Mansingh vs State Of M.P.
2022 Latest Caselaw 6241 MP

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              High Court of Madhya Pradesh
                    Bench at Gwalior
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       DB:- Hon'ble Shri Justice G.S. Ahluwalia &
       Hon'ble Shri Justice Rajeev Kumar Shrivastava

                      CRA No. 312 of 2011

           Man Singh and Another vs. State of MP

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Shri Arun Pateriya, learned counsel for appellants.
Shri A.K.Nirankari, learned counsel for respondent/ State.
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Reserved on :                                        11-04-2022
Whether approved for reporting :                     ......../......
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                               JUDGMENT

(Delivered on 27/04/2022)

Per Rajeev Kumar Shrivastava, J:-

The present Criminal Appeal u/S 374 of CrPC has

been preferred by appellants Man Singh and Narendra

Singh, assailing the impugned judgment of conviction and

order of sentence dated 14-03-2011 passed by Second

Additional Sessions Judge, Morena (MP) in Sessions Trial

No.204/2007 whereby appellant Man Singh has been

convicted u/S 302 read with Section 34 of IPC and

appellant Narendra Singh has been convicted u/S 302 of

IPC and they have been sentenced to undergo Life

Imprisonment with fine of Rs.1,000/- with default

stipulation.

(2) Suffice to say that appellant Narendra Singh is the

son of appellant Man Singh and against his brother

(juvenile accused) Ramautar before the Juvenile Court,

separate charge sheet has been filed by Police Station Mata

Basaiyya.

(3) In a nutshell, prosecution case is that on 15-08-2007

at 08:00 in the morning complainant Ramlakhan (PW1)

was in talking terms with Atar Singh (PW2) outside the

Baithak of his house. On the unmettaled way (Kharnja) of

outside of Baithak, when a quarrel was going on between

juvenile accused Ramautar and Jeetu (son of Ramveer) at

that juncture, Ramveer came there and scolded his son

Jeetu. Accused Narendra Singh and accused Man Singh

armed with a licensed mouser gun came there. At the

instigation of appellant- accused Man Singh and juvenile

accused Ramautar, appellant- accused Narendra Singh

caused fire by his mouser gun at Ramveer due to which,

gunshot hit the right chest of Ramveer and blood started

oozing. Thereafter, Ramveer fell down on the ground and

he remained unconscious. Complainant Ramlakhan (PW1)

and Aatar Singh (PW2) immediately rushed towards the

spot from where accused persons fled away. Other

villagers also reached the spot. Injured Ramveer was

brought to Morena Hospital, where a Dehati Nalishi Ex.P1

was recorded, from where due to serious condition, the

injured Ramveer was referred to JA Hospital, Gwalior

where he died. On the basis of merg intimation, a Crime

was registered against accused vide Ex.P18 and the matter

was investigated. After completion of investigation and

other formalities, police filed charge-sheet against

accused- appellant Narendra u/S 302 of IPC and against

accused -appellant Man Singh u/S 302 read with Section

34 of IPC.

(4) The accused persons were charged with aforesaid

offence which was abjured by them and claimed for trial.

In their defence, they pleaded that they have been falsely

implicated and in the morning of the alleged incident,

Jeetu (son of deceased Ramveer) molested Roobi (the

daughter of accused Man Singh) whereby the people of

locality became furious and some unknown person caused

gunshot fire, which hit at the chest of Ramveer. Appellants

have got examined Roobi as DW1 in their defence.

(5) Prosecution, in order to prove its case, examined as

many as sixteen witnesses viz. PW1 Ramlakhan, PW2

Aatar Singh, PW3 Preeti, PW4 Rammoorti Devi, PW5

Jitendra, PW6 Satish Tiwari, PW7 Dr.Anoop Gupta, PW8

Mehtab Singh, PW9 RP Sharma, PW10 Dr.JN Soni, PW11

Sundar Singh, PW12 Suresh Chand Sharma, PW13 Munna

Khan, PW14 Bhanwar Singh Tomar, PW15 Bheem Singh

Tomar and PW16 Shailendra Govil.

(6) The Trial Court, after evaluating the prosecution

evidenc, convicted and sentenced the appellants for the

offence, as mentioned in para 1 of this judgment.

(7) It is contended on behalf of appellants that the Trial

Court has discarded the relevant omissions in prosecution

evidence and committed an error by relying upon evidence

of interested witnesses. It is further contended that it is

unnatural to remain present of the alleged eye-witnesses on

the spot who were the relatives of deceased, therefore,

their testimony is liable to be discarded due to

contradictions in regard to role assigned by appellants.The

appellants have been falsely implicated since no overt act

has been assigned to them. It is further contended that

evidence regarding to verbal exhortation should not be

readily believed because oral evidence relating to

exhortation is of a weak type of evidence and the Court

should be reluctant to accept that evidence. In support of

contention, the counsel for the appellants has relied upon

the judgment of Hon'ble Apex Court in the case of Jainul

Haque vs. State of Bihar, reported in AIR 1974 SC 45. It

is further contended that the Trial Court has wrongly

convicted appellant accused Man Singh u/S 302 read with

Section 34 of IPC although his act does not fall within the

scope of Section 34 IPC. The prosecution has concealed

the report lodged by Shyam Singh at Police Check-post

and the independent witnesses were not examined before

the Trial Court. Although in the FIR it was mentioned that

at the time of incident, PW3 Preeti, PW4 Rammoorti &

PW5 Jitendra Singh were present, despite the Trial Court

has committed an error on relying upon their testimony. It

is further contended that Mahaveer Singh Bhadauriya,

relative of witnesses was posted on the post of Head

Constable at Police Station Mata Basaiyya and during the

entire investigation proceedings, he had taken special

interest in the matter in question. Hence, it is prayed that

the impugned judgment passed by Trial Court deserves to

be set aside.

(8) In response, the Counsel for the State supported the

impugned judgment and contended that no material

inconsistency of contradiction has been emerged from the

evidence of eye-witnesses. There is no basis to discredit

presence of eye-witnesses and nothing has been elicited in

the course of their cross-examination to doubt their

presence. It is further contended that there was no long

interval between the act and pre-meditation as well as plan

formed suddenly by the accused persons. In order to apply

Section 34 IPC it is not necessary that prosecution must

prove an act was done by a particular person. It is further

contended that at the instigation of appellant accused Man

Singh, appellant accused Narendra Singh armed with a

lethal weapon i.e. mouser gun committed murder of the

deceased and entire chain of happenings also indicates

only sole fact that appellant accused Man Singh is not only

creator of entire happenings, but also an instigator. The

entire evidence on record also clearly establishes a

common intention in pursuance of which, appellant

accused Man Singh exhorted appellant- accused Narendra

to kill deceased Ramveer and the prosecution is not

required to prove that there was an elaborate plan between

the accused to kill the deceased or a plan was in existence

for a long time. There being no infirmity in the impugned

judgment and the findings arrived at by Trial Court do not

require any inference by this Court. Hence, the present

criminal appeal deserves dismissal.

