Imtiyaz Murtaza, J.

1. The above appeals have their genesis in a composite judgement and order dated 30.11.2006 rendered by the Special Sessions Judge Court No. 3 J.P. Nagar. Criminal Appeal No. 698 of 2007 is a jail appeal preferred by Dharampal appellant. It would appear that S.T. Nos. 485 of 2003 State v. Suraj and Ors. 482 of 2003 State v. Suraj, 483 of 2003, State v. Dharampal and 484 of 2003 State v. Munne were knit together for trial by reason of being related to one and the same occurrence and a composite verdict has been rendered. It would further appear that Munne, Suraj and Dharampal appellants were convicted under Section 302 I.P.C and out of which Suraj and Dharampal have been sentenced to be hanged till death. Appellant Munne has been sentenced to undergo imprisonment for life upon his being held guilty under Section 302 34 IPC. The trial court also recorded conviction of the accused persons under Section 307 I.P.C. and each of them have been sentenced to suffer five years R.I. All the accused persons have further been convicted under Section 354 I.P.C. and each of them have been sentenced to undergo R.I. for two years. The trial court also recorded conviction of the appellants Suraj and Dharampal under Section 25 Arms Act and sentenced each of them to suffer R.I. for two years. Accused Munne has been further convicted under Section 4 25 Arms Act and sentenced to undergo R.I. for one year. All the accused persons have also been sentenced to pay fine separately on various counts as embodied in the judgement of the trial court.

2. Appellant Suraj is represented by Apul Misra, appellant Munne by Sri V.K. Mishra, K.S. Chahar, Sushil Kumar Tiwari and Brahm Singh and appellant Dharampal by Sri Rajiv Gupta. The State is represented by Sri K.N. Bajpai learned Additional Government Advocate.

3. We have heard the counsel for the parties at prolix length who have taken us through the entire record and judgement of the trial court in order to press home their respective points.

4. The incident is stated to have occurred on 4.8.2003 and the report of the occurrence was lodged at Police station Hasanpur at about 5 p.m. by the informant namely, Ram Prasad to the effect that the prosecutrix namely Sumrati daughter of Daulat and Kamlesh daughter of one Futteh Singh of village Kakathaur had gone to the field to collect grass and when they were busy cutting grass in the field adjacent to the field of sugar-cane of Nathu, accused persons who were sitting on the edge of the field, caught hold of the girls and dragged them inside the field. Upon the screams raised by the aforesaid girls, the village people who were present in their respective fields nearby namely, Nanak, Chandrapal, Harpal, Shanker, Ramahar, Nainsukh, Inder, Ramautar, Nathu Singh Prem Giri, Hari Om Bihari, Gana Pooran etc. rushed to the rescue of the girls. Upon noticing the village people converging to their side, the accused persons freed the girls from the clutches and began to flee and fired which hit Nanak deceased who slumped down on the ground. However, the village people continued to pursue the accused persons. The accused persons again fired back and this time the fire hit Chandrapal and thereafter, Harpal who fell down. However, the pursuit continued and people of village Hajipur also joined the pursuit. Subsequently, on being informed, the police of P.S. Saidanagli also arrived and challenged the accused persons and ultimately, with the coordinated efforts of the police and the public, the accused persons were overpowered at about 7 p.m. near village Hajipura. The accused persons upon being caught by the police disclosed their identity as being Munne, Suraj and Dharampal. The search of their persons yielded country made pistols, cartridges and a dagger. At police station Hasanpur, case was registered at case crime No. 857 of 2003 under Section 354 307 and 302 I.P.C. against Suraj, Dharampal and Munne. Another case under Section 307 IPC was also registered at case crime No. 859 of 2003 against the accused Suraj. A third case at case crime No. 860 of 2003 also came to be registered under Section 25 Arms Act against the accused Dharampal. In so far as accused Munne was concerned, a case at case crime No. 861 of 2003 under Section 4 25 Arms Act was registered at P.S. Rajabpur.

5. It would further appear from the record that upon oral information received at 6.30 p.m. by the police of P.S. Hasanpur, from one Ghanshyam to the effect that the village people had surrounded the accused persons in the field of village Kadaua and the accused persons were firing to scare away the village people and upon receipt of this information, the police of P.S. Hasanpur rushed to the indicated place and in the jungle of village Kadaua, they found the three dead bodies and upon being guided by the village people, the police force proceeded towards north of village Hajipur. At a distance of about a furlong in the south of the village Hajipur, the police force of P.S. Hasanpur came across police force of P.S. Saidangali alongwith three accused persons who had been held tight by the public and also S.O. of P.S. Saidangali who was processing papers in the light of the petro-max and torch. It is alleged that the S.O. Hasanpur was shown the written report prepared by Ram Prasad and Amar Singh which written report was perused by Investigating officer who handed it back to Ram Prasad with the direction to go back to police station alongwith Vishnu Dutt for lodging the report. Thereafter, they came back to complete the formalities on the dead body of Nanak and others. After a short interval, S.O. Saidangali came there and thereafter, they all went back to P.S. Hasanpur where the accused persons were put in prison and recovered articles were deposited in the Malkhana.

6. According to narration contained in the recovery memo pertaining to case crime No. 858 of 2003 and 861 of 2003, the Police party consisting of S.O. B.K. Arya, B.K. Yadav, R.K. Singh, Munnaramdas, Guru Dayal Singh along with the driver of police jeep namely Lallu Singh were on their usual patrol and at about 4 p.m. they were all present near the Ujhari Petrol pump. On receiving information about the incident on R.T. Set, the police party proceeded towards Tarara Jungle. Leaving the Jeep and Driver near the Jheel, the police party proceeded on foot towards the jungle of Hajipura Tarar. According to further narration in the recovery memo, the police party noticed three persons hiding in the maize field and they were challenged. The accused persons initially fired at the police party and the police also retaliated by firing. Subsequently, they were overpowered at about 7 p.m. with the aid of certain persons namely, Ram Prasad of Kandaha and Bhojraj, Netram, Ramkesh of village Hajipura. According to further narration in the memo, Suraj was holding 315 bore country made pistol in his right hand and further search of his person yielded two live cartridges from the pocket of his trouser and one empty cartridge stuck in the barrel of the pistol while accused Dharampal was found holding 12 bore country made pistol in his right hand and the search of his person yielded three live cartridges from the pocket of his trouser. The search of Munne yielded a dagger with a long blade of prohibited dimension.

7. The case was registered at case crime No. 857 of 2003 was commenced by P.W. 12 and on his instructions, S.I. K.P. Singh Tomar prepared inquest report and processed the papers for sending the dead bodies for post mortem examination.

8. Autopsy on the body of deceased Nanak was conducted on 5.5.2003 at 4 p.m. and following anti mortem injuries were recorded by the Doctor.

