Ram Sewak vs State Of Uttar Pradesh

Anil Kumar, J

Heard Sri Ramendra Kumar, learned counsel appearing on behalf of accused- appellant/ Ram Sewak in Criminal Appeal No.1282 of 2011, Ms. Sabana Rizvi, learned counsel appearing on behalf of accused appellant/Raj Kumar in Criminal Appeal No. 1269 of 2011 and accused-appellant/ Ram Kripal in Criminal Appeal No.1412 of 2011, Sri Badrul Hussan and Sri S.M. Kazim learned Additional Government Advocate appearing on behalf of the State.

Criminal Appeal No.1282 of 2011 has been preferred by accused- appellant/ Ram Sewak under Section 374 Cr.P.C. against the judgment and order dated 11/12.7.2011 passed by Additional Sessions Judge, Court No.13, Lucknow in S.T. No. 1122 of 2008 (State Vs. Ram Sewak and others ) vide Case Crime no.34 of 2008 under Sections 302 and 120-B I.P.C. Police Station Gudamba, District Lucknow, convicting and sentencing the appellant to undergo imprisonment for life with fine of Rs. 20000/-for the offence under Section 302 read with 34 I.P.C. and in default in payment of fine, further to undergo one year R.I. and further convicted in S.T. No.1123 of 2008 ( State Vs. Ram Sewak ) vide Case Crime No.60 of 2008 under Section 3/25 Arms Act , Police Station Gudamba , District Lucknow sentencing to undergo one year R.I. with fine of Rs. 2000/- for the offence under Section 3/25 Arms Act and in default of payment of fine, further to undergo two months R.I.

Criminal Appeal No.1269 of 2011 has been preferred by accused-appellant/ Raj Kumar under Section 374 Cr.P.C. against the judgment and order dated 11/12.7.2011 passed by Additional Sessions Judge, Court No.13 , Lucknow in S.T. No.1122 of 2008 ( State Vs. Ram Sewak and others) vide Case Crime No.34 of 2008 under Section 302 and 120-B I.P.C., Police Station Gudamba District Lucknow whereby convicted the appellant to undergo imprisonment for life with fine of Rs. 20000/- for the offence under Section 302 read with 34 I.P.C. and in default of payment of fine further undergo one year R.I.

Criminal Appeal No. 1412 of 2011 has been preferred by accused-appellant/ Ram Kripal under Section 374 Cr.P.C. against the judgment and order dated 11/12.7.2011 passed by Additional Sessions Judge, Court No.13 , Lucknow in S.T. No.1122 of 2008 ( State Vs. Ram Sewak and others) vide Case Crime No.34 of 2008 under Section 302 and 120-B I.P.C., Police Station Gudamba District Lucknow convicting the appellant under Section 302/34 I.P.C. with imprisonment for life and fine of Rs. 20000/- and if not deposited the fine one year extra imprisonment and under Section 120-B I.P.C. the accused appellant has been acquitted .

As the present criminal appeals, namely, Criminal Appeal No.1282 of 2011, 1269 of 2011 and 1412 of 2011 are arising out of the judgment and order dated 11/12.7.2011 passed by Additional Sessions Judge, Court No.13 , Lucknow , so the same are being heard and decided together.

In Brief, the case of the prosecution is that complainant/ Pyare Lal had lodged an F.I.R. on 31.1.2008 at about 12.15 p.m. at Police- Station Gudama District Lucknow that on the said date he alongwith his son Pappu allias Stendra was constructing the house in village Rasulpur. At about 10.30 a.m. when his son Pappu alias Satendra went to change his dress in the near old house which is nearby the house under constructions, his nephew of complainant namely , Ram Sewak, Ram Kumar, Ram Kripal had started quarrellings with his son due to family disputes and his Daughter-in-law/ Uma Devi came to him in order to inform the said matter and told about quarrel, immediately he his sons Suresh Kumar , Panne Lal and daughter-in-law reached on the spot and saw that Ram Sewak armed with country made pistol, Raj Kumar and Ram Kripal armed with lathi were abusing to his son Pappu allias Satendra, on exhortation by Raj Kumar and Ram Kripal, Ram Sewak fired with his country made pistol on Pappu allias Satendra Kumar on his chest, due to which he got injured and fell down. After committing the crime, accused appellant ran away from the spot. The informant took his injured son Pappu allias Satendra to the hospital where he was declared dead .

It is further mentioned in the F.I.R. by the Informant that his son was killed by the accused appellants, namely, Ram Sewak. Ram Kripal and Rajkumar on the instigation of Ganesh Prasad.

