1. Heard Sri Kamal Krishna, Senior Advocate assisted by Sri Shailendra Sharma, learned counsel for the appellants and Smt. Manju Thakur, learned A.G.A. I appearing for the State-respondent.

2. This appeal has been preferred by appellants, Munib Gupta and Suresh against the judgment and order dated 17.10.1986 passed by IVth Additional Sessions Judge, Azamgarh in S.T. No. 338 of 1985 convicting the appellants under Section 302/34 I.P.C. and awarding life imprisonment to each of them.

3. Record shows that appellant-Munib Gupta had died during the pendency of this criminal appeal before this Court and this appeal was dismissed as abated qua appellant-Munib Gupta by another co-ordinate Bench of this Court vide order dated 25.4.2018.

4. Briefly stated the facts of this case are that one Ram Sewak Mallah lodged a written report Ext. Ka1 at P. S. Madhuban on 21.7.1985 at about 7:05 A.M. examined as P. W. 1 with the allegations that he is the resident of village Mahadiya Kund, P. S. Madhuban, District Azamgarh. He carries on the business of fishing. He had relations with Kapil Deo Singh r/o village Sikari Kole in connection with fishing and helping each other. Ramadhar Gupta, the brother of Munib Gupta (deceased A1) of village Sipah was murdered in which Kapil Deo Singh was arrayed as an accused. Munib Gupa (deceased A1) in order to take revenge was seeking opportunity to murder Kapil Deo Singh. He had allured certain persons and colluded with them to get Kapil Deo Singh murdered. In that connection, Munib Gupta (deceased A1) had told the informant-P. W. 1 Ram Sewak Mallah to leave the company of Kapil Deo Singh time and again.

5. On 20.7.1985 at about 8:30 P.M. Kapil Deo Singh came at the house of informant-P. W. 1 Ram Sewak Mallah and told him to fetch fish and feed him. The informant then went in the Nala which flows in the south of his village and after catching fish cooked it and fed Kapil Deo Singh. Kapil Deo Singh after dinner slept in the hut of the informant existing in his sehan. The informant was also lying on a cot beside the cot of Kapil Deo Singh. At about 12:30 A.M., Munib Gupta (deceased A1), Suresh A2 and Matar A3 and one unknown person came armed with country made pistol and surrounded the informant. Munish Gupta (deceased A1) began to say that he had told him to abandon the company of Kapil Deo Singh but he had not left his company. While he was talking to P. W. 1 Ram Sewak Mallah, Vishwanath Pandey, Virendra and Jagdish Singh, P. W. 2 Sri Ram Singh came searching Kapil Deo Singh. They called the informant. Munib Gupta (deceased A1) then said that it was high time to murder Kapil Deo Singh and thereafter Munib Gupta (deceased A1) fired aiming at the chest of Kapil Deo Singh from a very close range. All the four accused fled in the south. The informant, Vishwanath and P. W. 2 Sri Ram saw the incident in the light of their torches. Virendra Pandey and Jagdish Singh also saw the incident in the torch light. Munib Gupta (deceased A1), Suresh A2 and Matar A3 were recognized by them. However the fourth accused could not be identified. The accused were chased but could not be nabbed. The dead body of Kapil Deo Singh was kept on a cot on the spot. The informant could not go to the police station in the night to lodge the F.I.R. on account of fear.

6. On the aforesaid written report of the incident, Madhuban police registered a case against the accused for comitting an offence punishable under Section 302 I.P.C. After investigation of the case, the police submitted a charge-sheet against the three named accused for comitting an offence punishable under Section 302 I.P.C.

7. Since the offence mentioned in the charge sheet was triable exclusively by the Court of Sessions, C.J.M. Azamgarh committed the case for the trial of the accused to the Court of Sessions Judge, Azamgarh where the case was registered as S.T. No. 338 of 1985 and made over for trial from there to the Court of IVth Additional Sessions Judge, Azamgarh who on the basis of the material collected during investigation and after affording opportunity of hearing to the prosecution as well as the accused-appellants framed charge under Section 302/34 I.P.C. against appellants, Munib Gupta, Suresh and Matar. The accused-appellants abjured the charge and claimed trial.