1. Multiple lacerated wounds 58 in an area of 25 cm x 20 muscle to bone deep on chest (on left side and anterior aspect of left arm. Average size in 4m c 4 cm.

2. Lacerated wound 11 cm x 9 cm x muscle to bone deep over dorsum (right) hand (palm). Edges are irregular burning, blackening tattooing present. Multiple fracture of 2nd, 3rd, 4th and 5th metacarpel bone seen 4 cm x 3 cm.

3. Lacerated wound 4 cm x 3 cm x muscle to bone deep over left upper lip and left side nose fracture burning, blackening and tattooing present.(more on medial aspect).

9. On the person of deceased Chandra Pal following ante-mortem injuries were found by the Doctor.

(1) wound of entry lacerated wound 1 cm x 1 cm x through and through over left side mid of back. 30.cm below from top of left shoulder joint and 13 cm away from mid of back (vertebral column). Edges are inverted, torn jagged and irregular. Burning, blackening, and tattooing seen. Wound is pointing upwards.

(2) Wound of exit- Lacerated wound 3 cm x 3 cm x continued from injury No. 1 (injury No. 1 through and through) 5 cm medial to top of right shoulder joint anterior aspect. Edges are torn jagged irregular and everted.

10. Semi digested food was found in the intestine and the doctor opined death due to haemorrhage.

11. On the person of deceased Harpal following ante mortem injuries were recorded by the doctor.

1. Lacerated wound 4 cm x 3 cm x bone deep over left side forehead 5 cm above from lateral end of left eye brow. Edges are inverted irregular and lacerated. Blackening and tattooing present. This would is surrounded by 17, 0.5 cm x 0.5 cm x muscle to bone deep multiple lacerated wounds of irregular edges left frontal bone fractured (multiple) 11 pallets collected from wound.

12. The prosecution examined P.W. 1 Ram Prasad, P.W.2, Hariom, P.W.3 Sumrati, P.W. 4, Amar Singh, P.W. 5 Ghanshyam, P.W. 6 Dr. Ashok Kumar, P.W. 7 P.K. Arya, P.W. 8 Vishnudutta P.W. 9 Veerpal Singh P.W. 10 Constable clerk Mange Ram P.W. 11 S.I. K.P. Singh Tomar, P.W. 12, S .O. Surendra Pal Singh and P.W. 13 H.S.R. Vinay Kumar in support of the prosecution case.

13. The defence case was one of denial necessitating trial. It has been recorded by the Sessions Judge in his judgement that initially, the defence proposed to examine witnesses in support of its case but subsequently, no evidence was adduced to prop up its case.

14. The argument advanced across the bar by the learned Counsel for the appellants substantially was that the accused persons have been falsely implicated in the case ; that co accused Munne had not wielded dagger or inflicted any injury by means of the said dagger in the commission of the crime; that recovery shown to have yielded from the persons of accused persons was falsely shown to have been made from the accused persons; that all the three deceased persons were men of dubious antecedents and characters and they had been murdered by some unknown persons; that there were serious discrepancies and glaring inconsistencies between the versions of the witnesses set up by the prosecution case; and that the weapons recovered were not sent for ballistic examination. He also argued that the trial court has wrongly appreciated the evidence. He also canvassed that noticing the contradictions and improvements in the ocular evidence their statements before the police and the trial court, the testimony of these witnesses do not inspire confidence to connect the appellants with the commission of the alleged offences and therefore, their testimony cannot be accepted. He also canvassed that the oral evidence of the witnesses was not corroborated by the medical evidence and therefore, the prosecution case is highly unreliable and doubtful about the time of the death of the deceased. Per contra learned Counsel for the State adopted the reasoning contained in the judgment of the court below and contended that the findings recorded were well-merited and were based on proper appreciation of the evidence and do not call for any interference. Both the learned Counsel invited our attention to the relevant parts of the judgment to substantiate their respective stand.

15. Having appraised and evaluated the evidence adduced on record, the learned Sessions Judge converged to the conclusion that the P.W. 1 to P.W. 3 brought home the prosecution case that the accused persons had caught hold of the prosecutrix and on their screams the witnesses were attracted and they raised hue and cry and witnessed the occurrence and that the accused persons Dharam Pal and Suraj opened fire from their respective weapons and the third accused Munna brandished dagger to scare away the witnesses and when the witnesses continued chasing the accused persons the two accused persons fired upon them while fleeing which hit initially Nanak and thereafter Chandrapal and lastly Harpal. The learned sessions further held that the statements of P.W. 1, P.W. 4 and P.W. 7 brought home the fact that when the accused persons were fleeing towards Haijipur Tara jungle they fired at the police of Saidangali police station and the chasing public whereupon police used force to overpower the accused persons from whose possession the recovery was made of the articles stated above.

16. The learned Counsel appearing for the appellants reiterated the stand taken before the learned Sessions attended with the challenge to capital punishment awarded to the appellants stating that in the facts and circumstances, the case is not made out for award of the capital punishment and the learned Sessions Judge strained reasoning too afar to award capital punishment. He also questioned the finding of holding the appellants guilty under Section 302 34 IPC stating that ingredients of Section 34 IPC are not satisfied as the killing had occurred without pre-meditation and there was no prior meeting of mind of killing any of the deceased and that the accused persons fired at the deceased while fleeing which clearly goes to show that they wanted to escape fearing unleashing of fury by the mob. It is further argued that the accused persons had not collected at the place of occurrence with the common intention of committing the crime. The learned Counsel also argued that Munne had not inflicted any of the injuries to any of the deceased in the course of commission of the crime as there is no knife injury on the person of any of the deceased and still he has been clubbed with the other accused persons and sentenced to undergo life imprisonment. In vindication of their stand, the learned Counsel appearing for the appellants cited bunch of decisions and the decisions cited across the bar are Parichhat and Ors. v. State of M.P. , Gajjan Singh v. State of Punjab , Malkhan Singh v. state of U.P. : 1975CriLJ32 , Hardeep Singh v. state of Haryana 2008 (4) SCC 501, Rana Partap v. state of Haryana : 1983CriLJ1272 , Amrik Singh and Ors. v. state of Punjab 1972 Cri. L.J. 465, Jai Narain Mishra and Ors. v. State of Bihar , Yadu Yadav and Ors. v. State of Bihar , Hari Krishna Singh and Ors. v. State of Bihar ( : 1988CriLJ925 Pareshuram Singh v. state of Bihar : (2002)8SCC16 , Mohan Lal v. State , Dharam Pal v. state of Haryana , Ram Nath Madhoprasad v. State of M.P. : AIR1953SC420 , Sukhbir Singh v. Kirtan Singh and Ors. 2005 SCC 1624, Raju Ram v. state of Bihar 2005 SCC (Cri) 1627, Vaijayanti v. State of Maharashtra (2006) 1 SCC 790, Hardev Singh v. state of Punjab , and Banwari v. State of U.P. : AIR1962SC1198 . Per contra learned A.G.A relied upon decisions in Suresh and Anr. v. State of U.P. 2001 SCC 601 and Sucha Singh v. State of Punjab 2001 SCC 717.

