Angad Yadav vs The State Of U.P.
2021 Latest Caselaw 3623 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

AFR
 
Court No. 10.
 

 
CRIMINAL APPEAL No. - 1044 of 2000
 
Angad Yadav vs. State of U.P.
 
Hon'ble Ramesh Sinha, J.

Hon'ble Rajeev Singh, J.

(Per Ramesh Sinha, J. for the Bench)

1. This criminal Appeal has been preferred against the judgment and order dated 18.11.2000 passed by VIII Additional Sessions Judge, Lucknow in S.T. No. 579 of 1996 convicting and sentencing the appellant under sections 302/34 I.P.C. for life imprisonment with a fine of Rs. 20,000/- and in default of payment of fine further to go simple imprisonment for 3 years

2. Out of six accused persons, namely, Angad Yadav, Surajpal Yadav, Chandrapal Yadav, Ramesh Kaliya, Ramji Prasad, Shiv Bahwan, accused Surajpal Yadav and Chandrapal were killed in police encounter whereas accused Ramesh Kaliya died during the pendency of the appeal and his appeal, i.e., Crl. Appeal No. 1047 of 2000 has been abated by Co-ordinate Bench of this Court vide order dated 21.11.2017. So far as accused Ramji Prasad and Shiv Bhawan have been acquitted by the trial Court, hence the Court proceed to adjudicate the appeal on behalf of the surviving appellant Angad Yadav only.

3. The prosecution story as has been set out by the informant Vijay Kumar Yadav in the F.I.R. is that opposite to his house a house of Angad Yadav, who was a State Minister in the regime of B.S.P. Government, was being constructed. There was a dispute going on with respect to a public pathway in between their houses. On 28.10.1995, with respect to the dispute of public pathway, a compromise meeting was held between his father Laxmi Shanker Yadav and Angad Yadav and the dispute was settled but on 29.10.1995, at about 9:30 p.m., Angad Yadav came along with his 4-5 associates at the place where his house was being constructed and was standing. Few minutes thereafter a white Gypsy with a banner of Samajwadi Party came there from which 3-4 persons including Ramesh Kaliya and Surajpal Yadav came out. They were armed with fire arm. The said persons entered into the house of the informant along with accused Angad Yadav. The deceased Laxmi Shanker Yadav was in his bed room in the house. Accused Angad Yadav made an exhortation to the other co-accused uttering that "Maro Sale ko Bachne na Paye". On his exhortation, the associates of accused Angad Yadav opened fire on Laxmi Shanker Yadav, who sustained fire arm injuries and fell down. The incident was witnessed by the informant Vijay Kumar Yadav, his wife Smt. Kumkum Yadav, Rajdeep Yadav and Chaukidar Ram Charan Yadav, who were present in the house at the time of incident. The deceased Laxmi Shanker Yadav was taken to Medical College in injured condition where the doctor on duty declared him dead.

4. The informant Vijay Kumar Yadav prepared a written report (Ex. Ka-1) and submitted the same at police station Hazratganj, Lucknow on the basis of which chik report was prepared and the case was registered as case crime no. 835 of 1995 under sections 147, 148, 149, 302 I.P.C. at 10:45 a.m. which was endorsed in G.D. rapat no. 21 dated 29.10.1995 at 10:45 a.m. The distance of police station from the place of occurrence was about 2 kms. The inquest report (Ex. Ka-10) was prepared and further necessary documents such as police form no. 13 (Ex. Ka-11), challan nash (Ex. Ka-12) etc. were also prepared. Thereafter, the dead body of the deceased was sent to mortuary for post mortem. The post mortem of the deceased was conducted on 29.10.1995 at 12:30 p.m. by P.W. 4 Dr. R.K. Mishra, who opined that the cause of death of the deceased is due to shock and hemorrhage as a result of ante mortem injuries. The Investigating Officer took over the investigation of the case and after recording the statement of the witnesses prepared the site plan of the place of occurrence etc. and after investigation submitted charge-sheet against accused Angad Yadv, Surajpal Yadav, Chandrapal Yadav, Head Constable A.P. 14 Ramji Prasad, Constable A.P. 204 Shiv Bhawan-the security guards of appellant Angad Yadav and Ramesh Kaliya under sections 147, 148, 149, 302, 109, 120-B I.P.C. On submission of charge-sheet before the Magistrate, the case was committed to the Court of Sessions. The trial Court framed charges on 25.2.1997 against accused persons, who denied the same and claimed their trial.

5. The prosecution in support of its case has examined seven prosecution witnesses, i.e., P.W. 1 Vijay Kumar Yadav, who is the informant of the case and son of the deceased, P.W. 2 Smt. Kumkum Yadav wife of the P.W. 1 and daughter-in-law of the deceased, P.W. 3 Head Constable Chandra Bhan, P.W. 4 Dr. R.K. Mishra, P.W. 5 S.I. Ram Chandra Maurya- the 1st Investigating Officer, P.W. 6 S.I. Chakki Lal Verma, who conducted the inquest proceedings and P.W. 7 S.I. Vedpal Singh-the second Investigating Officer, who concluded the investigation and submitted charge-sheet.

6. Appellant Angad Yadav in his statement under section 313 Cr.P.C. has stated that under the influence of the police, the witnesses have falsely deposed against him and further at the instance of police false prosecution has been launched against him. He has been falsely implicated in the present case.

7. The appellant has not led any witness in his defence nor filed any documentary evidence.

8. P.W. 1 Vijay Kumar Yadav, who is the informant of the case and son of the deceased, in his deposition before the trial Court has reiterated the prosecution case as has been set out by him in the F.I.R., for brevity the same is not repeated.

