned counsel for the appellants, it may be possible to first take
    note to understand the object of Section 34 IPC incorporated in
    the Indian Penal Code which has been considered in Ramesh
    Singh’s case(supra) as under:­
    “13. Since common intention essentially being a
    state of mind can only be gathered by inference
    drawn from facts and circumstances established in a
    given case, the earlier decisions involving almost
    similar facts cannot be used as a precedent to
    determine the conclusions on facts in the case in
    hand. This view of ours finds support in a judgment
    of this Court in Pandurang v. State of Hyderabad AIR
    1955 SC 216 wherein while considering the
    applicability of Section 34 IPC this Court held thus :
    “But to say this no more than to reproduce the
    ordinary rule about circumstantial evidence, for
    there is no special rule of evidence for this class of
    case. At bottom, it is a question of fact in every case
    and however similar the circumstances, facts in one
    case cannot be used as a precedent to determine the
    conclusion on the facts in another. All that is
    necessary is either to have direct proof of prior
    concert, or proof of circumstances which necessarily
    lead to that inference, or, as we prefer to put it in the
    time honoured way, ‘the incriminating facts must be
    incompatible with the innocence of the accused and
    incapable of explanation on any other reasonable
    hypothesis’.
    As we have said, each case must rest on its own
    facts and the mere similarity of the facts in one case
    cannot be used to determine a conclusion of fact in
    another.”
    12
  14. Later, the distinction between Section 149 & Section 34 IPC
    has been examined by the Constitution Bench of this Court in
    Mohan Singh Vs. State of Punjab AIR 1963 SC 174 as follows:­
  15. That inevitably takes us to the question as to
    whether the appellants can be convicted under
    Section 302/34.
    Like Section 149, Section 34 also deals with
    cases of constructive criminal liability. It provides
    that where a criminal act is done by several persons
    in furtherance of the common intention of all, each of
    such person is liable for that act in the same manner
    as if it were done by him alone. The essential
    constituent of the vicarious criminal liability
    prescribed by Section 34 is the existence of common
    intention. If the common intention in question
    animates the accused persons and if the said
    common intention leads to the commission of the
    criminal offence charged, each of the persons sharing
    the common intention is constructively liable for the
    criminal act done by one of them. Just as the
    combination of persons sharing the same common
    object is one of the features of an unlawful assembly,
    so the existence of a combination of persons sharing
    the same common intention is one of the features of
    Section 34.
    In some ways the two Sections are similar
    and in some cases they may overlap. But,
    nevertheless, the common intention which is the
    basis of Section 34 is different from the common
    object which is the basis of the composition of an
    unlawful assembly. Common intention denotes
    action­in­concert and necessarily postulates the
    existence of a pre­arranged plan and that must mean
    a prior meeting of minds. It would be noticed that
    cases to which Section 34 can be applied disclose an
    element of participation in action on the part of all the
    accused persons. The acts may be different; may
    vary in their character, but they are all actuated by
    the same common intention. It is now well­settled
    that the common intention required by Section 34 is
    different from the same intention or similar intention.
    13
    As has been observed by the Privy Council in Mahbub
    Shah v. King Emperor I.L.R. (1945) IndAp 148
    common intention within the meaning of Section 34
    implies a pre­arranged plan, and to convict the
    accused of an offence applying the Section it should
    be proved that the criminal act was done in concert
    pursuant to the pre­arranged plan and that the
    inference of common intention should never be
    reached unless it is a necessary inference deducible
    from the circumstances of the case.