17. In the above perspective, we would like to advert and delve into the evidence adduced by the prosecution in order to appreciate the same in the teeth of the arguments advanced across the bar by the learned Counsel for the parties.

P.W. 1 Ram Prasad is the informant in S.T. No. 485 of 2003. The witness has reiterated the prosecution version as stated in the F.I.R. elucidating further in his deposition that at the time of occurrence he was present in his field and was clearing the field of the weeds. According to the witness further, he had seen three persons sitting on the way and the aforesaid persons dragged the girls to sugar cane field and upon their screams the village people who were working in their respective fields nearby were attracted out of which Harpal, Chandrapal, Shanker etc. went inside the field to rescue the girls upon which all the three persons, started fleeing. The two accused persons fired at the deceased which hit Nanak who fell down. They were chased upon which the accused persons two of whom were equipped with country made pistol and one was armed with dagger. The accused persons again fired at the chasing party which hit Chandra Pal and Harpal who also slumped down. The other village persons continued chasing the accused persons. The village people were joined by people of Hajipur village also in chasing the miscreants and subsequently, upon arrival of police, the accused persons were overpowered and apprehended with the aid of the village people at about 7 p.m. He also supported the prosecution case about the recovery of weapons and cartridges and dagger and the also about preparation of recovery memo.

P.W. 2 is Hari Om Singh. He is also a resident of village Kandua P.S. Hasanpur. On the day of occurrence, he deposed that after working in his field, he was on way back to the village and at about the same time, he heard screams emanating from the field of Nathu upon which he alongwith other rushed back to the field of Nathu and he entered into the field alongwith other persons where he saw the accused persons squeezing the breasts of the girls and the girls were screaming. The accused persons were challenged. The witness stated that the accused persons opened the first fire from the field of Nathu which hit Nanak. He also deposed that Nanak sustained fire injury on his face and that the persons continued chasing the accused persons. Second time, the witness deposed, the accused who was long statured, opened fire from the field which hit Chandra Pal who fell down. The accused persons further fired while running away which hit Harpal who also fell down. The witness further deposed that Manna accused was brandishing dagger to scare away the chasing party. As regards the other details, he reiterated the version made by P.W.1 Ram Prasad.

P.W. 3 Sumarati deposed in her statement that on the day of occurrence, she had gone to the field alongwith one Kamlesh who had come to the village in relation, had gone to collect grass from the field and when they were cutting grass in the field of Sri Ram, the accused persons numbering three who were hiding in the sugar-cane field nearby, emerged from the field and caught hold of Kamlesh and herself and started behaving lecherously with a view to outrage their modesty. It is further deposed that all the three accused persons dragged her and Kamlesh inside the adjacent sugar-cane crop field and began squeezing her breasts upon which she screamed for help which attracted Nanak, Chandra Bhan and Harpal, Ram Prasad, Hariom and Ram Autrar etc. Seeing the village on-rushing, they left her and fired. She identified the accused in court. She deposed that Suraj and Dharampal were carrying pistols and Munne was armed with dagger. When Nanak sustained injuries she alongwith Kamlesh fled to their village. In cross examination, she deposed that the accused persons were holding girls by one hand and from the other hand they were firing from the country made pistols. She further deposed that one of the accused persons fired at the deceased Nanak from close range and before firing, they had let off her. Thereafter, she came back to her house. The witness attributed country made pistol in the hands of Suraj and Dharam Raj and Munne with dagger. Subsequently, heard that the culprits had been apprehended by the police. In her cross examination she stated that she did not know any of the accused persons from before. She described one of the accused persons as short statured while the other two accused persons were long statured. She also stated that she was unable to recollect as to which of the accused persons fired first. She also stated that she saw the accused persons second time in the police vehicle. She also stated that she had suffered no injury on her person. She denied that she was inflicted any knife injury or that any part of her cloth which she was wearing was torn in the scuffle. She also denied that Nanak had any criminal antecedents. She denied the suggestion that no firing had taken place in her presence there.

P.W. 4 Amar Singh is a witness who at the time of occurrence was present in the village. He was informed by the victim girls about what happened to them and also about the occurrence stating that the miscreants had dragged them to the sugar-cane field while they were cutting grass in the adjacent field and further informed that the people present at the scene were confronting and chasing the accused persons. He further deposed that he went to the field upon his motor cycle where he came across Kemlesh Kishor, Nand Ram and Charan Singh who had gone on tractor trolley of Naresh son of Nathu. He further deposed that Bhagwan Giri, Tej Ram, Jaipal, Ram Kishore, Harkesh, Prem Giri, Autar were also present who informed that the miscreants had fled towards north of the field and number of people were chasing them. He was also informed that Nanak, Chandrapal Harpal had been shot dead by the miscreants whose dead bodies were lying in the field and that the miscreants were armed with country made pistols and one of the miscreants was armed with dagger. He further deposed that he was informed by Hari Om about the precise details who had seen the entire occurrence. He also deposed that arrest was made in his presence and Fard and inquest was also held in his presence. He also deposed to preparation of Fard regarding recovery of empty cartridge and blood smeared and simple earth. The substance of his entire deposition was that the deceased persons had no criminal antecedents nor were they involved in any litigation, that he reached the place of occurrence after covering half Kilometer where he saw dead bodies of the deceased who were killed in the firing opened by the miscreants; that he was further informed that Chandrapal and Harpal had also fallen to the bullets of the miscreants that one of the dead body was lying supine and flat; that the dead body was brought from the field in the open area and that the person who brought the dead body from the field had no blood stains on his cloth, that the dead body of Chandrapal was brought from a distance of about 10-12 steps while the dead body of Harpal was brought from a distance of 60-70 steps; that at that time, the family members of the deceased were bewailing over the dead-bodies; that the miscreants were arrested at a distance of one km; that upon being surrounded by the police the miscreants had opened fire at the police. ; that in the firing exchanged between police and miscreants, no one sustained injuries; that after arrest of miscreants the police visited the place where the dead bodies were lying and collected blood smeared and simple earth. He denied that the deceased had criminal antecedents and that they were killed by unknown miscreants.

P.W. 5 Ghan Shyam is also a resident of village Kadua. At the time of occurrence he was present in the village and he heard that the village people were confronting certain miscreants who were firing upon the village people. On hearing the news he rushed to Police Station Hasanpur at about 6 p.m. and upon his information the police party rushed to the place of occurrence alongwith police force. The dead bodies of Chandrapal and Harpal were kept on the way which lay between the field of Jaipal and Chandrapal while the dead body of Nanak was kept on the way adjacent to the field of Nathu. The Station officer P.S. Hasanpur, it is stated, left behind one S.I. and two constables along-with the Jeep and proceeded further in search of the accused persons with the remaining force. On reaching there, it is further stated, he was told that when the victims were cutting grass in the sugar cane field of Nathu, the accused persons caught hold of them and on their screaming, the people including deceased were attracted upon which the accused persons fired at the deceased. He further stated that at about 8 p.m. the news reached him that the police have been apprehended the culprits with the aid of the village people. He further deposed that he saw the accused persons when they were being taken to police station Hasanpur. From his deposition, it clearly transpires that the witnesses had supported the prosecution case in all material particulars and there is no contradiction or inconsistency to the disadvantage of the prosecution case.