(9) The moot question arises for determination of

present appeal as to whether in furtherance of common

intention and at the instigation or exhortation of appellant

accused Man Singh, appellant- accused Narendra Singh

fired gunshot by his mouser gun on the chest of deceased

Ramveer and committed his murder or not ?

(10) Heard the counsel for the parties and perused record

of Trial Court.

(11) Ramlakhan (PW1) who is the real niece of deceased

Ramveer, in his deposition, stated that on the date of

incident, i.e. 15-08- 2007 he along with Aatar Singh were

talking each other outside of Baithak of his house. Prior to

that, on the unmettaled way (Kharnja) of outside of

Baithak, a quarrel was going on between Ramautar and

Jeetu. At that time, Ramveer came there, scolded his son

Jeetu and sent him to home. Accused Narendra Singh and

accused Man Singh armed with his licensed mouser gun

reached there and at the instigation of accused Man Singh

and Ramautar, appellant accused Narendra Singh caused

fire by his mouser gun at Ramveer due to which gunshot

hit the right chest of Ramveer. Ramveer fell down on the

ground and blood started oozing. This witness further

deposed that he along with Aatar Singh immediately

rushed towards the place and thereafter brought Ramveer

to Morena Hospital for his treatment where a Dehati

Nalishi was recorded vide Ex.P1. Testimony of Aatar

Singh (PW2) in his examination and cross-examination is

similar to that of testimony of Ramlakhan (PW1) and

remained unchanged.

(12) Preeti (PW3) who is the daughter of deceased

Ramveer, in her deposition, stated that on the date of

incident at around 08:00 in the morning, she along with her

mother Rammoorti and brother Rupendra were on the roof

of first floor of their house. All of a sudden, they heard a

noise and saw that at the instigation of Man Singh and

Ramautar, accused Narendra caused fire by his mouser

gun which hit on the right chest of her father. She along

with her mother immediately rushed towards the spot and

saw that her father lying on the ground remained

unconscious. Her cousin Ramlakhan and Aatar Singh

immediately came there and thereafter, his father was

brought to the Hospital. Testimony of this witness is

similar to that of evidence given by her mother PW4

Rammoorti Devi and her brother PW5 Jitendra in their

examination as well as in cross-examination and the same

remained unchanged. Statement of complainant

Ramlakhan has been further supported by Aatar Singh

(PW2), wife of deceased Rammoorti Devi (PW4), daughter

of deceased Preeti (PW3) and son of deceased Jitendra

(PW5).

(13) Dr. Anoop Gupta (PW7), in his deposition stated

that on 15th August, 2007 he was posted as Assistant

Surgeon in District Hospital Morena. While proving MLC

report Ex.P10 of Ramveer, this witness deposed that

injured Ramveer being produced for medical examination

by his nephew Sangram Singh before him and he

conducted medical examination of injured Ramveer. One

entry wound size 6 cm below armpit of injured Ramveer

and charring and blackening were present whereby thick

blood was oozing out and one exit wound was also found

on the back of injured Ramveer. This witness further

deposed that since the patient was in serious condition,

therefore, he referred injured Ramveer to JA Hospital,

Gwalior and intimated Police Check Post of District

Hospital Morena vide Ex.P11.

(14) RP Sharma (PW9) in his deposition stated that on

15-08-2007 he was posted as ASI at Police Station

Kampoo (JAH Chowki) Gwalior. On giving merg

intimation Ex.P15 from the Head Constable Ramesh

Chandra, he reached mortuary of JA Hospital and prepared

Safina form vide Ex.P2 and prepared lash panchnama

Ex.P3 and thereafter, a requisition form for conduction of

postmortem of deceased Ramveer was prepared vide

Ex.P16.

(15) Dr.J.N Soni (PW10) in his evidence stated that he

was posted as Professor & Head of Department, Forensic

Medicine and Toxicology, GR Medial College, Gwalior on

15-08-2007 and on the said date at around 02:00 pm he

conducted postmortem of the deceased after receipt of

requisition form Ex.P16. Postmortem report is Ex.P17.

This witness in his evidence has specifically deposed that

distance of gunshot fire was about more than 3-4 feet.

Entry and exit wound, mark of charring and blackening

were found on the corpse. rigor mortis were present all

over the body of deceased and injuries were ante mortem

in nature. According to the opinion of doctor, all injuries

are sufficient to cause death in the ordinary course of

nature. Death of deceased was due to shock and

haemorrhage as a result of thoracic injury. Injury was

caused by firearm from distant shot. Death of deceased was

homicidal in nature. Duration of death was within 6-48

eight hours since postmortem examination.

(16) FSL report Ex.P22 has also been found proved

regarding causing fire from rifle of accused Narendra and

gun was found in working condition and earlier, fire has

been made from it.

(17) So far as the contention of learned counsel for the

appellants that Mahaveer Singh Bhadauriya, one of

relatives of witnesses was posted as Head Constable at PS

Mata Basaiyya and during the entire investigation

proceedings, he has taken special interest is concerned,

Mehtab Singh (PW9) in para 2 of his deposition stated that

he had no knowledge about posting of Mahaveer Singh

Bhadauriya as Head Constable in the said Police Station.

This witness in para 3 of his cross-examination admitted

that he is not giving any false statement against accused on

the say of Mahaveer Singh Bhadauriya.

Satish Tiwari (PW6) in his evidence stated that on

18-08-2007 he was posted as Constable in PS Mata

Basaiyya and on the said date, Constable Banwari brought

incriminating seized articles (Ex.P9) from Gwalior

Hospital and in his presence, same were produced before

the Head Constable Motiram, who had prepared the

seizure memo Ex.P10 thereafter.

Similarly, Suresh Chandra Sharma (PW12) in his

deposition stated that on 15-08-2007 he was posted as

Head Constable at Police Station Mata Basaiyya. On the

said date, Constable Asharam initially recorded a Dehati

Nalishi under Sections 307, 294, 34 IPC and thereafter, on

the basis of writings of Shailendra Govil, Crime

No.89/2007 under Sections 307, 294, 34 of IPC was

registered vide Ex.P18 where he put his signature from ''A

to A'' and the Constable Asharam also put his signature

from ''B to B'' and copy of same was sent to the Court of

JMFC vide Ex.P19. This witness in para 04 of his cross-

examination denied that a report was lodged by Shyam

Singh of Village Pariksha. This witness in para 5 of his

cross-examination stated that he had no knowledge that

Mahaveer Singh Bhadauriya who is one of relatives of

deceased, namely, Ramveer, Ramlakhan & Aatar Singh on

the date of incident was posted Head Constable at PS

Mata Basaiyya. This witness in his cross- examination

denied that report has been lodged falsely on the say of

Mahaveer Singh Bhadauriya.

