Harish Chandra vs State

The present appeal has to be decided on the evidence against the appellant, but the subsequent acquittal of the co-accused is also a circumstance which cannot be entirely ignored while considering the prosecution theory of common intention. For all the aforesaid reasons, we are of the view that the prosecution has failed to establish beyond reasonable doubt that the appellant shared a common intention with Sheo Ram to cause the death of Chhuttan or that any act attributed to the appellant was in aid of or in furtherance of the murder. The prosecution has also failed to establish his participation in the offence under Section 323 IPC. The appeal is, accordingly, allowed. The judgment and order dated 25.1.1992 passed by the District and Sessions Judge, Kanpur Dehat in Sessions Trial No. 108 of 1988 is set aside. The appellant is acquitted of the charges under Section 302 read with Section 34 IPC and Section 323 read with Section 34 IPC. The appellant is on bail. He is not required to surrender. His bail bonds are cancelled and the sureties stand discharged. Let the trial court record be remitted forthwith. A certified copy of this judgment shall be transmitted to the trial court for information and compliance. (Vinai Kumar Dwivedi,J.) (Salil Kumar Rai,J.)