9. In addition to it, he identified accused Ramji Prasad and Shiv Bhawan, who were present in the Court as gunners/shadow of accused Angad Yadav. He stated that a white Gypsy having banner of Samajwadi Party reached near his house and from the said vehicle Chandrapal Yadav, Surajpal Yadav and Ramesh Kaliya came out and two persons were sitting inside it. All the three persons were armed with rifles out of three Ramesh Kaliya fired in the air and Surajpal Yadav and Chandrapal Yadav abused his father and came to his house. Surajpal Yadav had shot a fire at the door which after hitting the door went inside and hit the wall and the window. He identified Surajpal Yadav and Chandrapal Yadav, who were also present in the Court. He stated that he was at the roof of his house at the time of incident and he saw the said incident from there. When the accused persons entered into his house they were abusing and uttering that "Aaj na bachne paye". Thereafter he got down from his roof and came inside his house till that time the accused had entered in his house and his wife had tried to stop them and when he had reached in the hall of the house, he saw that Chandrapal Yadav had dragged his father from his bed room into the big hall. By that time Surajpal Yadav and Ramesh Kaliya had also come in the hall. Appellant Angad Yadav was present in the gallary. On the exhortation made by accused Angad Yadav uttering "Maro sale ko aaj na bachne paye" Chandrapal Yadav had firstly assaulted his father with the butt of the country made pistol on his neck thereafter Chandrapal Yadav, Surajpal Yadav and Ramesh Kaliya had fired at his father. On receiving the gun shot injuries his father had fallen down. At that time both the guards of Angad Yadav, namely, Ramji Prasad and Shiv Bhawan were standing at the door of the house and while going back the accused have broken the telephone which was kept on the table. The witness further stated that till he could come out all the accused had gone away on their vehicle. The witness further stated that at the time of incident, his wife Smt. Kumkum Yadav, Chaukidar Ram Charan and one of his relative, namely, Rajdeep were present at the place of occurrence. Thereafter, the witness made a call to Civil hospital for Ambulance on which he took his father to the hospital. An information was also send to police station Hazratganj by sending some persons. The witness had taken his father to the Medical College where the doctor after seeing his father had declared him dead. Thereafter he took a paper at the medical college and got a report written and lodged the F.I.R. at police station Hazratganj. He has dictated the report about the incident and the person to whom he dictated the report, he did not remember but he has signed the report. He has proved the written report as A5/2 which is marked as Ex. Ka-1. The witness stated that Angad Yadav was in Bahujan Samaj Party. The name of Surajpal Yadav had come for contesting the election. The witness stated that he did not has any information about the relationship of the accused persons and Angad Yadav.

10. In the cross examination made on behalf of the appellant Angad Yadav, the witness stated that he started practice in Lucknow in the year 1980 and did practice for one and half years. He had heard the name of Angad Yadav before laying down the foundation of the house of Angad Yadav but neither he has seen him and nor he has been formerly introduced by any one to him. He has also neither formerly met his gunner nor anyone had introduced him. He also did not formerly meet Surajpal Yadav, Chandrapal Yadav and Ravi Yadav. On the day of incident, he did not know the name of the gunner of Angad Yadav and he identified them by their faces. At the time of incident, there was name plate of the gunners and he came to know about their name from it. He did not mention the name of the gunners in the F.I.R. but he told the Investigating Officer about their names in his statement and if the Investigating Officer had not mentioned the same then he cannot tell any reason for the same. He denied the suggestion that at the tutoring of someone he has identified the gunners as he did not mention in the F.I.R. that at the time of incident there was any guard or shadow along with Angad Yadav. He stated that at the time of the incident no person was in police uniform. He saw the uniform and name plate of the gunners prior to the incident. He did know that whether on the date of incident or prior to it any police squad was deputed for the security of Angad Yadav or not. He further deposed that neither he had seen any sale deed nor any map of the house of Angad Yadav. He further did not know about the area of the plot of Angad Yadav. He saw Angad Yadav coming to his plot for getting the work done. He further did not know whether the plot on which Angad Yadav was getting his house constructed, was part of sale deed or not. He further deposed that he did not mention in the F.I.R. that in spite of his father opposing, Angad Yadav had not stopped the work of digging of the land and abused him. He further did not mention in the F.I.R. that from the conduct of Angad Yadav, it was apparent that he was not happy with the compromise. He stated that he had told the Investigating Officer about the said fact and if he has not mentioned the same then he cannot tell the reason. He further stated in the F.I.R. that he did not mention that Angad Yadav had made an exhortation to his associates but he has told the same in his statement to the Investigating Officer that Angad Yadav made an exhortation and if he has not mentioned the same in his statement then he cannot tell any reason. He further did not mention in the F.I.R. that at the time of incident both the guards of Angad Yadav were standing at the gate. He denied the suggestion that the aforesaid facts were not mentioned by him in the F.I.R. and on the tutoring he has stated the same in his statement. He further stated that he did not mention in the F.I.R. that Angad Yadav was getting the digging done excess 12ft. wide on public pathway and he has stated the said fact to the Investigating Officer that Angad Yadav was making constructions on excess 12 ft. wide on public pathway. The total width of the public pathway was 12 ft. and he cannot tell that as to how much in width Angad Yadav was getting the digging done. The question was being put to the witness that whether Angad Yadav was getting the construction done on more 12 ft. width? on which the witness replied that after leaving 2-3 ft. public pathway, the digging was being done by him. The digging was being done by Angad Yadav after leaving 10 ft. from the gate of the house of the witness. On the day of the incident, no shadow was provided to his father. Surajpal Yadav had absconded after the incident. Angad Yadav was in B.S.P. and he did not know in which party Surajpal was. On the Gypsy the banner of Samajwadi Party was put. He stated that he had shown the place where the accused were standing at the time of the incident and he has also stated that Angad Yadav was standing in the gallery. The Investigating Officer had prepared the site plan at his instance on the day of the incident. He has denied the suggestion that on the day of the incident Angad Yadav and his shadow, namely, Shiv Bhawan and Ramji Prasad were not present. He further denied the suggestion that Angad Yadav had not exhorted the accused to kill the deceased. He has also denied the suggestion that he was not present at the place of occurrence. He also denied the suggestion that the report which has been stated to be written, has not been written at that time. He denied the suggestion that because of the political rivalry the name of Angad Yadav has been falsely implicated in the present case.

11. P.W. 2 Smt. Kumkum Yadav, who is the wife of P.W. 1 and daughter-in-law of the deceased in her deposition before the trial Court has reiterated the prosecution case as has been stated by P.W. 1 in its entirety, hence for the sake of brevity the same is not being repeated.