Similarly, another witness namely, Kotwar of the

Village, Munna Khan (PW13), in para 05 of his cross-

examination deposed that he knows Mahaveer Singh

Bhadauriya, who was posted as Head Constable at PS

Mata Basaiyya. This witness although admitted that in the

village at the time of preparation of Panchnama Ex.P5

Mahaveer Singh Bhadauriya, relative of deceased was

present but in para 6 of his cross-examination denied that

all actions in the matter have been done on the say of

Mahaveer Singh Bhadauriya. Merely because, presence of

Mahaveer Singh Bhadauriya does not affect entire

proceedings of investigation and it also does not cast any

doubt on the story of prosecution and the entire

investigation proceedings fall beyond reasonable doubt.

(18) So far as the next contention of counsel for the

appellants that a quarrel took place between complainant

party and accused party on the question of molestation of

Roobi (daughter of accused Man Singh) and an unknown

person had caused fire which hit deceased is concerned,

from perusal of impugned record, it is apparent that there

is no report lodged regarding molestation by Jeetu with

Roobi whereupon furious people were gathered on the date

of alleged incident and none of villagers has been

examined in the Court to corroborate evidence of

witnesses. Even, Kotwar of Village namely, Munna Khan

(PW13) in his evidence deposed that no such incident had

occurred in village. The accused persons and the

complainant party both belong to same family and their

houses are adjacent to each other on the same street. It is

reliable to commit such incident by Jitendra with member

of his family.

(19) So far as the next contention of counsel for the

appellants that the statement of Defence Witness is also

entitled for same treatment in respect of credibility as it is

given to the Prosecution Witnesses is concerned, in the

present case at hand, from the statement of DW1 Roobi it

is revealed that she has made her statement to save her

brother and father (appellants).

(20) So far as the question of seizure memo as well as

arrest memo is concerned, the Investigating Officer

Shailendra Govil (PW16) in his evidence deposed that on

the date of incident, he had prepared spot map Ex.P4.

Blood-stained earth, ID of the accused, two railway

warrants and one empty cartridge of 315 bore gun were

seized vide seizure memo Ex.P5. On 03-09-2007, accused

persons were arrested vide arrest memo Ex.P2 & Ex.P3.

On interrogation, accused Narendra got recovered his gun

vide memorandum Ex.P14 which was kept in the house of

Bheem Singh of Village Kairachi and same was vide

seizure memo Ex.P20.

Witness Jitendra (PW5) has also corroborated

seizure of empty cartridge from the place of incident as

well as other articles as per seizure memo Ex.P5.

Constable Sundar Singh (PW11) and Constable

Mehtab Singh (PW8) are the witnesses of disclosure memo

of accused- appellant Narendra from whose behest, a

licensed gun was seized from the house of Bheem Singh of

Village Kairachi. Bheem Singh (PW15) and Bhanwar

Singh (PW14) who are relatives of accused persons being

real brothers, in the evidence have denied seizure of gun

from accused Narendra before them and have also declared

hostile but these two witnesses in their cross-examination

has specifically admitted about preparation of memo

Ex.P20 and seizure of gun from accused Narendra said to

have stated by Constable and on that basis, they signed on

memo Ex.P20. No such fact has come out from evidence of

Investigating Officer Shailendra Govil (PW16), Constable

Sundar Singh (PW11), Constable Mehtab Singh (PW8)

and witness Jitendra Singh in respect of seizure of licensed

315 bore gun at the behest of accused Narendra from the

house of Bheem Singh. No such evidence is available to

disbelieve the testimony of aforesaid witnesses regarding

seizure.

(21) So far as contention of counsel for the appellants

that the alleged eye-witnesses are related witnesses of the

deceased, therefore, their testimony is liable to be

discarded due to contradiction in regard to role assigned by

appellants is concerned, contention of counsel for the

appellants has no force. Although if there is some minor

contradiction in the evidence of witnesses, but it is not so

grave or of any significant nature, rather it is trivial in

nature and, therefore, on the basis of such contradiction

whole evidence of prosecution witnesses does not become

unreliable. It is settled principle of law that merely because

the witnesses may be related to the victim or the deceased,

their testimony may not be rejected. There is no legal

canon that only evidence of unrelated witnesses shall be

considered credible. On the contrary, we are of the view

that it is not natural for related witnesses to implicate a

person falsely leaving aside the actual culprit. It is needless

to say that the only interested witnesses want to see real

culprit is brought to book. In this regard, the Hon'ble

Supreme Court in the matter of Jayabalan vs. UT of

Pondicherry (2010) 1 SCC 199 has held as under:-

"23. We are of the considered view that in cases where the Court is called upon to deal with the evidence of the interested witnesses, the approach of the Court, while appreciating the evidence of such witnesses must not be pedantic. The Court must be cautious in appreciating and accepting the evidence given by the interested witnesses but the Court must not be suspicious of such evidence. The primary endeavour of the Court must be to look for consistency. The evidence of a witness cannot be ignored or thrown out solely because it comes from the mouth of a person who is closely related to the victim."

(22) Similarly, in the matter of Mohd. Rojai Ali vs.

State of Assam, (2019) 19 SCC 567, the Hon'ble Apex

Court reiterated distinction between ''interested'' and

''related witnesses'' and has held as under:-

''13. As regards the contention that all the eye- witnesses are close relatives of the deceased, it is by now well-settled that a related witness cannot be said to be an 'interested' witness merely by virtue of being a relative of the victim. This Court has elucidated the difference between 'interested' and 'related' witnesses in a plethora of cases, stating that a witness may be called interested only when he or she derives some benefit from the result of a litigation, which in the context of a criminal case would mean that the witness has a direct or indirect interest in seeing the accused punished due to prior enmity or other reasons, and thus has a motive to falsely implicate the accused......

14. In criminal cases, it is often the case that the

offence is witnessed by a close relative of the victim, whose presence on the scene of the offence would be natural. The evidence of such a witness cannot automatically be discarded by labelling the witness as interested. Indeed, one of the earliest statements with respect to interested witnesses in criminal cases was made by this Court in Dalip Singh v. State of Punjab, 1954 SCR 145, wherein this Court observed:

"26. A witness is normally to be considered independent unless he or she springs from sources which are likely to be tainted and that usually means unless the witness has cause, such as enmity against the accused, to wish to implicate him falsely. Ordinarily, a close relative would be the last to screen the real culprit and falsely implicate an innocent person..."