  16. The essence of the joint liability during the criminal act in
    furtherance of such common intention has been discussed by a
    two­Judge Bench of this Court in Ramashish Yadav and
    Others(supra) wherein it was held as under:­
    “….Section 34 lays down a principle of joint liability in
    the doing of a criminal act. The essence of that liability
    is to be found in the existence of common intention
    animating the accused leading to the doing of a
    criminal act in furtherance of such intention. The
    distinct feature of Section 34 is the element of
    participation in action. The common intention implies
    acting in concert, existence of a pre­arranged plan
    which is to be proved either from conduct or from
    circumstances or from any incriminating facts. It
    requires a pre­arranged plan and it presupposes prior
    concert. Therefore, there must be prior meeting of
    minds. The prior concert or meeting of minds may be
    determined from the conduct of the offenders unfolding
    itself during the course of action and the declaration
    made by them just before mounting the attack. It can
    also be developed at the spur of the moment but there
    must be pre­arrangement or premeditated concert.”
  17. It is clear from the principles laid down that however similar
    the facts may seem to be in a cited precedent, the case in hand
    should be determined on facts and circumstances of that case in
    14
    hand only and the mere similarity of the facts in one case cannot
    be used to determine the conclusion of the fact in another.
    Common intention being the state of mind can be gathered by
    inference drawn from the facts and circumstances established in
    a given case. The cases involving almost similar facts and
    circumstances cannot be used as precedent to determine the
    conclusions on facts in the case in hand.
  18. Taking note of the law as laid down and as understood by
    us, it will be apposite to take note of the facts of the case as to
    whether prosecution has been able to establish beyond
    reasonable doubt the sharing of common intention to commit the
    murder of deceased Mohammad Shakil by the accused
    appellants.
  19. It has come on record that there was a long pending civil
    dispute in reference to a flat nearby between the parties and
    other families were residing in the housing colony and between
    11.00 a.m. and 11.15 a.m. in the morning of 18th August, 1997,
    when the altercation took place between accused no. 1
    Iftekharhussain Sabdarhussain and deceased Mohammad Shakil
    because of the supply of water, both parties started abusing each
    other. Accused no. 1 Iftekharhussain Sabdarhussain was also
    15
    injured in the alleged incident and he also reported his complaint
    at 12.10 p.m. on which FIR was registered and after
    investigation, charge­sheet was filed. Although after the trial, the
    complainant party was acquitted vide judgment dated 18th
    August, 1999. Accused no. 1 Iftekharhussain Sabdarhussain in
    his complaint recorded the presence of his brother(accused no.2
    Shefakathussain Sabdarhussain). The complaint on which the
    FIR was registered at the instance of complainant Shamimbanu
    (PW­1), wife of the deceased Mohammad Shakil was at 2.00 p.m.,
    apart from the presence of accused nos. 1 Iftekharhussain
    Sabdarhussain & accused no. 2 Shefakathussain
    Sabdarhussain, the names of accused no. 3 & 4(present
    appellants) were also added but no overt act have been attributed
    to the present appellants and their presence could be recorded
    with an allegation that both of them caught hold of the deceased
    Mohammad Shakil having common intention in facilitating the
    other accused persons to stab the deceased Mohammad Shakil
    by knife and gupti who have been convicted with the present
    accused appellants under Section 302 read with Section 34 IPC.
  20. That all the four prosecution witnesses, i.e. PWs 1,2,3 & 4
    are the interested witnesses being the members of the same
    16
    family who are living in front of the family of the accused having
    their civil dispute pending for a long time and this fact cannot be
    ruled out that after they came to know that the FIR has been
    registered at the instance of accused no. 1 Iftekharhusssain
    Sabdarhussain against the complainant party, they have tried to
    entangle all the male members of the accused party and since no
    injury could be attributed to the accused appellants, the
    allegation was levelled against them that the accused appellants
    caught hold of the deceased Mohammad Shakil and
    Adilahmed(PW­2) with the common intention facilitated by the
    accused in committing the crime. There is no independent
    witness in the calendar of witness to support the prosecution and
    it being a holiday on account of Rakshabandhan, at least when
    they were residing in a multi­storey building, number of families
    must have been residing. There is no incriminating material
    which has been placed by the prosecution to have their presence
    at the time of commission of crime and to caught hold of the
    deceased Mohammad Shakil and (PW­2) Adilahmed and even
    their clothes were not recovered in support of the ocular evidence
    of the interested witnesses, their presence being a holiday do not
    inspire confidence.