12. In her cross examination, she has stated that when the house of Angad Yadav was being constructed, he was not the Minister and he was Minister prior to it. The witness stated that towards the East of her house there was house of Angad Yadav and in between there was a public pathway. Towards West of the house of the witness there was house of Ravi Yadav. There was some hot talks of her father-in-law with Ravi Yadav 3-4 months prior to the incident as he wanted to grab their land. She stated that quarrel took place in the year 1994. She is not aware of the month in which the quarrel had taken place. She did not accompany her father-in-law when there was quarrel between them. She used to live in her house and outside work and other matter were taken care of by her husband and father-in-law. She used to live in the house and take care of children and during the talks in the house she came to know about the dispute with Ravi Yadav. During the course of talks she further came to know that Ravi Yadav, Surajpal Yadav, Chandrapal Yadav and Ramesh wanted to grab their land. She did not meet them but she had seen them earlier when they used to come. She has stated that at the time of incident Angad Yadav was getting the digging done at his plot. At the time of incident, there was President rule in the State. She denied the suggestion that because of the influence of Congress party, her father-in-law had grab the land of nearby areas. She did not know that her father-in-law had a sale deed of two biswas of land. She has stated that security was provided to her father-in-law by the administration with gunner, who used to accompany her father-in-law but in June, 1995, the government has withdrawn the same and her father-in-law had not tried to get the shadow as there was no threat to his life. She did not know that to whom Angad Yadav had got the arm license provided. She stated that no identification of the shadow and gunners of Angad Yadav was got done from her. She has stated about the names of guards in her statement to the Investigating Officer and if the same has not been mentioned by him then she cannot tell any reason. She did not have any conversation with Angad Yadav prior to the incident nor anyone got her introduced with him. Angad Yadav used to come at his plot prior to a month and used to sit there. On the date of incident, no work was being done on the plot of Angad Yadav though the work on the plot used to start at about 9 a.m. She denied the suggestion that the said incident had not taken place on the exhortation of Angad Yadav. She further denied the suggestion that he did not enter in the boundary of house. She also denied the suggestion that he has not participated in the incident. She denied the suggestion that on the tutoring, she named the shadow and gunners of Angad Yadav in the Court. She also denied the suggestion that there was no dispute of Angad Yadav for digging the base on the disputed land. She also denied the suggestion that because of political rivalry the name of Angad Yadav has been falsely implicated. She denied the suggestion that the name of guards have been taken by her after due deliberation and consultation.

13. P.W. 3 Head Constable Chandrabhan Singh Gautam had stated before the trial Court that on 29.10.1995, he was posted at Kotwali Hazratganj and on his instructions, on the basis of written report (Ex, Ka-1) submitted by the informant Vijay Kumar Yadav, chik F.I.R. no. 833 was written and case was registered as case crime no. 835 of 1995 under sections 147, 148, 149, 302 I.P.C. by Constable No. 355 Girish Kumar Sharma. Chik F.I.R. No. 833 is in the hand writing and signature of Constable Girish Kumar Sharma. He is conversant with the hand writing and signature of Constable Girish Kumar Sharma as he was posted with him. He has proved Ex. Ka.3 (G.D. No. 21) dated 29.10.1995 which was prepared by him in his hand writing and signature. He has further stated that no endorsement regarding receiving of any information on telephone on 29.10.1995 has been made in the G.D. On 23.10.1995 also, no endorsement regarding the information given by Laxmi Shanker Yadav against Angad Yadav, has been made in the G.D. of the police station. He next stated that it might be possible that Laxmi Shanker Yadav or his son have given any application to Chauki In-charge of Bandariya Bagh as proceeding under section 107/116 Cr.P.C. was initiated. On 28.10.1995, a notice for proceeding under section 145 Cr.P.C. was received in the police station from the Court in the matter of Angad Yadav and Laxmi Shanker Yadav which was endorsed in G.D. rapat no. 36 at 7:30 hours. On 29.10.1995 at 16:05 hours special report was sent to the authorities as the case was of murder, hence special report was sent.

14. P.W. 4 Dr. R.K. Mishra has submitted that on 29.10.1995, he was posted at medical college and was on post mortem duty. On 29.10.1995 at 12:30 hours, he had conducted the post mortem of the deceased Laxmi Shankar Yadav which was sent in an unsealed condition and he found following ante mortem injuries on his person:-

"1. Fire arm wound of entry 1/2 cm. x 1 cm. x abdominal cavity deep put at Ant. auxiliary line 12 cm. Above ASIS right side, 16 cm. lateral to umbilicus at 9:30 O'clock. Margins inverted.

2. Fire arm wound of entry 1/2 cm. x 1 cm. x bone deep 12 cm. above, right elbow in an outer aspect of right arm.

3. Wound of exit 12 cm. x 7 cm. x bone deep 6 cm. below axilla inner side of right arm wound communicating to injury no. 2 . All tissues in below. Two injuries are lacerated bone right humerous is fractured.

4. Fire arm wound of entry 1/2 cm. x 1 cm. x chest cavity deep put on left side of chest at post axillary line 9-1/2 cm. below left axilla 17 cm. lateral to nipple (left).

5. Wound of exit 7 cm. x 4 cm. x chest cavity deep margin inverted 7 cm. lateral to right nipple 9-1/2 cm. below axilla, on probing this wound is communicating to injury no. 4. On opening each injury on observation put under ... each injury bright red coloured blood fluid + clotted put in chest cavity 1/2 litre and in abdominal cavity 1 litre. 8th and 9th ribes right side fractured under injury no. 4 and 7th to 10th ribes left fractured under injury no. 5. Both lungs lacerated along with pleurae. Liver lacerated chest muscles lacerated under injury no. 4, 5 abdominal muscle lacerated Psoas muscle lacerated. 10th + 11th vertebra lacerated. Metallic piece of bullet found in vertebrae. Three in number sealed in double envelope and sent to S.S.P. Lucknow through police constable concerned."

15. He has proved the post mortem report of the deceased as Ex. Ka-5. The doctor opined that all the injuries on the person of the deceased, were caused by fire arm before his death. At the time of post mortem, the duration of death was 1/2 day old. The injuries in the ordinary course of nature, were sufficient to cause death. All the injuries were caused by Rifle on 29.10.1995 at about 9:30 a.m. The cause of death was found to be shock and hemorrhage as a result of fire arm injuries.

16. P.W. 5 S.I. Ram Charan Maurya in his deposition before the trial Court has stated that the F.I.R. of the present case was lodged at the police station at 10:45 a.m. on 29.10.1995 in his presence. He took over the investigation and proceeded to the spot with copy of the report of the chik etc. He examined Head Constable, who had prepared the chik F.I.R. and registered the case. On the spot, he recorded the statements of the informant-Vijay Kumar Yadav, Smt. Kumkum Yadav and Ram Charan and prepared the site plan of the place of occurrence at the instance of the informant and proved the same as Ex. Ka-6. On the spot, he recovered three cartridges of 315 bore and one bullet of rifle and broken telephone and taken the same in police custody. Blood stain and plain earth taken and sealed the same in three memo were prepared on which he put his signature and also taken the signature of the witnesses. He proved the same as Ex. Ka-7 to Ex. Ka-9. After the arrest of Ramji Prasad and Shiv Bhawan, their uniform, batch, belt and cap were taken in police custody. Rest of the accused had surrendered before the Court. As the said witness could not conclude the investigation, the remaining investigation was handed over to another Investigating Officer. The remaining investigation was conducted by S.I. Ved Pal Singh P.W. 7, who submitted charge-sheet against the accused persons and proved it as Ex. Ka-13.

17. P.W. 6 S.I. Chakki Lal Verma has stated before the trial Court that on 29.10.1995 he was posted as S.I. at police station Chowk, Lucknow and on the death memo being received he was entrusted with the task to conduct the inquest on the dead body of the deceased Laxmi Shanker Yadav. He prepared the inquest report and handed over the body to Constable Saroj Mishra for being taken to mortuary for post mortem examination. He prepared the relevant document such as Ex. Ka-10 challan nash, Ex. Ka.11, photo nash Ex. Ka. 12, police paper Ex. Ka-13 and Ex. Ka-11.