8. The prosecution in order to prove its case examined as many as six witnesses of whom P. W. 1 Ram Sewak Mallah and P. W. 2 Sri Ram were examined as witnesses of fact while P. W. 3 Constable Arjun Prasad who took the dead body of the deceased for post-mortem examination, P. W. 4 Head Constable Rambali who had written the chek F.I.R. Ext. Ka2, P. W. 5 Dr. S. H. Siddiqui, In-Charge Medical Officer who had conducted post-mortem examination on the dead body of deceased, Kapil Deo Singh and P. W. 6 Sub-Inspector Taukir Husain, the investigating officer of the case were produced as formal witnesses.

9. The accused-appellants in their statements recorded under Section 313 Cr.P.C. denied the prosecution case as false and alleged false implication. They also examined Ram Bilas Yadav and B. L. Yadav as D.W. 1 and D. W. 2.

10. The learned 4th Additional Sessions Judge, Azamgarh after considering the submissions advanced before him by the learned counsel for the parties and scrutinizing the evidence on record convicted the appellants under Section 302/34 I.P.C. and awarded aforesaid sentence to them. However, co-accused Matar was acquitted of the charge.

11. Hence this appeal.

12. Sri Kamal Krishna, learned senior counsel appearing for the appellant no. 2 submitted that even if the entire prosecution case as spelt out in the F.I.R. and the facts deposed by the witnesses of fact examined by the prosecution during the trial are accepted to be true, no offence against Suresh A2 is disclosed as admittedly the role of causing injury to the deceased was attributed to Munib Gupta (deceased A1) and as far as Suresh A2 is concerned, neither he has been assigned the role of exhortation or catching hold of the deceased or even surrounding the cot on which the deceased was sleeping nor facilitating Munib Gupta (deceased A1) to shoot deceased-Kapil Deo Singh. The prosecution case qua Suresh A2 is only to the effect that he along with co-accused, Matar had surrounded the informant-P. W. 1 Ram Sewak Mallah. He also submitted that Suresh A2 has falsely been implicated in the present case by informant-P. W. 1 Ram Sewak Mallah on account of his having filed a criminal case against him, first information report whereof has been brought on record and proved as Ext. Kha4.

13. The learned trial judge further committed a patent error of law in convicting Suresh A2 under Section 302 I.P.C. by invoking Section 34 I.P.C., although on the same set of evidence and identical role, co-accused, Matar was acquitted by him. There being no evidence on record even prima facie indicating at the complicity of Suresh A2 in the crime, neither his recorded conviction nor the sentence of life imprisonment awarded to him can be sustained.

14. Per contra Smt. Manju Thakur, learned A.G.A. I appearing for the State submitted that it being proved from the evidence of the witnesses of fact produced during the trial that Suresh A2 was present at the crime scene along with other co-accused when Munib Gupta (deceased A1) had shot at Kapil Deo Singh, his conviction recorded by the trial court by invoking Section 34 I.P.C. does not suffer from any illegality or legal infirmity. This appeal lacks merit and is liable to be dismised.

15. We have heard the learned counsel for the parties and perused the record very carefully.

16. The only question which arises for our consideration in this appeal is that whether Section 34 I.P.C. is applicable to the facts and circumstances of the case and whether the trial court was legally justified in convicting Suresh A2 under Section 302 I.P.C. and awarding life sentence to him by invoking Section 34 I.P.C.

17. Before proceeding to analyze and evalute the oral evidence on record with the object of finding out the answer to the question framed by us hereinabove, it would be useful to reproduce Section 34 of the I.P.C. and to have a glance at the interpretation of the aforesaid section as expounded by the Apex Court in its various decisions :

Section 34 I.P.C. : 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.]