On the basis of F.I.R. a Case Crime No.34 of 2008 under Section 302,120-B I.P.C. instituted at the police Station Gudamba, District Lucknow. The investigation Officer has investigated the case and prepared site plan, sent the dead body for postmortem to the hospital on 31.8.2008 at 3.15 p.m., done at 4.00 p.m. on the same day.

During investigation, Investigating Officer on 16.2.2008 obtaining remand order from Chief Judical Magistrate, Lucknow to take Ram Sewak/ accused to police custody from jail for recovery of weapon used by the accused Ram Sewak in committing the crime . The Chief Judicial Magistrate, Lucknow allowed the said application and granted remand to take the accused- appellant/ Ram Sewak in police custody from 10.00 a.m. to 7.00 p.m. at 17.2.2008 for recovering the weapon with the condition that the counsel for the accused appellant/ Ram Sewak will accompany him.

Thereafter the Investigating Officer has taken the accused-appellant/ Ram Sewak to village Rasoolpupr kayasth , he informed the Investigation Officer , the place where the weapon of crime hidden by him. The Investigating Officer on his pointing out recovered the country made pistol hidden in a temple situated in courtyard of his house. A recovery memo was prepared on 17.2.2008 on which accused-appellant/ Ram Sewak had also put his signature.

After making other necessary investigation, Investigating Officer submitted charge-sheet before the concerned Magistrate, who took cognizance of the offence and on finding that the offence is triable and punishable by the court of sessions , passed and order of committal of the case before the court of sessions. Consequent thereupon, Session Trial no. 1122 of 2008 ( State Vs. Ram Sewak and others) arising out of Case crime no.34 of 2008 under Section 302, 120-B I.P.C. and Session Trial No.1123 of 2008 ( State Vs. Ram Sewak) arising out of case crime no. 60 of 2008 under Section 3/25 Arm Act was registered against the accused-appellants and trial was made in the court of learned Additional Sessions Judge, Court No.13 Lucknow.

The prosecution in order to prove its case in addition to documentary evidences produced by it adduced oral testimony of witness by producing P.W.1 Pyare Lal/ Informant and father of the deceased , P.W.2 Panna Lal, elder brother of deceased , P.W.-3 , Smt. Uma Devi , wife of deceased , P.W.4 Prem Chandra , cousin of deceased , P.W.-5, Constable Mullu Ram , who proved the Chik F.I.R. , P.W.-6, Dr. K.K. Katiyar , who conduced the postmortem, P.W. -7 Rajendra Singh , Sub Inspector , who recovered the country made pistol, P.W.-8 Ajay Kumar Sub Inspector, P.W.-9, Affjal Ansari Investigating Officer , P.W.-10 Shashi Kant Chauhan Sub Inspector, P.W.-11 Bhanu Pratap Singh Sub Inspector, P.W.-12, Ravindra Nath Mishra , Sub Inspector and P.W.-13, Lal Bahadur Yadav Sub Inspector.

Thereafter under Section 313 Cr.P.C. accused appellants were confronted over oral testimony of the witnesses adduced by the prosecution against them which they denied to be true and in defence accused appellants had produced the defence witnesses, namely, D.W.-1 Tajuddin Advocate, D.W.-2 Dhani Ram, D.W.-3 Jai Pal Singh and D.W. -4 Bajrangi Advocate.

Learned trial court on the basis of oral and documentary evidence had came to the conclusion that the charges against one of the co-accused, Ganesh Prasad is not made out so he was acquitted from the charges under Section 302/34 and 120-B I.P.C. in S.T. No. 1122 of 2008 vide Case Crime no.34 of 2008 by means of judgment and order dated 11/12.7.2011 whereas accused appellants Ram Sewak, Raj Kumar and Ram Kripal in S.T. No. 1122 of 2008 vide Case Crime no.34 of 2008 were convicted to undergo imprisonment for life with fine of Rs. 20000/-for the offence under Section 302 read with 34 I.P.C. and in default in payment of fine further undergo one year R.I.

The accused appellant Ram Sewak in S.T. No.1123 of 2008 vide Case Crime No.60 of 2008 under Section 3/25 Arms Act Lucknow was further convicted to undergo one year R.I. with fine of Rs. 2000/- for the offence under Section 3/25 Arms Act and in default of payment of fine, further undergo two months R.I.

Aggrieved from the judgment and order dated 11.12.7.2008 passed by Learned Sessions Judge, Court No.13, Lucknow, accused Ram Sewak has filed Criminal Appeal No.1282 of 2011, accused Raj Kumar has filed Criminal Appeal No. 1269 of 2011 and Ram Kripal has filed Criminal Appeal no.1412 of 2011 before this Court.