P.W. 6 is the medical officer who conducted autopsy on the dead bodies. The witness proved the medical report and attributed death due to haemorrhage. The doctor opined in his deposition that the deceased had died one day prior to the examination. He also opined that the fire made from the distance of one meter can cause blackening. The witness denied that Chandrapal deceased died at about 10 p.m attended with the opinion that the duration of death swings both ways spaced by two hours. The medical evidence corroborates the ocular testimonies.

P.W. 7 is P.K.Arya S.I. who received information about the occurrence on R.T. Set while he alongwith patrol party was near Ibari Petrol Pump at about 6 p.m and on receiving information he alongwith police party rushed to the place of occurrence and arrested the accused persons. According to this witness there was exchange of fire between the accused persons and the police party and thereafter the accused persons were arrested. He also deposed that recovery memo was prepared by S.I. R.P. Singh. In cross examination this witness stated that there is a distance of two and half km between the place of occurrence and the place where he received information. He further deposed that there was huge throng of people who were hotly pursuing the accused persons and there prevailed pandemonium at the place and the police force joined the crowd which was mostly armed with Lathies and none of them had any fire-arm. He, however, conceded that in the melee that prevailed at the scene he could not pinpoint the names of those who had joined the police in search of the accused persons as it had grown dark. He also stated that there was heavy exchange of firing but none was injured. He also stated that there was a distance of about 100-200 meters between the firing from two sides and further that the firing was taking place interspersed with certain intervals and it was not constant. He also stated that two empty cartridges were found enmeshed in the barrel of the pistol recovered form the accused. He also stated that the accused persons were taken into custody with the aid of public by the police and that the accused persons were holding their respective weapons in their hands at the time of their arrests and they had not thrown away the same. He also stated that the accused persons suffered minor injuries while resisting their arrest. He however could not tell which of the police personnel overpowered the accused persons. He also stated that requisite formalities were performed in the light of torch. He also stated that the public attempted to wrest control of the accused persons in the way while accused persons being escorted to police station..

P.W. 8 is Vishnudutta who came at the place of occurrence on being informed by Ghanshyam at the police station. This witness supported the prosecution case to the extent of coming to the place of occurrence then going back to the police station and after collecting requisite papers came to the place for investigation where dead bodies were lying supine.. He deposed in cross examination that he after receiving information on R.T. Set relayed the same to the higher ups in the police hierarchy.

P.W. 9 Virpal is the investigating officer. He galvanised into action for investigation after arrest of the accused persons. He stated that he prepared site plan, papers relating to arrest and submitted charge sheet and also obtained sanction for prosecution and also proved papers pertaining to investigation in the court.

P.W. 10 C.P. Mange Ram is a formal witness who had made entries in the G.D. relating to registration of the case.

P.W. 11 K.P. Singh is the station officer who deposed that he proceeded from the police station on information received from Ghansyam. This witness prepared the papers of inquest conducted on the dead bodies and processed other formalities. In cross examination he stated that on being informed by Ghan Shyam he alongwith other police force rushed to the place of occurrence. On reaching the scene of occurrence he found three dead bodies which were lying at different places. He also stated that he came to know of the murders of three persons on reaching the pace of occurrence.. He further deposed that he left the Jeep and some police personnel on the spot and proceeded towards the direction where the accused persons had escaped. He further stated that he found fire arm injuries on the bodies of the deceased and there was no stab wound on the person of any of the deceased. He prepared three separate inquest.

P.W. 12 Surendra Pal Singh is the investigating officer of case S.T. No. 485 of 2003 . This witness prepared site plan and also recovery memos of empty cartridges, blood smeared and simple earth etc. He also stated that he performed the requisite formalities in the light of the torch. He also stated that he sent the recovered weapons for examination and subsequently filed the charge sheet in the court.

P.W. 13 Arvind Kumar is also a police witness who on the basis of information of Ghanshyam prepared Ext ka 17 and had left for place of occurrence alongwith the investigating officer . This witness also relayed information to police station Saidangali and other higher authorities.

18. In view of what the witnesses has stated it is deducible that the witnesses has propped up the prosecution case. We are in full agreement with the finding that the P.W. 1 to 3 have proved the prosecution case to the extent that after the accused persons had caught hold of the prosecutrix, who let out screams which attracted witnesses who were working in the nearby fields and saw the occurrence and raised the hue and cry and when the witnesses came nearer the accused persons namely Dharampal and Suraj fired form their pistols and Munne accused brandished dagger. The first fire hit Nanak and thereafter, Chandrapal and Harpal were also hit who fell down and died. All the witnesses deposed consistently that upon being challenged, the appellants freed the girls and they fired which initially hit Nanak thereafter, Hargyan and lastly Chandrapal deceased. There is no denying of the fact that the witnesses were subjected to gruelling and searching cross examination but they were unyielding. We are further in full agreement with the finding that P.W. 1 P.W. 2 and P.W. 4 proved the prosecution case to the extent that when the accused persons were fleeing towards Hajipur Tarara they fired at the police and the public who were chasing them upon which the police force used force and overpowered them and recovered illicit weapons from their possessions including cartridge and dagger. P.W. 6 and 10 proved the inquest report and other police papers which were prepared on the spot. The learned Counsel for the appellant pointed out certain discrepancies but in his judgement the learned Sessions Judge has explained the minor discrepancies by referring to the site plan.

19. The discrepancy pointed out by the learned Counsel is minor and insignificant. Having considered the matter in its entirety we are of the view that the learned Sessions Judge has rightly appreciated and accepted the evidence and we find no cogent and sound reason to differ from the well reasoned judgment of the trial court. The evidence of all the eye witnesses is quite natural convincing and trustworthy. There is no material on record from which an inference can be drawn that the material witnesses have implicated the appellants in a false case at the behest of the police. The learned Counsel has not drawn attention to any material on record to show that the witnesses deposing against them were hostile on account of any pre-existing enmity.

20. The learned Counsel for the appellants made it a point of vehemence that the vital discrepancies are writ large in the evidence of the witnesses and their testimonies bristle with contradictions which, to sum up, belies their presence at the place of occurrence. In connection with the above, he argued that Ram Prasad P.W. 1 deposed that the accused were chased by a mob of 30 to 35 people upto a distance of about one km while on the other hand, P.W. 2 Hari Om Singh stated on oath in his deposition that approximately 15 to 20 persons were in hot pursuit of the accused and they had followed the accused persons for about a distance of 1/2 km. In our opinion, the variances in the deposition are minor in nature and do not go to the roots as to discredit the entire prosecution case.