In the case of Shyamal Ghosh vs State of West Bengal, (2012) AIR SC 3539 held that 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 Apex Court in the case of Mrinal Das & Ors vs State Of Tripu, (2011) AIR SC 3753 held that the burden lies on prosecution to prove that the actual participation of more than one person for commission of criminal act was done in furtherance of common intention at a prior concept.

The Apex Court in the case of Jai Bhagwan And Others vs State Of Haryana, (1999) AIR SC 1083 held that to apply Section 34 I.P.C. 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 common intention is proved but no overt act is attributed to the individual accused, Section34 I.P.C. will be attracted as essentially it involves vicarious liability but if participation of the accused in the crime is proved and common intention is absent, Section 34 I.P.C. cannot be invoked

The Apex Court in the case of Ramashish Yadav And Ors vs State Of Bihar, (1999) 8 SCC 555 [LQ/SC/1999/837] held that it requires a pre arranged plan and pre supposes prior concept, therefore, there must be prior meeting of mind. It can also be developed at the spur of moment but there must be pre arrangement or premeditated concept.

18. P. W. 1 Ram Sewak Mallah, informant had deposed before the trial court that he knew Kapil Deo Singh before the date of occurrence. He used to help him in fishing business and in that connection he had developed friendly relations with Kapil Deo Singh. Before the date of occurrence, one Ramadhar Gupta, brother of Munib Gupta (deceased A1) was murdered in which Kapil Deo Singh was arraigned as an accused. Munib Gupta (deceased A1) wanted to take revenge and he was looking for an opportunity to murder of Kapil Deo Singh. He had procured favour of some persons by offering money to them. Munib Gupta (deceased A1) had told the informant to leave the company of Kapil Deo Singh. At about 8:30 P.M., Kapil Deo Singh came to the house of the informant and requested him to cook fish for him. The informant prepared fish and fed Kapil Deo Singh. After dinner, Kapil Deo Singh slept in the hut of the informant. The informant also slept on a cot beside the cot of Kapil Deo Singh. At about 12:30 A.M., Munib Gupta (deceased A1), Suresh A2 and co-accused, Matar came armed with country made pistol and surrounded the informant. Munib Gupta (deceased A1) told the informant that he had instructed him to leave the company of Kapil Deo Singh but he did not abide by his instruction. Meanwhile, Virendra Pandey, Vishwanath, Jagdish and P. W. 2 Sri Ram came, searching for Kapil Deo Singh. They called the informant. Munib Gupta (deceased A1) then shouted that opportunity should not be missed and saying this, he fired from his country made pistol aiming at the chest of Kapil Deo Singh from a close range. He also declared that his object had been achieved. All the accused fled in the south-east. Informant, Vishwanath and Sri Ram had torches. They flashed their torches and recognized the accused. The accused were chased but they could not be caught. He could not go to the police station on the same night on account of fear of the accused. Next day at about 5 A.M., he went to the police station. One Rajnish Sahi scribed the report on his dictation then he lodged the report at the police station. He has thus supported the prosecution case in his examination-in-chief.

19. P. W. 2 Sri Ram stated that Kapil Deo Singh had gone to lookafter the agricultural field in the morning and had not returned till evening. His family members became scared. He then want in search of Kapil Deo Singh with Jagdish Singh, Vishwanath, Virendra Pandey and P. W. 1 Ram Sewak Mallah also accompanied them. He and Vishwanath had torches. They reached the house of P. W. 1 Ram Sewak Mallah at about 12:30 A.M., they flashed their torches and saw Munib Gupta (deceased A1), Suresh A2 and co-accused, Matar and one unknown person. They were armed with country made pistol. Kapil Deo Singh was asleep on a cot. Kapil Deo Singh was surrounded by the accused. P. W. 1 Ram Sewak Mallah was also lying on cot beside the cot of Kapil Deo Singh. Munib Gupta (deceased A1) fired from his country made pistol aiming the chest of Kapil Deo Singh. Munib Gupta (deceased A1) then said that his aim was achieved, saying this, all the accused fled in the east-south. The accused could not be caught. Kapil Deo Singh died on account of the gunshot injuries received by him in the incident. Kapil Deo Singh was named as an accused in case of murder of brother of Munib Gupta (deceased A1). On account of this enmity, the accused murdered Kapil Deo Singh. Blood had oozed on the spot. He thus also supported the prosecution case in his examination-in-chief.