Ganesh Prasad after the judgment passed by trial court ,died as per information given by learned Additional Government Advocate.

Sri Ramendra Kumar, learned counsel appearing on behalf of accused-appellant/ Ram Sewak in criminal appeal no.1282 of 2011 submits that the entire story as set up by the prosecution is incorrect and wrong because as per the statement of P.W.-3 Uma Devi , wife of deceased, when her husband Pappu alias Satendra went to change the dress in his old house where the incident took place. However as per the site plan the same is not the place of incident but it took place out side the old house beneath the neem tree. In order to establish the same, placed reliance on the site plan (Ext Ka-9 ).

And from perusal of the statements of P.W.1 Pyare Lal/ Informant and father of the deceased , P.W.2 Panna Lal, elder brother of deceased , P.W.-3 , Smt. Uma Devi, wife of deceased who are said to be eye witnesses , there are major contradiction in their statements in respect to place of incident, as one of the eye witness i.e. P.W.2 Panna Lal has stated that deceased/ Pappu alias Satendra has been caught hold by Ganesh Prasad. however, the said statement has not been corroborated by other witnesses whereas P.W.1 Pyare Lal/author of the complainant in his statement did not taken the name of Ganesh Prasad to be present on the spot as such the testimony of the prosecution witnesses cannot be believed . In support of his arguments placed reliance on the judgment given by Hon'ble the Apex Court in the case of State of U.P. Vs. Om Pal and others, 2018 (2) JIC 900 (SC) .

Moreover all the three witnesses, namely, P.W.1 Pyare Lal , P.W.2 Panna Lal, P.W.-3, Smt. Uma Devi as eye witness are related to deceased so they are interested witnesses. Keeping in view the said facts as well as the testimony/ evidence given by them does not corroborate with each other and there are major contradiction in their statements, so the accused- appellants cannot be convicted. In support of his arguments he has placed reliance on the judgment given by Hon'ble the Apex Court in the case of Jalpat Rai and others Vs. State of Haryana ( 2011) 14 SCC 208.

He further submitted that there is previous enmity between the family members of deceased and accused-appellants because in the past one Ramesh son-in- law of Ram Asrey and real brother of the complainant was killed in connection with a land dispute , so the F.I.R. has been falsely lodged against the accused appellants.

Learned counsel for the accused appellant also submits that when accused-appellant was taken remand, the court has specifically mentioned in his order that he should be accompanied with on Tajuddin Advocate at some distance. Sri Tajuddin has produced as D.W.-1 . From his statement it transpires that on 17.2.2008 form 12.00 noon to 5.30 p.m. he alongwith accused at police-station Gudama, so the recovery memo (Ext. Ka-6) prepared by the Investigating officer is manipulated document.

In addition to above said fact, the alleged country made pistol which is said to be recovered at the pointing out of accused appellant/ Ram Sewak for committing the crime was not sent to Forensic Science Laboratory for ballistic examination to verify the fact that same is used in committing the crime or not.

Accordingly, learned counsel for the appellant submits that in view of the fact judgment passed by trial court suffer from serious infirmity liable to be set aside.

Ms. Shabana Rizvi and Mohd Alam, learned counsel appearing on behalf of accused-appellants Raj Kumar and Ram Kripal have adopted the arguments made by learned counsel appearing on behalf of accused- appellant/Ram Sewak.

In addition to the above said fact, they argued that accused-appellants Raj Kumar and Ram Kripal have been wrongly convicted under Section 302/34 I.P.C. as on the basis of evidences, the prosecution has failed to establish its case against them under section 34 I.P.C.

In this regard they also submitted that there are major contradiction in respect to role of accused-appellants Raj Kumar and Ram Kripal in the crime in question . P.W.-3 Uma Devi , wife of the deceased has stated in her statement that Ganesh Prasad caught hold the deceased/ Satendra alias Pappu. However, P.W.-1 Pyare Lal has not stated the said fact.

Lastly, it is argued that at the same set of facts and evidence Ganesh Prasad has been acquitted by the trial court as no case for conspiracy is made out, so there is no justification or reason on the part of trial court to convict accused-appellants Raj Kumar and Ram Kripal as such judgment passed by trial court is liable to be set aside.