15. In case of a related witness, the Court may not treat his or her testimony as inherently tainted, and needs to ensure only that the evidence is inherently reliable, probable, cogent and consistent.''

(23) So far as next contention of the counsel for the

appellants that no conviction for instigation or exhortation

can be recorded against the accused appellant Man Singh

alleged to have exhorted the actual assailant is concerned,

in the case at hand, there is direct and positive evidence

that at the instigation of appellant accused Man Singh,

appellant- accused Narendra fired at the deceased.

Therefore, in the light of unanimous and categorical

statements of prosecution witnesses, the contention of

counsel for the appellants is not acceptable. The evidence

of witnesses relating to exhortation is clear, cogent and

reliable. In view whereof, it cannot be said that appellant

accused Man Singh was not sharing common intention

with appellant accused Narendra Singh in commission of

murder of deceased in question. In this regard, a reliance

can be placed on the decision of Rajasthan High Court in

the matter of Bhoma Ram Vs. State of Rajasthan 1987

WLN UC 128 wherein, it has been held as under:-

''10. Accused Laxmi Chand and Ram Chandra were convicted with the aid of Sections 34 and 109 IPC. Section 34 IPC does not create a distinct offence. It only lays down the principle of joint criminal liability on the ground that where two or more persons intentionally commit an offence jointly, it is just the same thing as if each of them had done it individually, The existence of common intention is largely inferential. Surrounding circumstances, conduct of the culprits preceding the commission of the offence during its commission and subsequent to commission furnish the materials from which inference is to be drawn as to whether the offence was committed in furtherance of the common intention of the culprits. The words spoken by the culprits, the instigation, exhortation and encouragement given by them before and during the commission of the crime are the usual factors from which the inference is to be drawn whether the crime was the out-come of the common intention of the all and the common intention of one was shared by the others. For the applicability of Section 34 IPC, the intention to commit the offence must be common to all the culprits and it must be shared by each of them. In Jai Narain v. State of Bihar, it was observed by their Lordships in para 10 of the judgment that where an offence is committed on the instigation of one of the culprits, that culprit giving the instigation can be safely convicted for the main offence with the aid of Section 34, IPC.

11 Section 109, IPC defines abetment. Among other things, it speaks that a person

abets the doing of a thing, who instigates any person to do that thing. Instigation in law, thus, indicates some active suggestion such as command, order exhortation etc. to the commission of the offence. It is a direct incitement by one to the other to commit the crime. Exhortation by one culprit to the other to commit the offence, constitutes abetment.

12. In the instant case, the evidence of the eye witnesses establishes that accused Laxmi Chand and Ram Chandra said to accused Bhoma Ram, "Here is Milki's servant Madan. Shoot him." The words "shoot him" are clearly indicative that they wanted the deceased to be killed and finished for ever. The pistol was fired by accused Bhoma Ram only after the aforesaid direction, order command or exhortation was given to him by accused Laxmi Chand and Ram Chandra.

13. It was argued by Mr. Doongarsingh that the evidence as regard to the verbal exhortation should not be readily believed. Oral evidence relating to exhortation is of weak type and the Court should be reluctant to accept that evidence. In support of his contention, Mr. Doongar Singh placed reliance on Jainual Haque v. State of Bihar . It was observed by their Lordships that the evidence of exhortation is by nature weak and conviction for abetment should not be recorded without clear, cogent and reliable evidence in this respect.''

(24) We shall also go back into the history to understand

Section 34 of IPC as it stood at the inception and as it

exists now. Generally speaking, Section 34 IPC provides

an acts done by several persons in furtherance of common

intention. 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.

(25) In the recent decision of Jasdeep Singh alias Jassu

vs. State of Punjab decided on 7th January, 2022 in

Criminal Appeal No.1584 of 2021 (Arising Out of SLP

(Crl) No. 1816 of 2019) the Hon'ble Apex Court has

observed as under in detail:-

''19. On a comparison, one could decipher that the phrase "in furtherance of the common intention" was added into the statute book subsequently. It was first coined by Chief Justice Barnes Peacock presiding over a Bench of the Calcutta High Court, while delivering its decision in Queen v. Gorachand Gope, (1866 SCC OnLine Cal 16) which would have probably inspired and hastened the amendment to Section 34 IPC, made in 1870. The following passage may lend credence to the aforesaid possible view:

"It does not follow that, because they were present with the intention of taking him away, that they assisted by their presence in the beating of him to such an extent as to cause death. If the object and design of those who seized Amordi was merely to take him to the thannah on a charge of theft, and it was no part of the common design to beat him, they would not all be liable for the consequence of the beating merely because they were present.

It is laid down that, when several persons are in company together engaged in one common purpose, lawful or unlawful, and one of them, without the knowledge or consent of the others, commits an offence, the others will not be involved in the guilt, unless the act done was in some manner in furtherance of the common intention. It is also said, although a man is present when a felony is committed, if he take no part in it, and do not act in concert with those who commit it, he will not be a principal merely because he did not endeavour to prevent it or to apprehend the felon. But if

several persons go out together for the purpose of apprehending a man and taking him to the thannah on a charge of theft, and some of the party in the presence of the others beat and ill-treat the man in a cruel and violent manner, and the others stand by and look on without endeavouring to dissuade them from their cruel and violent conduct, it appears to me that those who have to deal with the facts might very properly infer that they were all assenting parties and acting in concert, and that the beating was in furtherance of a common design. I do not know what the evidence was, all that I wish to point out is, that all who are present do not necessarily assist by their presence every act that is done in their presence, nor are consequently liable to be punished as principals."

20. Before we deal further with Section 34 IPC, a peep at Section 33 IPC may give a better understanding. Section 33 IPC brings into its fold a series of acts as that of a single one. Therefore, in order to attract Section 34 to 39 IPC, a series of acts done by several persons would be related to a single act which constitutes a criminal offense. A similar meaning is also given to the word 'omission', meaning thereby, a series of omissions would also mean a single omission. This provision would thus make it clear that an act would mean and include other acts along with it.