    17
  21. Other than the allegation that the accused persons caught
    hold of deceased Mohammad Shakil, there is no other instigating
    action or overt act attributed to the present accused appellants
    actively participating in the commission of crime as alleged and
    from the conduct of the accused persons, it seems that there was
    no meeting of minds to form of pre­arranged plan. It is true that
    it can be developed at the spur of the moment but there must be
    pre­arrangement and pre­meditated concert which is the
    requirement of law for applicability under Section 34 IPC and
    from the case of the prosecution, the mere fact that accused
    appellants caught hold of deceased Mohammad Shakil facilitating
    the other accused persons to come with a knife and gupti and
    gave blows, it cannot be said that the accused appellants shared
    common intention with the other accused persons keeping note
    of the fact that in the complaint which was in the first instance
    registered for the alleged incident by accused no. 1
    Iftekharhussain Sabdarhussain, he only recorded the presence of
    accused no. 2 Shefakathussain Sabdarhussain but the time
    when the complaint was registered at the instance of the present
    offence by the Shamimbanu (PW­1) at 2.00 p.m., the present
    accused appellants were also intentionally implicated. Certainly
    18
    it creates a doubt of their false implication and their presence
    from the prosecution evidence on record appears to be clouded
    with suspicion and in our considered view, the present appellants
    cannot be held guilty of the offence under Section 302 with the
    aid of Section 34 IPC.
  22. The judgment relied upon by the learned counsel for the
    respondents in Ramesh Singh’s case(supra) was a case where
    as per the case of prosecution, there was a death in the family of
    A­2. They wanted certain “samagri” for the funeral. On 30th
    April, 1998 at about 11.00 am, since the deceased refused to give
    some samagri, they became annoyed and accused persons went
    away and came back together at about 11.45 a.m. and called the
    deceased out of the house and while the two accused persons
    were holding the hands of the deceased, the other accused
    stabbed the deceased on his chest. They came with a common
    intention and equally participated in the commission of crime.
    However, in the instant case, there was no pre­arrangement of
    mind and altercation took place between accused no. 1
    Iftekharhussain Sabdarhussain with the deceased Mohammad
    Shakil who was accompanied with accused no.2 Shefakathussain
    Sabdarhussain and family members of deceased and in
    19
    furtherance thereof, accused no. 1 Iftekharhussain
    Sabdarhussain and accused no. 2 Shefakathussain
    Sabdarhussain brought a knife and gupti and stabbed the
    deceased. No presumption can be drawn of common intention by
    implicating the accused appellants under Section 34 IPC.
  23. Another judgment of this Court referred by the learned
    counsel for the respondent in Goudappa and Others(supra). It
    was a case where the accused persons were armed with lethal
    weapons assembled at one place and the moment the deceased
    came out of the house to spit, one of the accused started abusing
    him and the other accused persons held the deceased and
    facilitated the other accused to give the fatal blow and made no
    effort to prevent him from assaulting the deceased and their
    common intention clearly emanates from the criminal act in
    furtherance of the intention which in the instant case may not be
    of any assistance. As already observed, there cannot be a
    universal rule in laying down the principles of existence of
    common intention of prior meeting or meetings with pre­arranged
    plan. It has to be proved either from the conduct or
    circumstances of any incriminating facts which is missing in the
    instant case.
    20
  24. In our considered view, the High Court has committed a
    manifest error in holding the appellants guilty under Section 302
    read with Section 34 IPC for participating in the commission of
    crime. The appellants deserve to be acquitted of the charges filed
    against them by giving them benefit of doubt.
  25. The appeal is accordingly allowed and the impugned
    judgment of the High Court qua the appellants is set aside and
    since the appellants are already on bail, their bail bonds stand
    discharged.
    …………………………J.
    (A.M. KHANWILKAR)
    ………………………….J.
    (AJAY RASTOGI)
    NEW DELHI
    February 15, 2019
    21