‘Common Intention’ Cannot Be Inferred From Mere Brickbatting While Co-Accused Fires: Allahabad High Court Sets Aside 307/34 IPC Conviction

“‘Attempt To Commit Murder Was Not Their Common Intention At All’, Allahabad High Court has reiterated that vicarious liability under Section 34 IPC cannot be stretched to fasten liability for an individual act of firing unless a clear pre-arranged plan or meeting of minds is proved, holding that mere participation in stone-pelting does not establish common intention to commit attempt to murder.

Single Judge Bench of Justice Sanjiv Kumar partly allowing the appeal by setting aside the conviction under Section 307 read with Section 34 IPC, while maintaining conviction under Section 323 IPC and reducing the sentence to the period already undergone.

The Court observed that where one accused suddenly fires a shot and others are only involved in throwing bricks and stones, the act of firing cannot automatically be attributed to all accused in the absence of common intention.

The case arose from an incident dated 26 December 1980, when a police team led by S.I. Jai Prakash visited village Mudhail, Aligarh, to inquire into a local dispute.

According to the prosecution, the accused persons objected to police intervention and started pelting bricks and stones at the police party, causing simple injuries to two constables. During the incident, co-accused Mihi Lal allegedly took out a country-made pistol and fired at the police officer, though no one was injured.

The trial court convicted the accused under Sections 307/34 IPC and 323 IPC, along with other offences. During pendency of the appeal, most of the accused died, and the appeal survived only with respect to one appellant.

The core issue before the High Court was whether common intention under Section 34 IPC could be inferred so as to sustain conviction for attempt to murder.

The Court undertook a detailed analysis of Section 34 IPC and reiterated:

“Section 34 IPC does not create any distinct offence, but lays down the principle of constructive liability.”

It emphasized that:

“‘Common intention’ should not be confused with ‘similar intention’; it means intention common to all.”

Relying on settled precedents, the Court held that common intention requires a prior meeting of minds, which may develop on the spot, but must be clearly inferable from evidence and circumstances.

Examining the evidence, the Court found that ocular testimony of police witnesses and an independent witness was consistent and reliable, and the medical evidence corroborated simple injuries caused by hard and blunt objects.

However, on the crucial aspect of common intention, the Court found a clear gap.

The Bench noted that the incident occurred suddenly when the accused got agitated, and there was no evidence to suggest that the co-accused knew about the firearm or shared any plan to use it.

In a key finding, the Court held:

“From the evidence on record it cannot be inferred that the appellants shared common intention… attempt to commit murder was not their ‘common intention’ at all.”

The Court further clarified:

“Firing at the first informant by Mihi Lal was his own single act… it does not mean that other appellants also shared ‘common intention’ with him.”

Accordingly, the Court held that conviction under Section 307 read with Section 34 IPC was unsustainable, as the essential ingredient of shared intention was missing.

At the same time, the Court upheld the finding that the appellant had participated in throwing bricks and stones, causing simple injuries, and therefore:

“The offence under Section 323 IPC is proved beyond reasonable doubt.”

On Sentencing

Taking note of the extraordinary delay and mitigating factors, the Court observed that:

• The incident was of 1980 (over 45 years old)
• The appeal had remained pending for over four decades
• The appellant was of advanced age (about 97 years)

In these circumstances, the Court held:

“It would meet the ends of justice if the sentence… is reduced to the period already undergone.”

The appellant was not required to surrender, and directions were issued under Section 437-A Cr.P.C. / Section 481 BNSS.

The judgment is a significant reaffirmation that Section 34 IPC cannot be invoked in a mechanical manner to impose liability for a graver offence in the absence of clear proof of shared intention.

By distinguishing between individual acts and collective intent, the Court ensured that criminal liability remains proportionate to proven conduct, holding the appellant accountable only for the offence actually established on evidence.

Date of Decision: 16 March 2026