21. Section 34 IPC creates a deeming fiction by infusing and importing a criminal act constituting an offence committed by one, into others, in pursuance to a common intention. Onus is on the prosecution to prove the common intention to the satisfaction of the court. The quality of evidence will have to be substantial, concrete, definite and clear. When a part of evidence produced by the prosecution to bring the accused within the fold of Section 34 IPC is disbelieved, the remaining part will have to be examined with adequate care and caution, as we are dealing with a case of vicarious liability fastened on the accused by treating him

at par with the one who actually committed the offence. 22.What is required is the proof of common intention. Thus, there may be an offence without common intention, in which case Section 34IPC does not get attracted.

23.It is a team effort akin to a game of football involving several positions manned by many, such as defender, mid-fielder, striker, and a keeper. A striker may hit the target, while a keeper may stop an attack. The consequence of the match, either a win or a loss, is borne by all the players, though they may have their distinct roles. A goal scored or saved may be the final act, but the result is what matters. As against the specific individuals who had impacted more, the result is shared between the players. The same logic is the foundation of Section 34 IPC which creates shared liability on those who shared the common intention to commit the crime.

24.The intendment of Section 34 IPC is to remove the difficulties in distinguishing the acts of individual members of a party, acting in furtherance of a common intention. There has to be a simultaneous conscious mind of the persons participating in the criminal action of bringing about a particular result. A common intention qua its existence is a question of fact and also requires an act "in furtherance of the said intention". One need not search for a concrete evidence, as it is for the court to come to a conclusion on a cumulative assessment. It is only a rule of evidence and thus does not create any substantive offense.

25.Normally, in an offense committed physically, the presence of an accused charged under Section 34 IPC is required, especially in a case where the act attributed to the accused is one of instigation/exhortation. However, there are exceptions, in particular, when an offense consists of diverse acts done at different times and places. Therefore, it has to be seen on a case to case basis.

26.The word "furtherance" indicates the existence of aid or assistance in producing an effect in future. Thus, it has to be construed as

an advancement or promotion.

27.There may be cases where all acts, in general, would not come under the purview of Section 34 IPC, but only those done in furtherance of the common intention having adequate connectivity. When we speak of intention it has to be one of criminality with adequacy of knowledge of any existing fact necessary for the proposed offense. Such an intention is meant to assist, encourage, promote and facilitate the commission of a crime with the requisite knowledge as aforesaid.

28.The existence of common intention is obviously the duty of the prosecution to prove. However, a court has to analyse and assess the evidence before implicating a person under Section 34 IPC. A mere common intention per se may not attract Section 34 IPC, sans an action in furtherance. There may also be cases where a person despite being an active participant in forming a common intention to commit a crime, may actually withdraw from it later. Of course, this is also one of the facts for the consideration of the court. Further, the fact that all accused charged with an offence read with Section 34 IPC are present at the commission of the crime, without dissuading themselves or others might well be a relevant circumstance, provided a prior common intention is duly proved. Once again, this is an aspect which is required to be looked into by the court on the evidence placed before it. It may not be required on the part of the defence to specifically raise such a plea in a case where adequate evidence is available before the court.

29.The essence and scope of Section 34 IPC can be borne out of excerpts from the following judgments:

Suresh v State of U.P. ((2001) 3 SCC 673):

"24. Looking at the first postulate pointed out above, the accused who is to be fastened with liability on the strength of Section 34 IPC should have done some act which has nexus with the offence. Such an act need not be very substantial, it is enough that the act

is only for guarding the scene for facilitating the crime. The act need not necessarily be overt, even if it is only a covert act it is enough, provided such a covert act is proved to have been done by the co-accused in furtherance of the common intention. Even an omission can, in certain circumstances, amount to an act. This is the purport of Section 32 IPC. So, the act mentioned in Section 34 IPC need not be an overt act, even an illegal omission to do a certain act in a certain situation can amount to an act, e.g. a co-accused, standing near the victim face to face saw an armed assailant nearing the victim from behind with a weapon to inflict a blow. The co-accused, who could have alerted the victim to move away to escape from the onslaught deliberately refrained from doing so with the idea that the blow should fall on the victim. Such omission can also be termed as an act in a given situation. Hence an act, whether overt or covert, is indispensable to be done by a co-accused to be fastened with the liability under the section. But 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. xxx xxx xxx

40. Participation in the crime in furtherance of the common intention cannot conceive of some independent criminal act by all accused persons, besides the ultimate criminal act because for that individual act law takes care of making such accused responsible under the other provisions of the Code. The word "act" used in Section 34 denotes a series of acts as a single act. What is required under law is that the accused persons sharing the common intention must be physically present at the scene of occurrence and be shown not to have

dissuaded themselves from the intended criminal act for which they shared the common intention. Culpability under Section 34 cannot be excluded by mere distance from the scene of occurrence. The presumption of constructive intention, however, has to be arrived at only when the court can, with judicial servitude, hold that the accused must have preconceived the result that ensued in furtherance of the common intention. A Division Bench of the Patna High Court in Satrughan Patar v. Emperor, AIR 1919 Pat 111 held that it is only when a court with some certainty holds that a particular accused must have preconceived or premeditated the result which ensued or acted in concert with others in order to bring about that result, that Section 34 may be applied."

Lallan Rai v. State of Bihar, [(2003) 1 SCC 268]:

"22. The above discussion in fine thus culminates to the effect that the requirement of statute is sharing the common intention upon being present at the place of occurrence. Mere distancing himself from the scene cannot absolve the accused -- though the same however depends upon the fact situation of the matter under consideration and no rule steadfast can be laid down therefor."

Chhota Ahirwar v. State of M.P., [(2020) 4 SCC 126]:

"24. Section 34 is only attracted when a specific criminal act is done by several persons in furtherance of the common intention of all, in which case all the offenders are liable for that criminal act in the same manner as the principal offender as if the act were done by all the offenders.

This section does not whittle down the liability of the principal offender committing the principal act but additionally makes all other offenders

liable. The essence of liability under Section 34 is simultaneous consensus of the minds of persons participating in the criminal act to bring about a particular result, which consensus can even be developed at the spot as held in Lallan Rai v. State of Bihar, (2003) 1 SCC 268. There must be a common intention to commit the particular offence. To constitute common intention, it is absolutely necessary that the intention of each one of the accused should be known to the rest of the accused."