18. P.W. 7 S.I. Vedpal Singh has deposed before the trial Court that he took over the investigation of the case from Investigating Officer S.I. Ram Chandra Maurya, who was earlier investigating the matter. The witness stated that after concluding the investigation, he submitted charge-sheet against the accused persons which he has proved as Ex. Ka-13.

19. The trial Court after examining the evidence led by the prosecution and considering the defence has convicted and sentenced the appellant for the offence in question and being aggrieved by the same, the appellant has preferred the instant appeal.

20. Heard Sri Nagendra Mohan, learned counsel for the appellant, Sri Umesh Chandra Verma, learned A.G.A. for the State and perused the impugned judgment and order as well as lower Court record.

21. Learned counsel for the appellant argued that the appellant Angad Yadav was named in the F.I.R. along with other accused persons, namely, Surajpal Yadav and Ramesh Kaliya. During the course of investigation the involvement of one Chandrapal Yadav came into light along with accused Ramji Prasad and Shiv Bhawan. All of them were put to trial but two co-accused, namely, Ramji Prasad and Shiv Bhawan were acquitted by the trial Court and the appellant along with accused Surajpal Yadav, Chandrapal Yadav and Ramesh Kaliya was convicted. He argued that the appellant had no motive to commit the murder of the deceased as there was no animosity between the appellant and the deceased. He submitted that so far as co-accused Ramesh Kaliya, Chandrapal Yadav and Surajpal Yadav are concern, the appellant has no concern with the said co-accused persons, who had motive to commit the murder of the deceased. As per the prosecution case, appellant Angad Yadav has been assigned the only role of exhortation whereas other co-accused persons, namely, Ramesh Kaliya, Surajpal and Chandrapal opened fire with their rifles on the deceased Laxmi Shankar Yadav, who sustained fire arm injuries and fell down. The incident was witnessed by P.W. 1 Vijay Kumar Yadav, who is the informant and son of the deceased along with his wife P.W. 2 Kumkum Yadav, who is the daughter-in-law of the deceased but their testimony is unworthy to be believed as they are highly interested and partisan witnesses on close scrutiny of their evidence shows that they have made contradictory statements before the trial Court regarding the manner in which the incident had taken place.

22. He submitted that the F.I.R. of the incident was lodged after the inquest proceeding done and it is evident from the evidence of P.W. 1 that he did not disclose the identity or the involvement of the appellant Angad Yadav to the police, who had arrived soon after the incident. He had only stated that it was accused Surajpal and his associates, who have committed the murder of the deceased and the F.I.R. of the incident is an ante time document as in the panchayatnama of the deceased, no case crime number, police station etc. were mentioned.

23. It was further vehemently argued that the motive which has been suggested by the prosecution that there was animosity between the appellant and the deceased with respect to a public pathway and on 28.10.1995, a compromise also took place between the parties but on 29.10.1995, the appellant along with his 4-5 associates came to the place where his house was being constructed and was standing and within few minutes thereafter a white Gypsy with flag of Samajwadi Party had come from which 3-4 persons got down, who were armed with fire arm weapons. In the said Gypsy co-accused Ramesh Kaliya and Surajpal Yadav were present. He submitted that there was a compromise taken place between the appellant and the deceased, hence there was no occasion for the appellant to participate in the murder of the deceased with co-accused Surajpal Yadav, Chandrapal Yadav and Ramesh Kaliya with whom the appellant was not having good relation.

24. He argued that the appellant because of political rivalry in collusion with the police has been falsely implicated in the present case and has been given ornamental role of exhortation. He further pointed out that as per the evidence of P.W. 1, it has been stated that appellant Angad Yadav was getting the public pathway dig which was objected by the deceased Laxmi Shanker Yadav but the Investigating Officer-P.W. 4 did not find any such incident of digging at the place of occurrence nor he has shown any said place in the site plan. Further in the site plan Ex. Ka-5 which was prepared by the Investigating Officer, the place from where the appellant Angad Yadav had made exhortation to the co-accused to kill the deceased, has not been shown.

25. He submitted that during the course of cross examination PW-1 has admitted that in the F.I.R. he had not written that there was any guard or shadow of Angad Yadav with him nor there was any person in police uniform at the time of incident with Angad Yadav. He had seen the guard in police uniform and shadow of Angad Yadav and their name plate a day prior to the incident. He further in his cross examination has stated that he has neither seen any map of the house of Angad Yadav nor any sale deed. He also did not know the size of the plot of Angad Yadav. He further did not know the land on which Angad Yadav was digging foundation of the house. The said land was part of sale deed or not he did not mention in the F.I.R. The fact that in spite of his father had opposed the digging of the land/pathway, Angad Yadav abused him and continued digging, has not been mentioned by him in the F.I.R. He has further not mentioned in the F.I.R. that Angad Yadav was not happy with the compromise entered into between the parties. He stated that he had given the said statement to the Investigating Officer but if he has not mentioned the same, he cannot tell any reason.

26. He further argued that from the evidence of P.W. 1, it is apparent that he did not ever had any conversation with Angad Yadav or his associates and prior to the incident they have not insulted or used any filthy language to him. Angad Yadav once had met the witness and on the said occasion his conduct was good. The pathway with a width of 12 ft. on which digging was being done, did not belong to the witness as it was public pathway.

27. With regard to the evidence of P.W. 2 Smt. Kumkum Yadav wife of P.W. 1 and daughter-in-law of the deceased, it has been argued by learned counsel for the appellant that she has stated in her examination in chief the manner of incident stating that Angad Yadav along with Surajpal Yadav, Chandrapal Yadav and Ramesh Kaliya entered into the house and Chandrapal Yadav, Surajpal Yadav and Ramesh Kaliya were armed with rifle and her father-in-law, who was in his bed room and Angad Yadav exhorted to kill him on which Chandrapal Yadav entered into the bed room and dragged him into the hall and when she tried to interfere, she was pushed and thereafter Chandrapal Yadav, Surajpal Yadav and Ramesh Kaliya all the three fired one shot each from rifle. Thereafter, the deceased fell on the carpet which was on the floor and Surajpal, Chandrapal and Ramesh Kaliya also broke the phone which was kept on a table and went outside whereas P.W. 1 has narrated the incident stating that he saw Chandrapal Yadav dragged his father in a hall and at that time Surajpal and Ramesh Kaliya had also came in the hall and Surajpal Yadav was present in the gallery and Chandrapal had firstly assaulted by butt of country made pistol on the neck of his father and thereafter all the three accused fired at his father and Angad Yadav had exhorted his associates to kill the deceased so that he may not remain alive and at that time the two guards of Angad Yadav, namely, Ramji Prasad and Shiv Bhawan were standing at the door of the house which goes to show that the evidence of P.W. 1 and 2 are highly contradictory in nature.