21. In Krishna Mochi and Ors v. state of Bihar : 2002CriLJ2645 , the Apex Court shed light on the aspects that the normal discrepancies in evidence are those which are due to normal errors of observation, normal errors of memory due to lapse of time, due to mental disposition such as shock and horror at the time of occurrence and those are always there, however, honest and truthful a witness may be. Material discrepancies are those which are not normal and not expected of a normal person. The courts have to label the category to which a discrepancy may be categorised. The Apex Court observed that while normal discrepancies do not corrode the credibility of a case, the material discrepancies do so. Regard being had to the submissions vis-a-vis the depositions , we are of the view that the discrepancies pointed out by the learned Counsel for the appellants by all reckoning, are normal which do not corrode the veracity of the entire prosecution case.

22. It is settled position of law that every discrepancy found in the ocular account of the witnesses cannot affect the credibility of the evidence of the witnesses. There are bound to some discrepancies between the narration of different witnesses when they speak and unless the contradictions are of material dimension, the same should not be used to jettison the otherwise sturdy evidence of the ocular witnesses in entirety. The corroboration of evidence with mathematical niceties cannot be expected in Criminal cases, minor embellishment there may be, but variance by reason thereof should not render the evidence of an ocular witnesses unacceptable. Traditionally, the discrepancies ought not to obliterate the otherwise acceptable evidence.

23. In Rammi v. State of U.P. : 1999CriLJ4561 , the Apex Court in paras 23 and 24 expatiated that when an ocular witness is examined at length, it is quite possible for him to make some discrepancies. No true witness can possibly escape from making some discrepant details. Perhaps, an untrue witness who is well tutored can successfully make his testimony totally non-discrepant. But too serious a view to be adopted on mere variations falling in the narration of an incident either as between the evidence of two witnesses or as between two statements of the same witness is an unrealistic approach for judicial scrutiny.

24. Reverting to the facts of the present case, in our opinion, there is no significant contradictions between the testimonies of P.W.1, P.W. 2 and P.W.3 as to push us to hold that they were not present at the time of occurrence. They were extensively cross-examined but nothing could be elicited to discredit their testimony. It is also relevant to point out that there is no suggestion as to why they were falsely implicating the appellants.

25. The next submission advanced across the bar by the learned Counsel for the appellants is that the accused persons were not put up for identification. It admits of no doubt that the accused persons were not known to the witnesses. To cap it all, it has not been disputed by any of the witnesses that the accused persons were chased and apprehended by the villagers and the police personnel and all of them had seen and recognised the accused persons from close quarters after they were over-powered and arrested. It is also on record in no Delphic terms that the accused persons were identified in court by the witnesses. The identification in court, it is settled law, is substantive evidence. By this reckoning, there could be no reasonable justification or occasion for putting the accused persons for identification. In connection with the above point in discussion, we feel called to refer to the decision of the Apex Court in Simon v. State of Karnataka : (2004)2SCC694 . The relevant observation is excerpted below.

The legal position on the aspect of identification is well settled. Under Section 9 of the Indian Evidence Act, 1872, the identity of the accused persons is a relevant fact. We have no difficulty in accepting the contention that evidence of mere identification of an accused person at the trial for the first time is from its very nature inherently of a weak character. The purpose of a prior test identification is to test and strengthen the trustworthiness of that evidence. Courts generally look for corroboration of the sole testimony of the witnesses in court so as to fix the identity of the accused who are strangers to them in the form of earlier identification proceedings. This rule of prudence, however, is subject to exceptions, when, for example, the court is impressed by a particular witness on whose testimony it can safely rely, without such or other corroboration. It has also to be borne in mind that the aspect of identification parade belongs to the stage of investigation, and there is no provision in the Code of Criminal Procedure which obliges the investigating agency to hold, or confers a right upon the accused to claim, a test identification parade. Mere failure to hold a test identification parade would not make inadmissible the evidence of identification in court. What weight is to be attached to such identification is a matter for the courts of fact to examine. In appropriate cases, it may accept the evidence of identification even without insisting on corroboration.

Regard being had to the above case law, the identification of the accused by the witnesses in any test identification parade in this case was meaningless. The facts and circumstances of the case clearly establish that the accused were constantly chased by the villagers and the police before they were arrested and after their arrest they were seen by the witnesses. Even P.W.3 Somwati deposes that after the arrest of the accused, she had seen the accused. Therefore their was no doubt about the identity of the accused. Moreover , the witnesses have identified the accused and specified their actual roles in court and their absolutely no motive for the witnesses to falsely rope the accused in such a crime where three co-villagers are done to death.

The next submissions advanced across the bar by the learned Counsel for the appellant is about applicability of Section 34 I.P.C. The precise argument is that according to the prosecution case, two accused persons opened fire at the deceased which resulted in the death of three persons. So far as appellant Munne is concerned, the admitted position remains that he was armed with knife and he did not inflict any injury to any of the deceased. The learned Counsel reasoned that according to own showing of the prosecution case, the intention of the accused persons was of only molestation of girls and not to cause death. In this connection, he adverted to the evidence again stating that after the girls had yelled out for help, the village people were attracted and sensing the on-rushing danger, the deceased fired to scare away and tried to flee from the onslaught of the people chasing them but when the chase persisted, the accused fired back to deter and keep the chasing people at bay and therefore, the intention was to deter and keep at bay the chasing people and they never intended to kill anyone of the deceased. Lastly, it is argued that the conviction of Munne under Section 302 34 IPC is unwarranted and not called for in the facts and circumstances of the case inasmuch as according to the learned Counsel, Munne did not share the intention to commit murder and he was only running impelled by the instinct of self preservation. The learned Counsel also argued that the common intention to commit murder must be anterior in point of time to the commission of crime which means a pre-arranged plan. On the other hand, learned A.G.A argued that the decisions are legion that pre-arranged plan may develop on the spot during the course of commission of the crime but the crucial circumstance is that the said plan must precede the act constituting the offence. The learned Counsel also argued that all the three accused persons were running for their individual safety, exposed as they were to a common danger. They were impelled by the instinct of self-preservation which monitors human behaviour when faced with mortal peril. There was no prior concert. There was no prior meeting of minds and in a case like this, each would be individually liable for whatever injury, he caused but none would be vicariously liable for what the other did.