Barendra Kumar Ghosh v. King Emperor (AIR 1925 PC 1):

"...... the words of S. 34 are not to be eviscerated by reading them in this exceedingly limited sense. By S. 33 a criminal act in S. 34includes a series of acts and, further, "act" includes omissions to act, for example, an omission to interfere in order to prevent a murder being done before one's very eyes. By S. 37, when any offence is committed by means of several acts whoever intentionally co-operates in the commission of that offence by doing any one of those acts, either singly or jointly with any other person, commits that offence. Even if the appellant did nothing as he stood outside the door, it is to be remembered that in crimes as in other things "they also serve who only stand and wait". By S. 38, when several persons are engaged or concerned in the commission of a criminal act, they may be guilty of different offences by means of that act. Read together, these sections are reasonably plain. S. 34 deals with the doing of separate acts, similar or diverse, by several persons; if all are done in furtherance of a common intention, each person is liable for the result of them all, as if he had done them himself, for "that act" and "the act" in the latter part of the section must include the whole action covered by 'a criminal act' in the first part, because they refer to it. S. 37 provides that, when several acts are done so as to result

together in the commission of an offence, the doing of any one of them, with an intention to co-operate in the offence (which may not be the same as an intention common to all), makes the actor liable to be punished for the commission of the offence. S. 38 provides for different punishments for different offences as an alternative to one punishment for one offence, whether the persons engaged or concerned in the commission of a criminal act are set in motion by the one intention or by the other."

Mehbub Shah v. Emperor (AIR 1945 PC 148):

"....Section 34 lays down a principle of joint liability in the doing of a criminal act. The section does not say "the common intentions of all" nor does it say "an intention common to all." Under the section, the essence of that liability is to be found in the existence of a common intention animating the accused leading to the doing of a criminal act in furtherance of such intention. To invoke the aid of S. 34 successfully, it must be shown that the criminal act complained against was done by one of the accused persons in the furtherance of the common intention of all; if this is shown, then liability for the crime may be imposed on any one of the persons in the same manner as if the act were done by him alone. This being the principle, it is clear to their Lordships that common intention within the meaning of the section implies a pre-arranged 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 pre- arranged plan..."

Rambilas Singh & Ors. v. State of Bihar [(1989) 3 SCC 605]:

"7...It is true that in order to convict persons vicariously under section 34 or section 149 IPC, it is not necessary to prove that each and every one of them had

indulged in overt acts. Even so, there must be material to show that the overt act or acts of one or more of the accused was or were done in furtherance of the common intention of all the accused or in prosecution of the common object of the members of the unlawful assembly..."

Krishnan & Another v. State of Kerala [(1996) 10 SCC 508]:

"15. Question is whether it is obligatory on the part of the prosecution to establish commission of overt act to press into service section 34 of the Penal Code. It is no doubt true that court likes to know about overt act to decide whether the concerned person had shared the common intention in question. Question is whether overt act has always to be established? I am of the view that establishment of an overt act is not a requirement of law to allow section 34 to operate inasmuch this section gets attracted when "a criminal act is done by several persons in furtherance of common intention of all". What has to be, therefore, established by the prosecution is that all the concerned persons had shared the common intention. Court's mind regarding the sharing of common intention gets satisfied when overt act is established qua each of the accused. But then, there may be a case where the proved facts would themselves speak of sharing of common intention: res ipsa loquitur."

Surendra Chauhan v. State of M.P. [(2000) 4 SCC 110]:

"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...."

Gopi Nath @ Jhallar v. State of U.P.

[(2001) 6 SCC 620]:

"8. ...As for the challenge made to the conviction under Section 302 read with Section 23 IPC, it is necessary to advert to the salient principles to be kept into consideration and often reiterated by this Court, in the matter of invoking the aid of Section 34 IPC, before dealing with the factual aspect of the claim made on behalf of the appellant. Section 34 IPC has been held to lay down the rule of joint responsibility for criminal acts performed by plurality or persons who joined together in doing the criminal act, provided that such commission is in furtherance of the common intention of all of them. Even the doing of separate, similar or diverse acts by several persons, so long as they are done in furtherance of a common intention, render each of such persons liable for the result of them all, as if he had done them himself, for the whole of the criminal action - be it that it was not overt or was only covert act or merely an omission constituting an illegal omission. The section, therefore, has been held to be attracted even where the acts committed by the different confederates are different when it is established in one way or the other that all of them participated and engaged themselves in furtherance of the common intention which might be of a pre-concerted or pre-arranged plan or one manifested or developed at the spur of the moment in the course of the commission of the offence. The common intention or the intention of the individual concerned in furtherance of the common intention could be proved either from direct evidence or by inference from the acts or attending circumstances of the case and conduct of the parties. The ultimate decision, at any rate, would invariably depend upon the inferences deducible from the circumstances of each case."

Ramesh Singh @ Photti v. State of A.P. [(2004) 11 SCC 305]:

"12. ...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 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.......... "

Nand Kishore V. State Of Madhya Pradesh [(2011) 12 SCC 120)]:

"20. A bare reading of this section shows that the section could be dissected as follows:

(a) Criminal act is done by several persons;

(b) Such act is done in furtherance of the common intention of all; and

(c) Each of such persons is liable for that act in the same manner as if it were done by him alone.

In other words, these three ingredients would guide the court in determining whether an accused is liable to be convicted with the aid of Section 34.

While first two are the acts which are attributable and have to be proved as actions of the accused, the third is the consequence. Once the criminal act and common intention are proved, then by fiction of law, criminal liability of having done that act by each person individually

would arise. The criminal act, according to Section 34 IPC must be done by several persons. The emphasis in this part of the section is on the word "done". It only flows from this that before a person can be convicted by following the provisions of Section 34, that person must have done something along with other persons. Some individual participation in the commission of the criminal act would be the requirement. Every individual member of the entire group charged with the aid of Section 34 must, therefore, be a participant in the joint act which is the result of their combined activity.

21. Under Section 34, every individual offender is associated with the criminal act which constitutes the offence both physically as well as mentally i.e. he is a participant not only in what has been described as a common act but also what is termed as the common intention and, therefore, in both these respects his individual role is put into serious jeopardy although this individual role might be a part of a common scheme in which others have also joined him and played a role that is similar or different. But referring to the common intention, it needs to be clarified that the courts must keep in mind the fine distinction between "common intention" on the one hand and "mens rea" as understood in criminal jurisprudence on the other. Common intention is not alike or identical to mens rea. The latter may be coincidental with or collateral to the former but they are distinct and different.

22.Section 34 also deals with 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 persons is liable for that act in the same manner as if it was done by him alone. If the common intention leads to the commission of the criminal

offence charged, each one of the persons sharing the common intention is constructively liable for the criminal act done by one of them. (Refer to Brathi v. State of Punjab 1991 (1) SCC 519).

23. Another aspect which the court has to keep in mind while dealing with such cases is that the common intention or state of mind and the physical act, both may be arrived at the spot and essentially may not be the result of any predetermined plan to commit such an offence. This will always depend on the facts and circumstances of the case..."