Sri Badrul Husan learned Additional Government Advocate and Sri S.M. Kazim, learned counsel for the complainant submit that in the present case P.W.-1 Pyare Lal , P.W.-2 Panna Lal and P.W.-3 Uma Devi are the eye witness and they had stated in their statements that deceased was died due to gun shot fired by Ram Sewak on the exhortation of accused- appellants Raj Kumar and Ram Kripal and both of them actively participated in the commission of crime.

Even if P.W.-1 Pyare Lal , P.W.-2 Panna Lal and P.W.-3 Uma Devi are relative of the deceased but their evidence cannot be said to be false and unreliable as they are natural/ eye witness.

In this regard they placed reliance on the judgment given by Hon'ble Apex Court in the case of Gurjit Singh alias Gora and another Vs. State of Haryana (2015 ) 4 SCC 380.

And so far as the arguments advanced by learned counsel for the accused appellants that there is previous enmity between the parties is concerned, no benefit can be given to the accused appellants as the conviction is based on the testimony of eye witness in view of the Judgment given by the Apex Court in the case of Juman and another Vs. State of Bihar (2017) 11 SCC 85.

Further, it is submitted that there is no major contradiction between the evidence/ Statement given by P.W.-1 Pyare Lal , P.W.-2 Panna Lal and P.W.-3 Uma Devi rather the same are minor contradiction so in view of the said fact no prejudice has been caused to the accused appellant. In this regard they have placed reliance on the judgment passed by Hon'ble Apex Court in the case of State of U.P. Vs. Krishna Master and others, 2010 CRI. L.J. 3889.

Learned Additional Government Advocates also submits that after taking the accused-appellant on remand on 17.2.2008, on his pointing out,country made pistol used in commission of crime has been recovered from temple situated in courtyard of the house of the accused-appellant/ Ram Sewak, recovery memo was prepared, duly signed by accused appellant and the investigating officer and from the perusal of contents of recovery memo the position which emerge out is that Tajuddin Advocate ( D.W.-1) was also present there , evident from the statement of P.W.11 Bhanu Pratap Singh . However, if in this regard Tajuddin Advocate ( D.W.-1) junior to the counsel, who was conducting the case of the accused appellant has any grievance in this regard he should immediately moved an application before the Magistrate concerned who has given appellant- Ram Sewak on remand but the same has not been done, so no reliance can be placed on his statement.

So far as the matter not sending the country made pistol used by accused-appellant/ Ram Sewak to kill Pappu alias Satendra Kumar to the Forensic Science Laboratory,cannot so fatal to give any benefit of doubt to the accused- appellants discarding the ocular evidence given by P.W.-1 Pyare Lal, P.W.-2 Panna Lal and P.W.-3 Uma Devi, who are eye witnesses. In support of his arguments they have placed reliance on the judgment given by Hon'ble Apex Court in the case of Amar Singh Vs. Balwinder Singh and others (2003) 2 SCC 518, so the present appeals lack merit ,liable to be dismissed.

We have heard learned counsel for the parties and gone through the record.

On 31.1.2008 an F.I.R. was lodged on 31.1.2008 against four persons, Ram Sewak , Raj Kumar , Ram Kripal and Ganesh Prasad for committing the crime in which Pappu alias Satendra Kumar had died. On the basis of F.I.R. case has been registered in Case Crime No.34 of 2008 under Section 302 and 120-B I.P.C. at police Station Gudamba District Lucknow. On 31.8.2008 the dead body of the deceased was sent to postmortem to K .G.M.C. Lucknow , the same was done at 4.00 p.m. , as per postmortem report the following injuries were found on the body of the deceased:-

Firearm wound of entry 1cmx 1cm x chest cavity deep present on medline of front of chest just below both nipple margin are inverted and irregular.

Blackening , tattooing ,burning & charming present in the area of 6 x 4.5 cm present on around the wound .

On opening echynaosis present under neath above mentioned injury. Sternum fractured heart injury Rt lobe of lung and pleura lacerated about 2 times clotted blood and fluid present in thoracic cavity .

One yellow metallic bullet removed from thoracic cavity.

And causing death is mentioned as "due to shock and hemorrhage as a result of antimortem firearm injury noted".

Besides the documentary evidence, prosecution has produced thirteen witness to prove its case and on behalf of accused appellants four defence witnesses have also been produced.

And P.W.-1 Pyare Lal , P.W.-2 Panna Lal, P.W.-3 Uma Devi are witnesses of fact/ eye witnesses.