28. It was also argued that P.W. 1 has stated that his wife and Chaukidar Ram Charan and one person Raj Deep, who is resident of Jaunpur and came to meet him, were present but the said persons, who were independent witnesses, were not produced by the prosecution.

29. He further argued that the two security guards of the appellant, namely, Ramji Prasad and Shiv Bhawan, who were also stated to be present with the appellant Angad Yadav as has been deposed by P.W. 1 and 2, have been acquitted by the trial Court as their involvement was found to be false, thus, the counsel for the appellant assailed the presence of the two eye witnesses, i.e., P.W. 1 and 2 at the place of occurrence and submitted that their evidence is not reliable one. Lastly it was argued that the reasoning given by the trial Court for convicting and sentencing the appellant for the offence in question is against the evidence on record, hence the appellant is entitled to be acquitted by this Court and the judgment and order of the trial Court be set aside.

30. Per contra, learned A.G.A. on the other hand vehemently opposed the arguments of learned counsel for the appellant and submitted that the incident had taken place at 9:30 a.m. in the morning on 29.10.1995 and the F.I.R. of the incident was lodged by P.W. 1 on the same day at 10:45 a.m. at the concerned police station which was at a distance of two kms. from the place of occurrence. He argued that though the appellant has assigned the role of exhortation as per the prosecution case and the deceased was shot dead by the associates of the appellant, namely, Surajpal Yadav, Chandrapal Yadav and Ramesh Kaliya by their respective fire arm weapon and the deceased has received three gun shot wound of entry and two wound of exit on his person and has died on account of ante mortem fire arm injuries and the main assailants have been killed in police encounter and have died, cannot be a ground to take sympathetic view regarding the appellant's role in the incident.

31. He submitted that the previous conduct of the appellant Angad Yadav in committing the murder of the deceased cannot be ignored by this Court. He submitted that a day prior to the incident, i.e., 28.10.1995 there was some talks about the settlement of the dispute with respect to public pathway between the deceased and the appellant but that was not taken seriously by the appellant. He also pointed out from the evidence of P.W. 5 that there were proceedings initiated under sections 107/116 against both the parties and on the disputed land also proceedings under section 145 Cr.P.C. was initiated.

32. He argued that there was strong motive for the appellant Angad Yadav to commit the murder of the deceased also as he was trying to grab the 12 feet land of public pathway which was being opposed by the deceased Laxmi Shankaer Yadav. On the day of incident, the appellant was getting the public pathway dig which was opposed by the deceased and the few minutes thereafter co-accused arrived at the place of occurrence with rifles and on the exhortation of the appellant, the deceased was done to death by the co-accused persons, namely, Surajpal Yadav, Chandrapal Yadav and Ramesh Kaliya as is apparent from the evidence of P.W. 1 and 2, who are son and daughter-in-law of the deceased and also the eye witnesses of the occurrence.

33. He submitted that the argument of learned counsel for the appellant that appellant Angad Yadav had no concern with the co-accused Surajpal Yadav, Chandrapal Yadav and Ramesh Kaliya is hardly of any significance as all the accused are men of criminal antecedents and the co-accused, who were also having enmity with the deceased had joined together to commit the brutal murder of the deceased. P.W. 1 and 2 have narrated the prosecution case in toto which is fully corroborated by the post mortem report of the deceased. Moreover, if any compromise had actually taken place between the appellant and the deceased then the appellant shall have tried to save the deceased from the co-accused persons, who had come on Gypsy and shot him dead with their respective rifles as he was also present at the place of occurrence. But the appellant's conduct was otherwise and instead of saving the deceased from co-accused persons he made an exhortation to the co-accused to kill the deceased which shows his common intention to murder the deceased.

34. The incident had taken place in broad day light and there is no possibility of falsely implicating the appellant and other co-accused persons by P.W. 1 for the murder of his father Laxmi Shankar Yadav, who is an eye witness of the incident. He pointed out that the appellant is also having a long criminal antecedent. He was earlier involved in five murder cases including the present one out of which in three cases though the appellant has been acquitted by the trial Court and one is pending trial hence, it cannot be said that he is innocent. He also submitted that minor discrepancies in the evidence of P.W. 1 and 2 cannot be a ground to disbelieve the prosecution case unless and until it shakes the prosecution case in toto. He argued that the trial Court has rightly convicted and sentenced the appellant for the murder of the deceased. The appeal is devoid of merit and it may be dismissed.

35. We have given a thoughtful consideration to the submissions advanced by learned counsel for the parties and have perused the impugned judgment and order of the trial Court along with its lower Court record.

36. Admittedly, the appellant Angad Yadav is named in the F.I.R. along with co-accused Ramesh Kaliya, Surajpal Yadav and as per allegation levelled in the F.I.R. and the statement of P.W.1-informant Vijay Kumar Yadav, who is the son of the deceased and P.W. 2 Smt. Kumkum Yadav-wife of P.W. 1 and daughter-in-law of the deceased, it is evident that the appellant has been assigned the role of exhortation and on his exhortation, accused Ramesh Kaliya and Surajpal Yadav shot dead the deceased with their respective rifles. During the course of investigation, the participation of co-accused Chandrapal Yadav has also come into light and he too is said to have fired at the deceased along with Ramesh Kaliya and Surajpal Yadav. The two gunners of the appellant, namely, Ramji Prasad and Shiv Bhawan were found to be standing along with appellant at the place of occurrence where the house of the appellant Angad Yadav was being constructed but during the course of trial, it was found that the two security guards of appellant Angad Yadav were not attached with the appellant on the day of the incident, hence the trial Court acquitted them of the charges.

37. In order to ascertain the involvement of the appellant in the present case whether he was present at the place of occurrence or not, this Court has to examine the previous conducted of the appellant along with the evidence of P.W. 1 Vijay Kumar Yadav and P.W. 2 Smt. Kumkum Yadav. Further in order to determine whether the conviction of the appellant by the trial Court can be sustained by this Court or not, in this regard it is to be noted that admittedly the appellant's house was being constructed at a place which was opposite to the house of the informant and in between there was a public pathway. The appellant Angad Yadav was trying to encroach and grab the 12 ft. land of the said public pathway by moving forward from the original place from where his house was being constructed and the deceased was raising objection to the said act of the appellant.