Shyamal Ghosh V. State of West Bengal [(2012) 7 SCC 646)]:

"87. Upon analysis of the above judgments and in particular the judgment of this Court in the case of Dharnidhar v. State of Uttar Pradesh, [(2010) 7 SCC 759], it is clear that Section 34 IPC applies where two or more accused are present and two factors must be established i.e. common intention and participation of the accused in the crime. Section 34 IPC, moreover, involves vicarious liability and therefore, if the intention is proved but no overt act was committed, the section can still be invoked. This provision carves out an exception from general law that a person is responsible for his own act, as it provides that a person can also be held vicariously responsible for the act of others, if he had the common intention to commit the act. The phrase "common intention" means a pre-oriented plan and acting in pursuance to the plan, thus, common intention must exist prior to the commission of the act in a point of time. The common intention to give effect to a particular act may even develop on the spur of moment between a number of persons with reference to the facts of a given case."

30. The aforesaid principle has also been dealt with in extenso by the Apex Court in Virendra Singh V. State of Madhya Prades ((2010) 8 SCC 407) through the following paragraphs:

"15. Ordinarily, a person is responsible for his own act. A person can also be vicariously responsible for the acts of others if he had the common intention to commit the offence. The words "common intention" implies a prearranged plan and acting in concert pursuant to the plan. It must be proved that the criminal act was done in concert pursuant to the prearranged plan. Common intention comes into force prior to the commission of the act in point of time, which need not be a long gap. Under this section a pre- concert in the sense of a distinct previous plan is not necessary to be proved. The common intention to bring about a particular result may well develop on the spot as between a number of persons, with reference to the facts of the case and circumstances of the situation. Though common intention may develop on the spot, it must, however, be anterior in point of time to the commission of the crime showing a prearranged plan and prior concert. The common intention may develop in course of the fight but there must be clear and unimpeachable evidence to justify that inference. This has been clearly laid down by this Court in the case of Amrik Singh & Ors. v. State of Punjab, 1972 (4) SCC (N) 42:1972 CriLJ 465.

16. The essence of the liability is to be found in the existence of a common intention animating the accused leading to the doing of a criminal act in furtherance of such intention. Undoubtedly, it is difficult to prove even the intention of an individual and, therefore, it is all the more difficult to show the common intention of a group of persons. Therefore, in order to find whether a person is guilty of common

intention, it is absolutely necessary to carefully and critically examine the entire evidence on record. The common intention can be spelt out only from the evidence on record.

17. Section 34 is not a substantive offence. It is imperative that before a man can be held liable for acts done by another under the provisions of this section, it must be established that there was common intention in the sense of a prearranged plan between the two and the person sought to be so held liable had participated in some manner in the act constituting the offence. Unless common intention and participation are both present, this section cannot apply.

xxx xxx xxx

36. Referring to the facts of this case, the short question which arises for adjudication in this appeal is whether the appellant Virendra Singh can be convicted under section 30 with the aid of section 34 IPC. Under the Penal Code, the persons who are connected with the preparation of a crime are divided into two categories: (1) those who actually commit the crime i.e. principals in the first degree; and (2) those who aid in the actual commission i.e. principals in the second degree. The law does not make any distinction with regard to the punishment of such persons, all being liable to be punished alike.

37. Under the Penal Code, a person is responsible for his own act. A person can also be vicariously responsible for the acts of others if he had a common intention to commit the acts or if the offence is committed by any member of the unlawful assembly in prosecution of the common object of that assembly, then also he can be vicariously responsible. Under the Penal Code, two sections, namely, Sections 34 and 149, deal with them

circumstances when a person is vicariously responsible for the acts of others.

38. The vicarious or constructive liability under Section 34 IPC can arise only when two conditions stand fulfilled i.e. the mental element or the intention to commit the criminal act conjointly with another or others; and the other is the actual participation in one form or the other in the commission of the crime.

39. The common intention postulates the existence of a prearranged plan implying a prior meeting of the minds. It is the intention to commit the crime and the accused can be convicted only if such an intention has been shared by all the accused. Such a common intention should be anterior in point of time to the commission of the crime, but may also develop on the spot when such a crime is committed. In most of the cases it is difficult to procure direct evidence of such intention. In most of the cases, it can be inferred from the acts or conduct of the accused and other relevant circumstances. Therefore, in inferring the common intention under section 34 IPC, the evidence and documents on record acquire a great significance and they have to be very carefully scrutinized by the court. This is particularly important in cases where evidence regarding development of the common intention to commit the offence graver than the one originally designed, during execution of the original plan, should be clear and cogent.

40. The dominant feature of Section 34 is the element of intention and participation in action. This participation need not in all cases be by physical presence. Common intention implies acting in concert.

41. The essence of Section 34 IPC is a simultaneous consensus of the minds of

the persons participating in criminal action to bring about a particular result. Russell in his celebrated book Russell on Crime, 12th Edn., Vol. 1 indicates some kind of aid or assistance producing an effect in future and adds that any act may be regarded as done in furtherance of the ultimate felony if it is a step intentionally taken for the purpose of effecting that felony. It was observed by Russell that any act of preparation for the commission of felony is done in furtherance of the act.

42. Section 34 IPC does not create any distinct offence, but it lays down the principle of constructive liability. Section 34 IPC stipulates that the act must have been done in furtherance of the common intention. In order to incur joint liability for an offence there must be a prearranged and premeditated concert between the accused persons for doing the act actually done, though there might not be long interval between the act and the premeditation and though the plan may be formed suddenly. In order that Section 34 IPC may apply, it is not necessary that the prosecution must prove that the act was done by a particular or a specified person. In fact, the section is intended to cover a case where a number of persons act together and on the facts of the case it is not possible for the prosecution to prove as to which of the persons who acted together actually committed the crime. Little or no distinction exists between a charge for an offence under a particular section and a charge under that section read with section 34."

(26) The well-established principle of law underlying

provisions of Section 34 of IPC emerges from decision of

Justice Vivian Bose in Pandurang, Tukia and Bhillia vs.