As stated supra, the counsel for the appellant Munne, Sri Brahm Singh placed reliance on various decisions of the Apex court to convass that he is not responsible to cause death of the deceased. It is further submitted that he was alleged to be armed with a knife and did not cause any injury to any of the deceased. The post mortem reports of the deceased does not indicate any knife injury. The first decision relied upon by the counsel is of Gajjan Singh v. State of Punjab reported in wherein the Apex Court had observed that But the mere fact that the members of the mob came together to be more specific in view of the judgement of the Trial judge, Birkha Singh and Gajjan Singh came together armed with rifles, is not sufficient to indicate that they had come having shared a common intention to commit the murder. Only one shot was fired on the head of Ajit Singh by Birkha Singh. No shot was fired by Gajjan Singh on him. He had no grudge against him. Gajjan did fire a rifle on Dalvinder Singh with the intention to kill him but fortunately he escaped death. Admittedly, Ajit Singh was not residing in the Haveli wherein the occurrence took place . It was perchance that he happened to be there. It cannot therefore, be said by any stretch of imagination that the appellant and his companion Birkha had any pre arranged plan to kill Ajit Singh. On the evidence and the facts found the inference of Gajjan Singh sharing the common intention with Birkha Singh for the murder of Ajit Singh is not possible to be drawn. It may be that he had such common intention. But it is difficult to fill the gap between "may" and "must " and to say that Gajjan Singh must have shared the common intention for causing the death of Ajit Singh.

Another decision relied by the learned Counsel for the appellants is Sukhbir Singh v. Kirtan Singh and Ors. (2005) SCC 1624 , wherein it was observed at page 569 para 7 as under:

7. In State of U.P. v. Iftikhar Khan this Court considered in detail the nature of vicarious liability under Section 34 IPC. It was held that to convict a person for offence applying Section 34 IPC, it is necessary to establish that the criminal act was done in concert, pursuant to a prearranged plan and it is also to be borne in mind that it is difficult, if not impossible, to procure direct evidence to prove the intention of a person. Therefore, courts, in most cases, have to infer the intention from the act or the actual conduct of a particular person or from the other relevant circumstances of the case. Such inference of common intention within the meaning of Section 34 IPC should never be reached unless the necessary inference is deducible from the circumstances of the case.

The learned Counsel again relied upon the decision in Birpal Singh and Ors. v. state of U.P. 1977 SCC 554, in which the Apex Court had acquitted Mathura Singh because no injury of spear, carried by him, was found and the Apex Court had observed that "Appellant Mathura Singh, according to the prosecution story was carrying a spear. No spear injury was found on any person on the prosecution side The case against this appellant also was sufficiently doubtful and the High Courts interference with the order of acquittal recorded in his favour by the trial court cannot be justified.

26. The counsel for the appellants also placed reliance on the decision of the Apex Court in the case of Vaijayanti v. State of Maharashtra reported in : (2005) 13 SCC 134 [LQ/SC/2005/948] , wherein it was observed that:

It may be true, as contended by learned Counsel for the State, that the question as to whether the appellant had shared a common intention with the other persons must be deciphered from the fact that the other accused persons were armed with gupti and dagger and the deceased was chased, but while arriving at such a conclusion, we have no other option but to take into consideration the actual role played by the appellant and also the facts and circumstances in which dispute arose viz. Gullu s/o PW 1 has allegedly outraged the modesty of one Mangla who happened to be the daughter of her sister. Presumably she was enraged. But it is difficult for us to perceive that only therefore she would join the other accused persons in forming common intention to kill the deceased Asgar Ali, particularly, when she had knowledge that it was not Asgar Ali but Gullu who had outraged the modesty of her sisters daughter. No evidence has been brought on record by the prosecution to show that the accused persons met prior to the date of occurrence for the purpose of commission of the said offence. It is true that common intention can be formed even on the spot but for the said purpose, as indicated herein-before, it is essential to consider the role played by the accused.

27. Although arguments articulated at length are appealing but we do not express ourselves in concurrence with the submissions advanced across the bar by the learned Counsel for the appellants and conviction of appellant Munne under Section 302 34 IPC was uncalled for and unwarranted in the facts and circumstances of the case inasmuch as in this case, the principle very much holds water that an accused sharing the common intention is as much guilty as the accused who inflicts the blow or actually participates in the crime.

28. Section 34 has been enacted on the principle of joint liability in the doing of a criminal act. The section is only a rule of evidence and does not create a substantive offence. The distinctive feature of the section is the element of participation in action. The liability of one person for an offence committed by another in the course of criminal act perpetrated by several persons arises under Section 34 if such criminal act is done in furtherance of a common intention of the persons who join in committing the crime. Direct proof of common intention is seldom available and, therefore, such intention can only be inferred from the circumstances appearing from the proved facts of the case and the proved circumstances. In order to bring home the charge of common intention, the prosecution has to establish by evidence, whether direct or circumstantial, that there was plan or meeting of minds of all the accused persons to commit the offence for which they are charged with the aid of Section 34, be it prearranged or on the spur of the moment; but it must necessarily be before the commission of the crime. The true contents of the section are that if two or more persons intentionally do an act jointly, the position in law is just the same as if each of them has done it individually by himself. The existence of a common intention amongst the participants in a crime is the essential element for application of this section. It is not necessary that the acts of the several persons charged with commission of an offence jointly must be the same or identically similar. The acts may be different in character, but must have been actuated by one and the same common intention in order to attract the provision.

29. The section does not say "the common intentions of all", nor does it say "an intention common to all". Under the provisions of Section 34 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. As a result of the application of principles enunciated in Section 34, when an accused is convicted under Section 302 read with Section 34, in law it means that the accused is liable for the act which caused death of the deceased in the same manner as if it was done by him alone. The provision is intended to meet a case in which it may be difficult to distinguish between acts of individual members of a party who act in furtherance of the common intention of all or to prove exactly what part was taken by each of them.

30. In connection with the point at issue, we would like to refer to the decision of the Apex Court in Anil Sharma v. State of Jharkhand : 2004CriLJ2527 . The relevant observation is contained in para 17 at page 689 which is excerpted below.

17. Section 34 has been enacted on the principle of joint liability in the doing of a criminal act. The section is only a rule of evidence and does not create a substantive offence. The distinctive feature of the section is the element of participation in action. The liability of one person for an offence committed by another in the course of criminal act perpetrated by several persons arises under Section 34 if such criminal act is done in furtherance of a common intention of the persons who join in committing the crime. Direct proof of common intention is seldom available and, therefore, such intention can only be inferred from the circumstances appearing from the proved facts of the case and the proved circumstances. In order to bring home the charge of common intention, the prosecution has to establish by evidence, whether direct or circumstantial, that there was plan or meeting of minds of all the accused persons to commit the offence for which they are charged with the aid of Section 34, be it prearranged or on the spur of the moment; but it must necessarily be before the commission of the crime. The true contents of the section are that if two or more persons intentionally do an act jointly, the position in law is just the same as if each of them has done it individually by himself. As observed in Ashok Kumar v. State of Punjab the existence of a common intention amongst the participants in a crime is the essential element for application of this section. It is not necessary that the acts of the several persons charged with commission of an offence jointly must be the same or identically similar. The acts may be different in character, but must have been actuated by one and the same common intention in order to attract the provision.