P.W.1 Pyare Lal/ informant and father of the deceased stated in his statement that on the date of incident i.e. 31.7.2008 at about 10.30 a.m. when he was contructing / repairing his house, his son Pappu alias Satendra Kumar went to another house to change his cloth thereafter Uma Devi P.W.-3 ( daugher in law) came to him and told that Ram Sewak, Raj Kumar and Ram Kripal are quarreling with Pappu alias Stendra Kumar. When they reached there, saw that on exhortation of accused Raj Kumar and Ram Kripal armed with lathi, Ram Sewak had fired on the deceased / pappu allias Satendra Kumar on his chest, later on he died

P.W. 2 Panna Lal , brother of the deceassed in his statement has also narrated the same fact i.e. when wife of the deceased P.W.-3 / Uma Devi told that some quarrel has taken place between accused appellants and the deceased then he and his father reached on the spot, saw that on the exhortation of Raj Kumar and Ram Kripal who were armed with lathi, Ram Sewak had fired by his country made pistol on Pappu alias Satendra Kumar who succumbed to death due to gun shot.

P.W.-3/ Uma Devi , wife of deceased in her statement has stated that Raj Kumar and Ram Kripal were armed with lathi and Ganesh was caught hold Pappu alias Satendra Kumar and appellant Ram Sewak had fired upon Pappu alias Satendra Kumar on his chest as a result of which he died.

P.W.-9 Affjal Ansari who prepared site plan (Ext Ka-9). In his statement he stated that the place where the Ram Sewak has fired at deceased Pappu allias Satendra Kumar was shown by letter ''A' in the site plan prepared by him and the said place within the courtyard of the house.

P.W.11 Bhanu Pratap Singh in his statement has stated that after taking the accused-appellant on remand on 17.2.2008 on his pointing out , country made pistol used in commission of crime has been recovered from temple situated in courtyard of the house, recovery memo was prepared duly signed by accused appellant.

D.W.-1 Tajuddin, Advocate in his statement has stated that he alongwith accused appellant, who was taken on remand by the police from jail as per order of remand passed by Chief Judicial Magistrate Lucknow were present in police station Gudamba from 12.00 p.m. to 5.30 p.m. on 17.2.2008 and no recovery was done on the pointing of Ram Sewak by the police authority .

Further, from the evidence given by P.W.-1 Pyare Lal , P.W.-2 Panna Lal and P.W.-3 Uma Devi the position which emerge out is that all the witnesses have categorically stated that deceased Pappu alias Satendra Kumar died due to gun shot injury fired by accused Ram Sewak from his country made pistol.

No doubt P.W.-1 Pyare Lal , P.W.-2 Panna Lal and P.W.-3 Uma Devi are related to the deceased but they are eye witness and from their evidences it cannot be borne out that they are in any manner interested witness rather they are witness of fact/ eye witnesses, so their testimony cannot be discarded on the said ground.

Because, in the case of Juman and another ( supra) Hon'ble the Apex Court has held as under:-

"We have seen in the instant case that the witnesses have vividly deposed about the genesis of the occurrence, the participation and involvement of the accused persons in the crime. The non-examination of the witnesses, who might have been there on the way to hospital or the hospital itself when deceased narrated the incident, would not make the prosecution case unacceptable. Similarly, evidence of any witness cannot be rejected merely on the ground that interested witnesses admittedly had enmity with the persons implicated in the case. The purpose of recoding of the evidence, in any case, shall always be to unearth the truth of the case. Conviction can even be based on the testimony of a sole eye-witness, if the same inspires confidence. Moreover, prosecution case has been proved by the testimony of the eye-witness since corroborated by the other witnesses of the occurrence. We are constrained to reject the submissions made on behalf of the appellants."

And in the case of Satyanarain alias Babloo Vs. State, 2019(!) ACR 482, this Court in para 38 has held as under:-

"Once again, so far as the worth of the testimony of a relative is concerned, their Lordships of the Supreme Court reiterated the same principles in Ashok Kumar Chaudhary and others vs. State of Bihar, 2008(2) ACR 2007 (SC), where it was held following the decision in re Namdeo vs. State of Maharashtra (supra):

"11. Very recently in Namdeo v. State of Maharashtra, 2007 AIR SCW 1835: 2007(2) CCSC 634: 2007(2) ACR 1522(SC), one of us (C.K. Thakker, J.) has said that a close relative cannot be characterized as an "interested" witness. He is a natural witness. His evidence, however, must be scrutinised carefully. If on such scrutiny, his evidence is found to be intrinsically reliable, inherently probable and wholly trustworthy, conviction can be based on the 'sole' testimony of such witness. Close relationship of witness with the deceased or victim is no ground to reject his evidence. On the contrary, close relative of the deceased would normally be most reluctant to spare the real culprit and falsely implicate an innocent one."

