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11. The High Court held that even though pre-meditation between the appellant and A-4 has not been proved but the very fact, the appellant entered the premises along with A-4 armed with pistol itself establishes that he entered the premises in furtherance of common intention to murder the deceased.

12. In the circumstances, two questions arise for our consideration, namely: whether the appellant entered the premises armed along with A-4, who killed the deceased? Secondly, even if he entered the premises armed, will that by itself establish common intention to commit murder?

17. The case of the prosecution was that the appellant along with A-4 with an intention to commit the dacoity had trespassed into the house of the deceased, the deceased had resisted them and out of fear of being over powered A-4 shot the deceased with pistol due to which the deceased sustained grievous injuries leading to his ultimate death. There is no allegation against the appellant that he along with A-4 trespassed into the house of the deceased in furtherance of their common intention to commit murder of the deceased. The common intention according to prosecution was to commit dacoity which is held not proved.

20. Second question that arises for our consideration that even if the appellant entered the premises armed, will that by itself establish common intention to commit murder? Is there any evidence available on record that a common intention developed at the spur of moment to commit the offence of murder?

21. In the present case, the appellant alone was charged for the offence punishable under Section 302 read with 34 IPC and whereas A-4 has been charged for the offence punishable under Section 302 IPC. Section 34 IPC which is nothing but rule of evidence provides that when a criminal act is done by several persons in furtherance of the common intention of all, each of such persons is liable for that act in the same manner as if it were done by him alone. The burden lies on prosecution to prove that actual participation of more than one person for commission of criminal act was done in furtherance of common intention of all at a prior concert. However, it is not required for the prosecution to establish that there was a prior conspiracy or pre- meditation, common intention can be found in the course of occurrence. In the present case, the question is whether the appellant shared any common intention and if so, with whom? Neither there is any charge nor evidence against A- 4 that he committed the murder of the deceased in furtherance of common intention shared with A-4. The trial court as well as the appellate court found A-4 guilty for the offence punishable under Section 302 IPC only. There is no third person involved with whom the appellant could have shared common intention. PW-1 and 2 in their evidence did not attribute any overt or covert act as against the appellant. No circumstances were brought on record from which it could be reasonably inferred that the appellant shared common intention with A-4 and in turn, A-4 committed the murder of the deceased in furtherance of such common intention. There is no evidence that there was a prior meeting of mind developed at the spur of moment and A-4 shot the deceased in furtherance of such common intention resulting in death.

26. In Hardev Singh and another v The State of Punjab [(1975)3 SCC 731)] this Court observed that "the common intention must be to commit the particular crime, although the actual crime may be committed by any one sharing the common intention. Then only others can be held guilty." In this case murderous assault on deceased by A-4 was his individual act. There is no evidence suggestive of any common intention to commit the murder. Circumstances are completely lacking compelling us to draw any inference that A-4 and A-5 together shared common intention to commit the murder and in furtherance of such common intention A-4 shot dead the deceased.