In Anil Sharmas case (supra), the Apex Court quoted Section 34 as it original stood n the following terms:

34. When a criminal act is done by several persons, each of such persons is liable for that act in the same manner as if the act was done by him alone.

31. The Apex Court further observed that in 1870, it was amended by the insertion of the words "in furtherance of the common intention of all" after the word "persons" and before the word "each", so as to make the object of Section 34 clear.

32. It was further observed that the section does not say "the common intentions of all", nor does it say "an intention common to all". Under the provisions of Section 34 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. As a result of the application of principles enunciated in Section 34, when an accused is convicted under Section 302 read with Section 34, in law it means that the accused is liable for the act which caused death of the deceased in the same manner as if it was done by him alone. The provision is intended to meet a case in which it may be difficult to distinguish between acts of individual members of a party who act in furtherance of the common intention of all or to prove exactly what part was taken by each of them. As was observed in Chinta Pulla Reddy v. State of A.P. Section 34 is applicable even if no injury has been caused by the particular accused himself. For applying Section 34 it is not necessary to show some overt act on the part of the accused.

33. In the case of Chinta Pulla Reddy v. State of A.P. reported in 1993 SCC 875, the Apex Court laid down that Section 34 of the IPC is applicable even if no injury has been caused by the particular accused himself. For applying Section 34 it is not necessary to show some overt act on the part of the accused

34. In Rotash v. State of Rajasthan (2006) 12 SCC 64 [LQ/SC/2006/1232] , at page 71, the Supreme Court referring to Suresh v. State of U.P. observed in para 23 and 38 as under:

23. Thus to attract Section 34 IPC two postulates are indispensable: (1) The criminal act (consisting of a series of acts) should have been done, not by one person, but more than one person. (2) Doing of every such individual act cumulatively resulting in the commission of criminal offence should have been in furtherance of the common intention of all such persons.

1. Section 34 of the Indian Penal Code recognises the principle of vicarious liability in criminal jurisprudence. It makes a person liable for action of an offence not committed by him but by another person with whom he shared the common intention. It is a rule of evidence and does not create a substantive offence. The section gives statutory recognition to the common-sense principle that if more than two persons intentionally do a thing jointly, it is just the same as if each of them had done it individually. There is no gainsaying that a common intention presupposes prior concert, which requires a prearranged plan of the accused participating in an offence. Such pre-concert or pre-planning may develop on the spot or during the course of commission of the offence but the crucial test is that such plan must precede the act constituting an offence. Common intention can be formed previously or in the course of occurrence and on the spur of the moment. The existence of a common intention is a question of fact in each case to be proved mainly as a matter of inference from the circumstances of the case.

35. The Apex Court again referred to the decision in Lallan Rai v. State of Bihar (reported in 2003 SCC 301) and observed in para 20 and 22 as under:

20. A plain look at the statute reveals that the essence of Section 34 is simultaneous consensus of the mind of persons participating in the criminal action to bring about a particular result. It is trite to record that such consensus can be developed at the spot. The observations above obtain support from the decision of this Court in Ramaswami Ayyangar v. State of T.N.

In para 21, the Apex Court also referred to the decision in Barendra Kumar Ghosh v. King Emperor and observed that in a similar vein the Privy Council stated the true purport of Section 34 as below:

The words of Section 34 are not to be eviscerated by reading them in this exceedingly limited sense. By Section 33 a criminal act in Section 34 includes a series of acts and, further, "act" includes omission to act, for example, an omission to interfere in order to prevent a murder being done before ones very eyes. By Section 37, when any offence is committed by means of several acts whoever intentionally cooperates 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.

36. In para 22 of the aforesaid decision the Apex Court converged to the conclusion observed that 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." Applying the legal principles as noticed, we unhesitatingly are of the opinion that common intention on the part of the appellant in committing the crime with Pitram stands established.

37. In the case of Suresh v. State of U. P : 2001CriLJ1462 . Paragraphs 23 and 38 being relevant are quoted below.

23. Thus to attract Section 34, IPC two postulates are indispensable. (1) The criminal act (consisting of a series of acts) should have been done, not by one person, but more than one person. (2) Doing of every such individual act cumulatively resulting in the commission of criminal offence should have been in furtherance of the common intention of all such persons.

37. Section 34 of the Indian Penal Code recognises the principle of vicarious liability in the criminal jurisprudence. It makes a person liable for action of an offence not committed by him but by another person with whom he shared the common intention. It is a rule of evidence and does not create a substantive offence. The section gives statutory recognition to the common-sense principle that if more than two persons intentionally do a thing jointly, it is just the same as if each of them had done it individually. There is no gainsaying that a common intention pre-supposes prior concert, which requires a pre-arranged plan of the accused participating in an offence. Such a pre-concert or pre-planning may develop on the spot or during the course of commission of the offence but the crucial test is that such plan must precede the act constituting an offence. Common intention can be formed previously or in the course of occurrence and on a spur of moment. The existence of a common intention is a question of fact in each case to be proved mainly as a matter of inference from the circumstances of the case.

38. In the light of the submissions as enumerated above, we feel called to revert in order to evaluate the evidence with a view to appreciate the submissions. The case of the prosecution is that while P.W. 2 Sumarati and one of her guest were scything grass in the field, the accused persons dragged the girls with a view to molesting them. When the witnesses responding to the screams of the girls, were attracted and confronted the accused persons, they fired at the village people. The first shot, it brooks no dispute, hit Nanak deceased and he slumped down in the field of Nathu. While being chased, the accused persons again fired and this time the fire hit Chandrapal deceased. The third fire made by the accused persons hit Harpal who also fell down and succumbed to injuries. According to the deposition of P.W. 2 Sumrati, one of the victim girls, when the village people confronted the accused persons, one of the appellants held her by one hand and fired at Nanak from the other in which he was holding the pistol. The second girl was held captive by another accused person who was also holding pistol in one of his hands. According to the deposition of P.W.1 Ram Prasad, as soon as Nanak entered the field to rescue the girl, the accused fired at him which hit him on his face and he fell down. According to the P.W. 2 Hari Om, on hearing the screams when the village people entered the field and challenged the accused persons, one of the accused persons fired at the people which hit Nanak while the other accused persons were aiming pistol and brandishing knife. It would, thus, be gleaned from the above depositions that the accused persons were holding the girls and were primed to do battle with the village people and therefore, it can be said that they developed common intention at the spur of the moment during the commission of the crime and in furtherance of the common intention, they opened fire at the deceased. The learned Counsel drew attention to the contents of the F.I.R stating that in the F.I.R clear allegation is that the accused persons fired at the deceased while being chased. The contents of the F.I.R to the above extent receive reinforcement from the statements of P.W. 1, and P.W. 2. No doubt, in their respective statements, the P.W. 1 and P.W. 2 have deposed that the accused persons fired at while being chased but the statements of P.W. 1 and P.W. 2 to the above extent is at variance with the statement of the P.W. 3 prosecutrix Sumarati. She has clearly deposed that the accused persons holding pistols in their hands, held her captive with one hand and fired at the deceased Nanak. The evidence of the P.W. 3 appears to be probable and trustworthy as she herself was victim of attempt to molestation.