So far as the contradiction between the P.W.-1 Pyare Lal , P.W.-2 Panna Lal and Uma Devi ( P.W.-3 ) are concerned, Uma Devi (P.W.3) in her statement has stated that Ganesh Prasad had caught hold Pappu alias Satendra Kumar and Ram Sewak had fired on Pappu if the same read with entire statement and the statement given by P.W.-1 Pyare Lal , P.W.-2 Panna Lal , the position which emerge out is that all of them have categorically stated that on exhortation of accused persons Raj Kumar and Ram Kripal armed with lathi, Ram Sewak had fired on the decesed / pappu allias Satendra Kumar on his chest as a result of which he died, so in view of the said no prejudice is caused to the accused-appellants, in view of the judgment given by Hon'ble Apex Court in the case of State of U.P Vs. Krishna Master , 2010 Cri.L.J. 3889 wherein has held as under:-

"The main thing to be seen is whether those inconsistencies go to the root of the matter or pertain to insignificant aspects thereof. In the former case, the defence may be justified in seeking advantage of incongruities obtaining in the evidence. In the latter, however, no such benefit may be available to it. In the deposition of witnesses, there are always normal discrepancies, howsoever, honest and truthful they may be. These discrepancies are due to normal errors of observation, normal errors of memory due to lapse of time, due to mental disposition, shock and horror at the time of occurrence and threat to the life. It is not unoften that improvements in earlier version are made at the trial in order to give a boost to the prosecution case albeit foolishly. Therefore, it is the duty of the Court to separate falsehood from the truth. In sifting the evidence, the Court has to attempt to separate the chaff from the grains in every case and this attempt cannot be abandoned on the ground that the case is baffling unless the evidence is really so confusing or conflicting that the process cannot reasonably be carried out. In the light of these principles, this Court will have to determine whether the evidence of eye-witnesses examined in this case proves the prosecution case."

Next point to be considered is in respect of recovery of weapon, used in commission of crime and recovery memo prepared by the Investigating Officer vis-a-vis statement given by D.W.-1 Tajuddin Advocate in view of the provisions under Section 27 of the Evidence Act any benefit of doubt can be given to the appellant.

Section 27 of the Evidence Act is founded on the principle that if the confession of the accused is supported by the discovery of a fact, the confession may be presumed to be true. and not to have been extracted. It comes into operation only:

(i) if and when certain facts are deposed to as discovered in consequence of information received from an accused person in police custody; and

(ii) if the information relates distinctly to the fact discovered.

The broad ground for not admitting confessions made to a police officer under inducement. threat or promise is the danger of admitting false confessions; but the necessity for the exclusion disappears in a case provided for by this section when the truth of the confession is guaranteed by the discovery of facts in consequence of the information given.

The object of this section is to admit evidence which is relevant to the matter under inquiry. namely. the guilt of the accused, and not to admit evidence which is not relevant to that manner. The discovery of a material object is of no relevancy to the question whether the accused is guilty of the offence charged against him, unless it is connected with the offence. It is, therefore. the connection of the thing discovered which renders its discovery a relevant fact. The connection between the offence and the rhino discovered may be established by evidence other than the statement leading to the discovery but that does not exclude proof of the correction by the statement itself.

The Privy Council in the case of Polukuri Kottiaya Vs. R, AIR 1947 PC 67 held that this section, which is not artistically worded, provides an exception to the prohibition imposed by the preceding section, and enables certain statements made by a person in in police custody to the proved.

The ban as imposed by the preceding sections was presumbly inspired by the fear of the Legislature that a person under police influence might be induced to confess by the exercise of undue pressure. If all this is required to lift the ban be the inclusion in the confession of information relating to an object subsequently produced, it seems reasonable to suppose that the pursuasive powers of the police will prove equal to the occasions, and that in practice the ban will lose its effect; and the object of Section 27 was to provide for the admission of evidence which but for the existence of the section could not in consequences of the proceeding sections, be admitted in evidence (See. State of Karnataka Vs. David Razario, 2002 (7) SCC 728, Bodhraj Vs. State of J & K, 2002 (8) SCC 45 (para 18).

The principle underlying this section was taken from the amended Section 150, of the Code of Criminal Procedure, under the Amendment Act, 8 of 1869. When this Evidence Act was enacted in 1872, that Section 150, Cr. P.C., was transferred to the Evidence Act.

Under this Section:

(a) there must be information;

(b) it does not matter whether the information amounts to confession or not;

(c) that person must be in the custody of a police officer;

(d) in consequence of the information a fact must be deposed to as discovered:

(e) in such a case so much of the information as relates distinctly to the fact thereby discovered may be proved.