38. On 28.10.1995, in order to settle the dispute a meeting was convened and a compromise was entered into between them regarding the said dispute. It has come in the evidence of P.W. 1 that from the conduct of the appellant, it was apparent that the appellant was not happy or satisfied with the said compromise which had taken place between his father and the appellant.

39. On 29.10.1995, i.e., the date of incident, the appellant had come at his plot where his house was being constructed and was standing, along with 4-5 persons and few minutes thereafter a white Gypsy came there having banner of Samajwadi Party and 3-4 persons came out. Accused Ramesh Kaliya and Surajpal Yadav also came out from the said Gypsy and went inside the house of the informant along with appellant Angad Yadav and on the exhortation of Angad Yadv, who uttered "Maro sale ko aaj bachne na paye" his associates started firing on his father, who after being seriously injured, fell down and P.W. 2 Smt. Kumkum Yadav wife of P.W. 1 tried to resist the said accused persons but could not succeed. She witnessed the said incident along with Chaukidar Ram Charan and one Rajdev, who were present there. The deceased was taken to the Medical College in the injured condition where the doctor declared him dead.

40. It has been consistent case of the prosecution which is evident from the evidence of P.W. 1 Vijay Kumar Yadav and P.W. 2 Smt. Kumkum Yadav daughter-in-law of the deceased that on the exhortation of the appellant the co-accused persons fired at the deceased with their respective rifles and the deceased received as many as five gun shot wound out of which three wound of entry and two of exit. The incident had taken place in the broad day light at 9:30 a.m. and it was witnessed by P.W. 1 the informant Vijay Kumar Yadav and P.W. 2 Smt. Kumkum Yadav daughter-in-law of the deceased and there can be no mistake by them to identify the appellant and co-accused persons involved in the present case, who committed the brutal murder of the deceased in the heart of the city of Lucknow.

41. It has come in the evidence of the witnesses that the appellant was Ex. Minister of the State and he because of his political influence raising constructions on the public pathway also which was between the two houses and the deceased, who was also a strong man having status in the society opposed the appellant because of his highhandedness. The proceedings under section 107/116 Cr.P.C. has also been initiated between them as it has come in the evidence of P.W. 3 and also a notice under section 145 Cr.P.C. was received at the concerned police station regarding the dispute between the appellant and the deceased Laxmi Shanker Yadav which was endorsed in G.D. rapat no. 36 at 7:30 hours on 28.10.1995. P.W. 3 Ram Charan Maurya, who is the Investigating Officer of the present case has denied the suggestion that on 23.10.1995 and 28.10.1995 no incident had taken place nor any information about the incident was sent to the police outpost Bandariya Bagh of police station Hazratganj nor any police personnel were sent at the place of occurrence. He has stated that the proceedings under section 107/116 Cr.P.C. was initiated and S.I. T.B. Singh of police outpost Bandariyabagh had visited the place of occurrence as there was information about the apprehension of breach of peace, hence against both the parties proceedings under section 107/116 Cr.P.C. were initiated and further on the disputed land proceedings under section 145 Cr.P.C. was also initiated. Though he has stated that the endorsement of the said proceedings were not made in the case dairy. Thus, it is established that there was animosity between the deceased and the appellant and the appellant had strong motive to commit the murder of the deceased along with his associates and he in furtherance of common intention planned murder of the deceased and actively participated in the murder of the deceased along with co-accused, who shot him dead. The appellant was present at the place where his house was being constructed which is near the place of occurrence and the deceased was shot dead by the co-accused persons with their respective rifles.

42. The contention of learned counsel for the appellant that the appellant had no occasion to participate in the incident with the co-accused Surajpal Yadav, Ramesh Kaliya and Chandrapal Yadav as he had no concern with them and he was not having good terms with them as the co-accused were inimical to the appellant, is hardly of any significance as from the conduct of the appellant it is crystal clear that the appellant had planned the murder of the deceased as it has been established from the prosecution evidence that he was present at his plot along with his associates and was standing and few minutes thereafter co-accused Surajpal Yadav and Ramesh Kaliya along with 3-4 unknown persons arrived and the appellant went inside the house of the deceased along with co-accused persons and made an exhortation to the co-accused to kill the deceased, who shot him dead with their respective rifles, who succumbed to his injuries. The incident was witnessed by P.W. 1 Vijay Kumar Yadav, the informant, who is the son of the deceased and P.W. 2 Smt. Kumkum Yadav wife of P.W. 1 and daughter-in-law, who has categorically stated about the participation of the appellant along with co-accused persons in the incident which is fully corroborated by the medical evidence.

43. The next argument which has been raised by the learned counsel for the appellant that the F.I.R. of the incident was lodged after inquest proceedings have been conducted on the dead body of the deceased by the police as no details of case crime number, police station etc. were mention in the inquest report of the deceased, hence the F.I.R. is an ante time document, the said argument of learned counsel for the appellant is not acceptable at all as in view of the statement made by the informant Vijay Kumar Yadav before the trial court in which he had deposed that he had shown copy of the F.I.R. received by him in the police station to the Inquest Officer at the time of preparation of panchayatnama. The G.D. entry regarding the registration of the case Ext. Ka-3 reveals that on the written report of the informant Vijay Kumar Yadav, case was registered in the G.D. on 29.10.1995 at 10:45 a.m. as case crime no. 835 of 1995 under sections 147, 148, 149, and 302 I.P.C. vide rapat No. 21. The head Constable P.W. 3 Chandra Bhawan has entered in the witness box and has proved the entry and the factum of receiving of the written report in the police station at 10:45 a.m. on 29.10.1995. P.W. 6 S.I. Chakki Lal Verma, who conducted the inquest on the dead body of the deceased had deposed that on the basis of the death memo he was deputed to prepare inquest report and conducted the same and send the dead body for the post mortem through Constable Saroj Kumar Mishra. P.W. 1 has stated that as soon as the doctor declared his father dead in the hospital he got a report prepared and rushed to police station Hazaratganj, Lucknow where he lodged the F.I.R. and received the copy thereof and went to participate in the inquest proceedings. Thus, simply because case crime number and sections etc. have not been mentioned in the inquest report, it cannot falsify the prosecution case. In this regard the judgment of the Apex Court 2011 (6) SCC 288 (Brahm Swaroop and others vs. State of U.P.) is relevant to be considered in which the Apex Court has held that omissions in the inquest report are not sufficient to put the prosecution out of Court. The basic purpose of holding an inquest is to report regarding the apparent cause of death, namely, whether it is suicidal, homicidal, accidental or by some machinery etc. It is, therefore, not necessary to enter all the details of the overt acts in the inquest report. Thus, considering the proposition of law regarding the inquest, it cannot be said the same is fatal to the prosecution case and such omission could not necessarily lead to inference.