The State of Hyderabad 1955 SCR (1) 1083 wherein it has

been held as under:-

"33. Now in the case of Section 34 we think it is well established that a common intention presupposes prior concert. It requires a pre-arranged plan because before a man can be vicariously convicted for the criminal act of another, the act must have been done in furtherance of the common intention of them all: Mahbub Shah v. King Emperor [72 IA 148 at 153 and 154]. Accordingly there must have been a prior meeting of minds. Several persons can simultaneously attack a man and each can have the same intention, namely the intention to kill, and each can individually inflict a separate fatal blow and yet none would have the common intention required by the section because there was no prior meeting of minds to form a pre-arranged plan. In a case like that, each would be individually liable for whatever injury he caused but none could be vicariously convicted for the act of any of the others; and if the prosecution cannot prove that his separate blow was a fatal one he cannot be convicted of the murder however clearly an intention to kill could be proved in his case: Barendra Kumar Ghosh v. King-Emperor [72 IA 148 at 153 and 154] and Mahbub Shah v. King-Emperor [52 IA 40 at 49] . As Their Lordships say in the latter case, "the partition which divides their bounds is often very thin: nevertheless, the distinction is real and substantial, and if overlooked will result in miscarriage of justice". 34. The plan need not be elaborate, nor is a long interval of time required. It could arise and be formed suddenly, as for example when one man calls on bystanders to help him kill a given individual and they, either by their words or their acts, indicate their assent to him and join him in the assault. There is then the necessary meeting of the minds. There is a pre-arranged plan however hastily formed and rudely conceived. But pre-arrangement there must be and premeditated concert. It is not enough, as in the latter Privy Council case, to have the same intention independently of each other, e.g., the intention to rescue another and, if necessary, to kill those who oppose." (emphasis

supplied)

(27) Similarly, in the matter of Virendra Singh v. State of

MP (2010) 8 SCC407 the Hon'ble Apex Court has

explained the ambit of words "in furtherance of common

intention of all" and has observed as under:-

''15. Ordinarily, a person is responsible for his own act. A person can also be vicariously responsible for the acts of others if he had the common intention to commit the offence. The words "common intention" imply a prearranged plan and acting in concert pursuant to the plan. It must be proved that the criminal act was done in concert pursuant to the prearranged plan. Common intention comes into force prior to the commission of the act in point of time, which need not be a long gap. Under this section a preconcert in the sense of a distinct previous plan is not necessary to be proved. The common intention to bring about a particular result may well develop on the spot as between a number of persons, with reference to the facts of the case and circumstances of the situation. Though common intention may develop on the spot, it must, however, be anterior in point of time to the commission of the crime showing a prearranged plan and prior concert. The common intention may develop in course of the fight but there must be clear and unimpeachable evidence to justify that inference. This has been clearly laid down by this Court in Amrik Singh v. State of Punjab [(1972) 4 SCC (N) 42 : 1972 Cri LJ 465] ."

(28) Followings are fundamental principles underlying

Section 34 of IPC:-

''(i) Section 34 does not create a distinct offence, but is a principle of constructive liability;

(ii) In order to incur a joint liability for an offence there must be a pre-arranged and pre- mediated concert between the accused persons

for doing the act actually done;

(iii) There may not be a long interval between the act and the pre-meditation and the plan may be formed suddenly. In order for Section 34 to apply, it is not necessary that the prosecution must prove an act was done by a particular person; and

(iv) The provision is intended to cover cases where a number of persons act together and on the facts of the case, it is not possible for the prosecution to prove who actually committed the crime.

(29) The above fundamental principles have been

adopted and applied by Hon'ble Apex Court in the matter

of Chhota Ahirwar v. State of MP (2020) 4 SCC 126 as

under:-

"26. To attract Section 34 of the Penal Code, no overt act is needed on the part of the accused if they share common intention with others in respect of the ultimate criminal act, which may be done by any one of the accused sharing such intention. [See Asoke Basak [Asoke Basak v. State of Maharashtra, (2010) 10 SCC 660 : (2011) 1 SCC (Cri) 85] , SCC p. 669]. To quote from the judgment of the Privy Council in the famous case of Barendra Kumar Ghosh [Barendra Kumar Ghosh v. King Emperor, 1924 SCC OnLine PC 49 : (1924-25) 52 IA 40 : AIR 1925 PC 1], "they also serve who stand and wait".

27. Common intention implies acting in concert. Existence of a prearranged plan has to be proved either from the conduct of the accused, or from circumstances or from any incriminating facts. It is not enough to have the same intention independently of each other."

(30) In the recent judgment of Sandeep v. State of

Haryana 2021 SCC Online SC 642, a two-judge Bench

of the Hon'ble Apex Court has held that an exhortation

given by an accused immediately before a co-accused fired

a shot killing the deceased would prove his involvement in

the crime beyond reasonable doubt. Accordingly, this

Court upheld the conviction of accused under Section 302

read with Section 34 of IPC.

(31) On going through the entire record as well as the

evidence of prosecution witnesses clearly establishes a

common intention in pursuance of which appellant accused

Man Singh exhorted appellant accused Narendra to cause

fire at deceased Ramveer due to which gunshot fire caused

by appellant-accused Narendra hit the right chest of

Ramveer. Complainant Ramlakhan (PW1), Aatar Singh

(PW2), Preeti (PW3), Rammoorti Devi (PW4) & Jitendra

(PW5) have specifically deposed in their testimony that the

death of deceased Ramveer was caused due to gunshot

injury sustained by him on his chest. In this context, no

such fact has been disclosed in their cross-examination

whereby their evidence can be disbelieved. Statements of

these witness have also been corroborated with

documentary evidence on record and there is no contrary

evidence available on record. Accused persons themselves

have admitted the death of Ramveer due to gunshot fire.

Therefore, it is proved beyond reasonable doubt that on the

alleged date of incident murder of deceased Ramveer was

committed by means of firearms. It appears from the record

that there was an elaborate plan between the accused to kill

the deceased. There is also direct and positive evidence

available on record against the appellants accused for

commission of murder of deceased.

(32) As discussed above, we are of considered opinion

that the prosecution having proved the charge of murder

levelled against the appellants and the Trial Court having

meticulously dwelt upon same, the impugned judgment of

conviction and the order of sentence thereof cannot be

faulted with as no interference is warranted.

(33) As a consequence, the present criminal appeal

preferred by appellants-accused deserves to be and is

hereby dismissed. The impugned judgment of conviction

and order of sentence dated 14-03-2011 passed by Second

Additional Sessions Judge, Morena (MP) in Sessions Trial

No.204/2007 is hereby affirmed.

(34) Since appellant No.1 Man Singh is on bail,

therefore, his bail bonds and surety bonds stand cancelled

and he be directed to surrender immediately before the trial

Court concerned to serve the remaining jail sentence. Since

appellant No.2 Narendra Singh is in jail, therefore, he be

directed to serve remaining jail sentence as awarded by

the Trial Court.

A copy of this judgment be sent to the concerned Jail

as well as a copy of this judgment along with record be

sent to the Trial Court concerned for information and

compliance.

                  (G.S. Ahluwalia)            (Rajeev Kumar Shrivastava)
                      Judge                              Judge




MKB

Digitally signed by MAHENDRA BARIK Date: 2022.04.27 17:04:23 +05'30'