Hon'ble the Supreme Court in the case of Anter Singh Vs. Sate of Rajasthan, AIR 2004 SC 2865 held that "

"No such guarantee or assurance attaches to the rest of the statement which may be indirectly or remotely related to the fact discovered. The various requirements of the section can be summed up as follows:-

(1) The fact of which evidence is sought to be given must be relevant to the issue. It must be borne in mind that the provision has nothing to do with question of relevancy. The relevancy of the fact discovered must be established according to the prescriptions relating to relevancy of other evidence Connecting it with the crime in order to make the fact discovered admissible.

(2) The fact must have been discovered.

(3) The discovery must have been in consequence of some information received from the accused and not by accused's own act.

(4) The persons giving the information must be accused of any offence.

(5) He must be in the custody of police officer.

(6) The discovery of a fact in consequence of information received from an accused in custody must be deposed to

(7) Thereupon only that portion of the information which relates distinctly or strictly to the fact discovered can be proved. The rest is inadmissible."

In this regard Hon'ble the Apex Court in the case of Mukesh and another Vs. State ( NCT of Delhi) and others, (2017) 6 SCC 1 in para 445 to 451 has held as under:-

"445. Section 27 has prescribed two limitations for determining how much of the information received from the accused can be proved against him: (i) The information must be such as the accused has caused discovery of the fact, i.e. the fact must be the consequence, and the information the cause of its discovery; (ii) The information must ''relate distinctly' to the fact discovered. Both the conditions must be satisfied. Various requirements of Section 27 of the Evidence Act are succinctly summed up in Anter Singh v. State of Rajasthan (2004) 10 SCC 657:-

"16. The various requirements of the section can be summed up as follows:

(1) The fact of which evidence is sought to be given must be relevant to the issue. It must be borne in mind that the provision has nothing to do with the question of relevancy. The relevancy of the fact discovered must be established according to the prescriptions relating to relevancy of other evidence connecting it with the crime in order to make the fact discovered admissible.

(2) The fact must have been discovered.

(3) The discovery must have been in consequence of some information received from the accused and not by the accused's own act.

(4) The person giving the information must be accused of any offence.

(5) He must be in the custody of a police officer.

(6) The discovery of a fact in consequence of information received from an accused in custody must be deposed to.

(7) Thereupon only that portion of the information which relates distinctly or strictly to the fact discovered can be proved. The rest is inadmissible."

Appending a note of caution to prevent the misuse of the provision of Section 27 of the Evidence Act, this Court in Geejaganda Somaiah v. State of Karnataka (2007) 9 SCC 315, observed that the courts need to be vigilant about application of Section 27 of the Evidence Act. Relevant extract from the judgment is as under:-

"22. As the section is alleged to be frequently misused by the police, the courts are required to be vigilant about its application. The court must ensure the credibility of evidence by police because this provision is vulnerable to abuse. It does not, however, mean that any statement made in terms of the aforesaid section should be seen with suspicion and it cannot be discarded only on the ground that it was made to a police officer during investigation. The court has to be cautious that no effort is made by the prosecution to make out a statement of the accused with a simple case of recovery as a case of discovery of fact in order to attract the provisions of Section 27 of the Evidence Act."

Even though, the arrest and recovery under Section 27 of the Evidence Act is often sought to be misused, the courts cannot be expected to completely ignore how crucial are the recoveries made under Section 27 in an investigation. The legislature while incorporating Section 27, as an exception to Sections 24, 25 and 26 of the Evidence Act, was convinced of the quintessential purpose Section 27 would serve in an investigation process. The recovery made under Section 27 of the Evidence Act not only acts as the foundation stone for proceeding with an investigation, but also completes the chain of circumstances. Once the recovery is proved by the prosecution, burden of proof on the defence to rebut the same is very strict, which cannot be discharged merely by pointing at procedural irregularities in making the recoveries, especially when the recovery is corroborated by direct as well as circumstantial evidence, especially when the investigating officer assures that failure in examining independent witness while making the recoveries was not a deliberate or mala fide, rather it was on account of exceptional circumstances attending the investigation process.

While the prosecution has been able to prove the recoveries made at the behest of the accused, the defence counsel repeatedly argued in favour of discarding the recoveries made, on the ground that no independent witnesses were examined while effecting such recoveries and preparing seizure memos.