44. The next argument of learned counsel for the appellant is that security guards of the appellant, namely, Ramji Prasad and Shiv Bhawan, who were also stated to be present at the place of occurrence along with the appellant as has been deposed by P.W. 1 and 2, their participation have been found to be false and have been acquitted by the trial Court, hence the evidence of P.W. 1 and 2 for convicting the appellant cannot be relied upon. In this regard it is to be noted that the trial Court found from the evidence that said two accused whose participation have come into light during the course of investigation were found to be not deputed on the date and time of the incident and the act of the Investigating Officer for roping them in the present case cannot be a ground to exonerate the appellant, who was named in the F.I.R. and seen by P.W. 1 and 2 at the place of occurrence and active participation of the appellant in the incident has been stated by the said two eye witnesses and there is no reason to doubt their statement as their ocular testimony is corroborated by the medical evidence. Nevertheless, this Court cannot loose sight that the incident had taken place in broad day light at 9:30 a.m. in the morning in the heart of city of Lucknow where the deceased, who was also a man of strong personality having a reputation in the society, was done to death by the co-accused persons on the exhortation of the appellant. The appellant also have a criminal antecedent of 18 cases out of which five cases including the present one was registered against him under sections 302 I.P.C. though he has been acquitted in three cases under section 302 I.P.C. as has been stated by learned counsel for the appellant and the other co-accused persons were also men of criminal antecedents and two of them, namely, Surajpal Yadav and Chandrapal Yadav have been shot dead in police encounter and it cannot be said that the appellant could not join hand with the co-accused persons to murder the deceased as accused Surajpal Yadav was known to one Ravi Yadav with whom also the deceased had some dispute of land as has come in the evidence of P.W. 1.

45. The next submission of learned counsel for the appellant that P.W. 1 and 2 being the son and daughter-in-law of the deceased, are highly interested and partisan witnesses, hence their testimony is not worthy to credence, has no substance. It is true that P.W. 1 and 2 are son and daughter-in-law of the deceased but on the said count alone their testimony cannot be discarded as it is a settled legal proposition that evidence of closely related witnesses is to be required carefully scrutinized and appreciated before resting of conclusion, to convict an accused in a given case. In case, the evidence has a ring of truth, is cogent, credible and trustworthy it can be relied upon. P.W. 1 and 2 have categorically supported the prosecution case in the F.I.R. and have also given evidence before the trial Court against the appellant. The ocular testimony of P.W. 1 and P.W. 2 is corroborated by the post mortem report of the deceased which established their presence at the place of occurrence and the trial Court has rightly relied upon their evidence in convicting and sentencing the appellant in the present case.

46. Learned counsel for the appellant has further pointed out some contradiction and inconsistency in the evidence of P.W. 1 and 2 on the basis of which he submitted that they were not present at the place of occurrence but after scrutinizing the evidence of P.W. 1 and 2, who were put to endless cross examination by the accused persons including the appellant. From the evidence of P.W. 1 Vijay Kumar Yadav, it is evident that his examination-in-chief recorded on 12.3.1997 and thereafter cross examination was conducted till 6.11.1997. Similarly examination-in-chief of P.W. 2 Smt. Kumkum Yadav was recorded on 27.11.1997 and thereafter her cross examination was conducted till 8.12.1998 which goes to show that accused have made all efforts to dislodge the said witnesses but they remained intact as appears from the evidence given by them in the examination-in-chief supporting the prosecution case and minor discrepancies in evidence are not such which may create doubt about their testimony because of recording of their evidence went on for about eight months and more than one year respectively and such discrepancies, if any, were quite natural but not such which may discard their evidence. In this regard the judgment of the Apex Court in the case of Yogesh Singh vs. Mahabir Singh & Ors.; 2017 (11) SCC 195 is relevant to be taken note of on this point wherein the Apex Court has held that the minor discrepancies are not to be given undue emphasis and the evidence is to be considered from the point of view of trustworthiness. The test is whether the same inspires confidence in the mind of the Court. If the evidence is incredible and cannot be accepted by the test of prudence, then it may create a dent in the prosecution version. If an omission or discrepancy goes to the root of the matter and ushers in incongruities, the defence can take advantage of such inconsistencies. It needs no special emphasis to state that every omission cannot take place of a material omission and, therefore, minor contradictions, inconsistencies or insignificant embellishments do not affect the core of the prosecution case and should not be taken to be a ground to reject the prosecution evidence. The omission should create a serious doubt about the truthfulness or creditworthiness of a witness. It is only the serious contradictions and omissions which materially affect the case of the prosecution but not every contradiction or omission. In the instant case as has been stated that the cross examination which have been of the two eye witnesses, i.e., P.W. 1 and P.W. 2 have been put to by the accused about eight months and more one year respectively would show that such minor discrepancies were quite natural but from their evidence it does not go to the root of the matter which belies the present case, hence their evidence is trustworthy and has been rightly relied upon by the trial court while convicting and sentencing the appellant.

47. The law regarding the act of exhortation of an accused has been laid down by the Apex Court in catena of decisions some of which are relevant to be mention for the consideration of present case are quoted hereinbelow;

48. In Jainul Haque vs. State of Bihar : AIR 1974 SC 1651 Hon'ble Supreme Court in para 8 of its judgment has held as under:

"The evidence of exhortation is, in the very nature of things, a weak piece of evidence. There is quite often a tendency to implicate some person, in addition to the actual assailant by attributing to that person an exhortation to the assailant to assault the victim. Unless the evidence in this respect be clear, cogent and reliable, no conviction for abetment can be recorded against the person alleged to have exhorted the actual assailant."

49. In Ramesh Singh @ Photti vs. State of Andhra Pradesh : AIR 2004 (SC) 4545 Hon'ble Supreme Court in para 12 of its judgment has held as under:

"12. To appreciate the arguments advanced on behalf of the appellants it is necessary to understand the object of incorporating Section 34 in the Indian Penal Code. As a general principle in a case of criminal liability it is the primary responsibility of the person who actually commits the offence and only that person who has committed the crime can be held to guilty. By introducing Section 34 in the penal code the Legislature laid down the principle of joint liability in doing a criminal act. The essence of that liability is to be found in the existence of a common intention connecting the accused leading to the doing of a criminal act in furtherance of such intention. Thus, if the act is the result of a common intention then every person who did the criminal act with that common intention would be responsible for the offence committed irrespective of the share which he had in its perpetration. Section 34 IPC embodies the principles of joint liability in doing the criminal act based on a common intention. Common intention essentially being a state of mind it is very difficult to procure direct evidence to prove such intention. Therefore, in most cases it has to be inferred from the act like, the conduct of the accused or other relevant circumstances of the case. The inference can be gathered by the manner in which the accused arrived at the scene, mounted the attack, determination and concert with which the attack was made, from the nature of injury caused by one or some of them. The contributory acts of the persons who are not responsible for the injury can further be inferred from the subsequent conduct after the attack. In this regard even an illegal omission on the part of such accused can indicate the sharing of common intention. In other words, the totality of circumstances must be taken into consideration in arriving at the conclusion whether the accused had the common intention to commit an offence of which they could be convicted."