39. The contention of Sri Brahma Singh, Advocate on the basis of allegations of F.I.R and statements of P.W. 1 and P.W. 2 that the act of Munne cannot be said to be in furtherance of common intention because he did not assault any one while running away form the place of occurrence has no substance. The dominant feature of attracting Section 34 IPC is the element of participation in absence resulting in the ultimate "criminal act". Under Section 32 acts include illegal omissions. Section 33 defines the "act" to mean as well a series of acts as a single act and the word "omission" denotes a series of omissions as a single omission. The act referred to in the latter part of Section 34 means the ultimate criminal act with which the accused charged of showing the common intention. In the case of Suresh and Anr. v. State of U.P. reported in 2001 SCC 601, the Apex Court observed that "The accused is, therefore, made responsible for the ultimate criminal act done by several persons in furtherance of the common intention of all. The section does not envisage the separate act by all the accused persons for becoming responsible for the ultimate criminal act. If such an interpretation is accepted, the purpose of Section 34 shall be rendered infructuous.

40. From the evidence on record, it is abundantly clear that Munne was present in the field of Nathu alongwith other two accused and after molestation all of them remained together while two persons were armed with fire arm and Munne was brandishing knife. Ultimately, three persons shot dead by fire arm and all the three remained together and apprehended. All the accused must have preconceived the result that ensued in furtherance of the common intention. Para 40 of the decision in Suresh (supra) being relevant is quoted below.

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 to not 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 pre-conceived result that ensued in furtherance of the common intention. A Division Bench of the Patna High Court in Shatrughan Patar v. Emperor AIR 1919 Pat 111 : 1919 Cri LJ 289 held that it is only when a Court with some certainty hold that a particular accused must have pre-conceived or pre-meditated the result which ensued or acted in concert with others in order to bring about that result, that Section 34 may be applied.

In view of the above, the learned Sessions Judge has rightly convicted appellant Munne under Section 302/34 IPC and we also lend affirmance to the conviction of Munne under Section 302/34 IPC.

The post mortem report also lends support to the ocular testimony inasmuch as from the post mortem report of Nanak, it would transpire that he sustained fire arm injuries with burning, blackening and tattooing. This injury is from a close range also. We are of the view that Sessions judge rightly placed reliance on the testimonies of the eye witnesses and recorded findings of conviction which we also affirm.

The next argument advanced across the bar is that in the facts and circumstances of the case, the sentence of death inflicted on the appellants errs on the side of severity as the case does not fall in the rarest of the rare cases and further that the guidelines laid down in stream of decisions commencing from Bachan Singh v. State of Punjab : 1980CriLJ636 and thereafter reiterated in subsequent decisions namely Machchi Singh v. State of Punjab : 1983CriLJ1457 and Devender Pal Singh v. State of N.C.T. Of Delhi : 2002CriLJ2034 . The guidelines laid down in Bachan Singhs case (Supra) may be culled out as under:

(i) The extreme penalty of death need not be inflicted except in gravest cases of extreme culpability.

(ii) Before opting for the death penalty, the circumstances of the offender also require to be taken into consideration alongwith the circumstances of the crime.

(iii) Life imprisonment is the rule and death sentence is an exception. In other words, death sentence must be imposed only when life imprisonment appears to be an altogether inadequate punishment having regard to the relevant circumstances of the crime, and provided, and only provided, the option to impose sentence of imprisonment for life cannot be conscientiously exercised having regard to the nature and circumstances of the crime and all the relevant circumstances.

(iv) A balance sheet of aggravating and mitigating circumstances has to be drawn up and in doing so, the mitigating circumstances have to be accorded full weightage and just balance has to be struck between the aggravating and the mitigating circumstances before the option is exercised.

41. In Machchi Singh and Ors. v. State of Punjab (1983), the Supreme Court expanded the "rarest of rare" formulation beyond the aggravating factors listed in Bachan Singh to cases where the "collective conscience" of a community may be shocked. But the Bench in this case underlined that full weightage must be accorded to the mitigating circumstances in a case and a just balance had to be struck between aggravating and mitigating circumstances.

42. In Devender Pal Singhs case (Supra), the Apex Court regard being had to both the cases supra, expanded the formulation for imposing extreme penalty. The guidelines may be abstracted below as under:

(1) When the murder is committed in an extremely brutal, grotesque, diabolical, revolting or dastardly manner so as to arouse intense and extreme indignation of the community.

(2) When the murder is committed for a motive which evinces total depravity and meanness e.g. Murder by hired assassin for money or reward, or cold blooded murder for gains of a person vis-a-vis whom the murderer is in a dominating position or in a position of trust; or murder is committed in the course for betrayal of the motherland.

(3) When murder of a member of a Scheduled Caste or minority community etc is committed not for personal reasons but in circumstances which arouse social wrath; or in cases of bride burning or dowry deaths or when murder is committed in order to re-marry for the sake of extracting dowry once again or to marry another woman on account of infatuation.

(4) When the crime is enormous in proportion. For instance when mutiple murders, say of all or almost all the members of a family or a large number of persons or a particular caste, community, or locality are committed.

(5) When the victim of murder is an innocent child or a helpless woman or old or infirm person or a person vis-a-vis whom the murderer is in a dominating position, or a public figure generally loved and respected by the community.

43. The Sessions Judge awarded death sentence on the ground that they were trying to molest the girls and in that process shot dead three innocent persons. In the perspective of the above decision and regard being had that the reasons assigned for inflicting the extreme penalty do not constitute special reasons, we are of the view that the case does not fall in the category of rarest of rare cases.

44. In view of the above, Criminal Appeal No. 8050 of 2006 Munne v. State of U.P. preferred by appellant Munne is dismissed and the conviction and sentences awarded by the trial court are confirmed.

45. Jail Appeal No. 173 of 2007 Dharam Pal v. State of U.P. and Criminal Capital Appeal No. 698 of 2007 preferred by Dharam Pal are dismissed with the modification that the conviction of the appellant under Section 302 IPC is affirmed and his sentence is modified to the extent that instead of death sentence he will undergo rigorous imprisonment for life. The rest of the conviction and sentences are affirmed.

46. Criminal Capital Appeal No. 8069 of 2006 preferred by appellant Suraj is dismissed with the modification that his conviction under Section 302 IPC is maintained but his sentence is modified to the extent that his death sentence is altered into rigorous imprisonment for life. Rest of the convictions and sentences are affirmed.

47. Reference No. 14 of 2006 is also dismissed in view of the above discussion.