20. Thus, upon a conjoint reading of the evidence of P. W. 1 Ram Sewak Mallah and P. W. 2 Sri Ram, it transpires that Munib Gupta (deceased A1) had instructed P. W. 1 Ram Sewak Mallah to leave the company of deceased-Kapil Deo Singh and on the date of incident, deceased-Kapil Deo Singh had come to the place of P. W. 1 Ram Sewak Mallah where he had cooked fish for him and after eating fish, he had slept on a cot in a hut in the sehan of P. W. 1 Ram Sewak Mallah. Munib Gupta (deceased A1) and Suresh A2 along with co-accused, Matar and one unknown person came the place of occurrence at about 1:30 A.M. on 21.7.1985 and surrounded the cot on which P. W. 1 Ram Sewak Mallah was sleeping. Munib Gupta (deceased A1) then scolded P. W. 1 Ram Sewak Mallah for not giving up the company of deceased-Kapil Deo Singh. In the meantime, P. W. 2 Sri Ram, the real brother of deceased-Kapil Deo Singh along with Vishwanath, Virendra Pandey and Jagdish also reached there in search of deceased-Kapil Deo Singh and inquired from informant-P. W. 1 Ram Sewak Mallah about Kapil Deo Singh on which Munib Gupta (deceased A1) exhorted that the opportunity should not be missed and he fired aiming the chest of Kapil Deo Singh from his country made pistol and thereafter, shouting that his object had been achieved, all the accused ran towards the south-east. Neither any overt act has been attributed to Suresh A2 nor even it is deposed against him that he had caught hold of the deceased. The role of firing at the deceased has specifically been assigned to Munib Gupta (deceased A1).

21. From the evidence of P. W. 1 Ram Sewak Mallah and P. W. 2 Sri Ram, it does not follow that Suresh A2 and the other co-accused had arrived at the place of incident with the common intention of committing the murder of Kapil Deo Singh. The evidence shows that they had gone to meet the informant and warn him to leave the company of the deceased. The meeting of the accused with the deceased was a chance incident and it was not the prosecution case that the accused-appellants were aware about the presence of deceased-Kapil Deo Singh in the hut of P. W. 1 Ram Sewak Mallah. None of the witnesses have deposed that Suresh A2 was in any manner inimical towards the deceased. On the other hand, there is evidence on record indicating that the first informant-P. W.1 Ram Sewak Mallah was harbouring animosity against Suresh A2 on account of his having filed a criminal case against him and in view of the above, the possibility of P. W. 1 Ram Sewak Mallah falsely implicating Suresh A2 in the murder of Kapil Deo Singh as a measure of vendetta, cannot be ruled out.

22. There is nothing in the evidence of the two witnesses of fact which may establish that Suresh A2 and the other accused who were present at the place of occurrence shared common intention. There is no evidence on record indicating that there was a pre plan or prior consent between the accused to commit the murder of Kapil Deo Singh.

23. Learned A.G.A. has failed to invite our attention to any evidence on record which may indicate that Kapil Deo Singh was murdered by the accused in pursuance of a common intention.

24. Thus, in view of the foregoing discussion, we hold that under the facts and the attending circumstances and the evidence on record, the conviction of Suresh A2 under Section 302 I.P.C. by the learned trial judge with the aid of Section 34 I.P.C., cannot be sustained and is liable to be set aside. We answer the question framed by us, is decided accordingly.

25. The appeal is allowed qua Suresh A2. Suresh A2 acquitted of the charged under Section 302/34 I.P.C. framed against him. The impugned judgment and order is accordingly set aside qua Suresh A2. Suresh A2 is on bail. He need not surrender. His bail bonds are cancelled and sureties are discharged. However, he shall comply with the requirements of mandatory provisions of Section 437-A Cr.P.C.

26. There shall be however no order as to costs.