50. In Surendra Chauhan vs. State of Madhya Pradesh : 2000 4 SCC 110, Hon'ble Supreme Court in para 11 of its judgment has held as under:

"11. Under Section 34 a person must be physically present at the actual commission of the crime for the purpose of facilitating or promoting the offence, the commission of which is the aim of the joint criminal venture. Such presence of those who in one way or the other facilitate the execution of the common design is itself tantamount to actual participation in the criminal act. The essence of Section 34 is simultaneous consensus of the minds of persons participating in the criminal action to bring about a particular result. Such consensus can be developed at the spot and thereby intended by all of them. Ramaswami Ayhangar & Ors. v. State of Tamil Nadu2. The existence of common intention can be inferred from the attending circumstances of the case and the conduct of the parties. No direct evidence of common intention is necessary. For the purpose of common intention even the participation in the commission of the offence need not be proved in all cases. The common intention can develop even during the course of an occurrence. Rajesh Govind Jagesha v. State of Maharashtra3. To apply Section 34 IPC apart from the fact that there should be two or more accused, two factors must be established : (i) common intention and (ii) participation of the accused in the commission of an offence. If a common intention is proved but no overt act is attributed to the individual accused, Section 34 will be attracted as essentially it involves vicarious liability but if participation of the accused in the crime is proved and a common intention is absent, Section 34 cannot be invoked. In every case, it is not possible to have direct evidence of a common intention. It has to be inferred from the facts and circumstances of each case."

51. In Pandurang VS State Of Hyderabad, 1955 1 SCR 1083, Hon'ble Supreme Court in para 34 and 35 of its judgment has held as under:

"34. In the present case, there is no evidence of any prior meeting. We know nothing of what they said or did before the attack-not even immediately before. Pandurang is not even of the same caste as the others. Bhilia. Tukia and Nilia are Lambadas, Pandurang is a Hatkar and Tukaram a Maratha. It is true prior concert and arrangement can, and indeed often must be determined from subsequent conduct as; for example, by a systematic plan of campaign unfolding itself during the course of the action which could only be referable to prior concert and pre-arrangement, or a running away together in a body or a meeting together subsequently. But, to quote the Privy Council again,

"the inference of common intention should never be reached unless it is a necessary inference deducible from the circumstances of the case".

But to say this is 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". (Sarkar s Evidence, 8th edition, page 30).

35. The learned counsel for the state relied on - Mamand v. Emperor , AIR 1946 PC 45 (C), because in that case the accused all ran away and their Lordships took that into consideration to establish a common intention. But there was much more than that. There was evidence of enmity on the part of the accused who only joined in the attack but had no hand in the killing; and none on the part of the two who did the actual murder. There was evidence that all three lived together and that one was a younger brother and the other a tenant of the appellant in question. There was evidence that they all ran away together: not simply that they ran away at the same moment of time when discovered, but that they ran away together.

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. In the present case, we are of opinion that the facts disclosed do not warrant an inference of common intention in Pandurang s case. Therefore, even if that had been charged, no conviction could have followed on that basis. Pandurang is accordingly only liable for what he actually did."

52. From the law laid down in the above referred cases it can be deduced that evidence of exhortation is a weak piece of evidence. There is quite often a tendency to implicate some person, in addition to the actual assailant by ascribing to that person role of an exhortation to the assailant to assault the victim. Unless the evidence in this respect is clear, cogent and reliable, no conviction can be recorded against the person alleged to have exhorted the actual assailant.

53. The essence of joint liability in doing a criminal act is to be found in the existence of a common intention connecting the accused leading to the doing of a criminal act in furtherance of such intention. If the act is the result of a common intention then every person who did the criminal act with that common intention would be responsible for the offence committed irrespective of the share which he had in its perpetration. Common intention essentially being a state of mind it is very difficult to procure direct evidence to prove it. Hence, in most cases it has to be inferred from the conduct of the accused or other relevant circumstances of the case. The inference can be gathered by the manner in which the accused arrived at the scene, mounted the attack, determination and concert with which the attack was made, from the nature of injury caused by one or some of them. The contributory acts of the persons who are not responsible for the injury can further be inferred from the subsequent conduct after the attack. Even an illegal omission on the part of such accused can indicate the sharing of common intention. The act need not be very substantial, it is enough that the act is only for guarding the scene for facilitating the crime. Presence of the accused, who in one way or other facilitate the execution of common design is tantamount to actual participation in the criminal act. The act need not necessarily be overt, even a covert act is enough, provided such a covert act is proved to have been done by the co-accused in furtherance of the common intention. To invoke Section 34 IPC two factors must be established : (i) common intention and (ii) participation of the accused in the commission of an offence. To fasten the liability u/s 34 IPC an act, whether overt or covert, is indispensable to be done by a co-accused. If no such act is done by a person, even if he has common intention with the others for the accomplishment of the crime, Section 34, IPC cannot be invoked for convicting that person. In other words, the accused who only keeps the common intention in his mind, but does not do any act at the scene, cannot be convicted with the aid of Section 34, IPC. To ascertain common intention, totality of circumstances must be taken into consideration in arriving at the conclusion whether the accused had the such intention to commit an offence of which he could be convicted.

54. Thus, this Court after scrutinizing the evidence lead by the prosecution and the defence of the accused, who had only pleaded for his false implication in the present case and has not denied his presence at the place of occurrence, and his previous conduct goes to show that the appellant has played an active role in the instant case by instigating the co-accused persons for killing the deceased and uttered "Maro sale ko aaj bachne na paye" on which co-accused persons have committed the murder of the deceased with their respective rifles in broad day light which had been witnessed by P.W. 1 and 2, namely, Vijay Kumar Yadav (informant) and Smt. Kumkum Yadav, who are son and daughter-in-law of the deceased and the ocular testimony is corroborated by the medical evidence and considering the law laid down by the Apex Court in cases referred above regarding exhortation, we are of the opinion that the trial Court has rightly convicted and sentenced the appellant for the offence under section 302/34 I.P.C., hence does not require any interference by this Court. The impugned judgment and order passed by the trial Court is hereby upheld.

55. The appeal lacks merit and is accordingly, dismissed.

56. The appellant is stated to be in jail. He shall remain in jail to serve out the sentence as has been awarded by the trial Court.

	      (Rajeev Singh, J.)     (Ramesh Sinha, J.)
 
Dated/- 16.03.2021.
 
Shiraz.