The above contention of the defence counsel urges one to look into the specifics of Section 27 of the Evidence Act. As a matter of fact, need of examining independent witnesses, while making recoveries pursuant to the disclosure statement of the accused is a rule of caution evolved by the Judiciary, which aims at protecting the right of the accused by ensuring transparency and credibility in the investigation of a criminal case. In the present case, PW-80 SI Pratibha Sharma has deposed in her cross-examination that no independent person had agreed to become a witness and in the light of such a statement, there is no reason for the courts to doubt the version of the police and the recoveries made.

When recovery is made pursuant to the statement of accused, seizure memo prepared by the Investigating Officer need not mandatorily be attested by independent witnesses. In State Govt. of NCT of Delhi v. Sunil and Another (2001) 1 SCC 652, it was held that non-attestation of seizure memo by independent witnesses cannot be a ground to disbelieve recovery of articles' list consequent upon the statement of the accused. It was further held that there was no requirement, either under Section 27 of the Evidence Act or under Section 161 Cr.P.C. to obtain signature of independent witnesses. If the version of the police is not shown to be unreliable, there is no reason to doubt the version of the police regarding arrest and contents of the seizure memos.

In the landmark case of Pulukuri Kottaya v. King-Emperor AIR 1947 PC 67, the Privy Council has laid down the relevance of information received from the accused for the purpose of Section 27 of the Evidence Act. Relevant extracts from the judgment are as under:

"10. Section 27, which is not artistically worded, provides an exception to the prohibition imposed by the preceding section, and enables certain statements made by a person in police custody to be proved. The condition necessary to bring the section into operation is that the discovery of a fact in consequence of information received from a person accused of any offence in the custody of a Police officer must be deposed to, and thereupon so much of the information as relates distinctly to the fact thereby discovered may be proved. The section seems to be based on the view that if a fact is actually discovered in consequence of information given, some guarantee is afforded thereby that the information was true, and accordingly can be safely allowed to be given in evidence; but clearly the extent of the information admissible must depend on the exact nature of the fact discovered to which such information is required to relate."

Taking into consideration above position of law and the fact of the present case the position is emerge out that when the accused appellant Ram Sewak was taken on remand by the police and the investigating officer went on the spot and at his pointing out country made pistol was recovered, recovery memo was prepared on which accused appellant/ Ram Sewak has put his signature.

In this regard P.W.-11 Bhanu Pratap Singh S.I. in his evidence states that Sri Tajjuddin Advocate was present when the recovery memo was prepared, so accused- appellants cannot derive any benefit from the Statement of D.W.-1 Sri Tajjuddin Advocate, who has stated that accused appellant/ Ram Sewak and he was in the police station Gudamba from 12.00 p.m. to 5.30 p.m. because in that circumstances, Sri Tajjuddin should immediately made an application to the Magistrate concerned informing the said fact. However the said fact has not been done by him and Sri Tajjuddin, who is assisting counsel of learned counsel who is appearing on behalf of the appellant- accused/ Ram Sewak .

So far as arguments advanced by learned counsel for the accused appellants that place which is shown letter "A" in the site plan ( Ext. Ka-9) is a place which is out side of the house and as per evidence of P.W.-1 Pyare Lal , P.W.-2 Panna Lal and P.W.-3 Uma Devi the incident took place in the house is concerned, is not correct. From the perusal of the site plan ( Ext. Ka-9) the place of incident shown by letter "A" is beneath the neem tree situated in courtyard which is part of the house.

So far as the arguments raised by learned counsel for the appellant that gun shot by which accused Ram Sewak has filed by his country made pistol at the deceased is concerned, same has not been sent to the Forensic Science Laboratory for ballistic examination , no prejudice is caused to the accused appellant as in view of the judgment given by this Court in the case of State of Punjab Vs. Hakam Singh, 2005 SCC ( Cri) 1679 in which Hon'ble the Apex Court in para-13 has held as under:-

"13. It was also pointed out by learned counsel for the respondent that no firearms were recovered and no seizure has been made of empties. It would have been better if this was done and it would have corroborated the prosecution story. Seizure of the firearms and recovering the empties and sent them for examination by the ballistic expert would have only corroborated the prosecution case but by not sending them to the ballistic expert in the present case is not fatal in view of the categorical testimony of P.W.3 about the whole incident."

And in the case of Amar Singh Vs. Balwinder Singh and others (2003) 2 SCC 518 wherein Hon'ble the Supreme Court in para 15 has held as under:-

"Coming to the last point regarding certain omissions in the DDR, it has come in evidence that on the basis of the statement of PW4 Amar Singh, which was recorded by PW14 Sardara Singh, S.I. in the hospital a formal FIR was recorded at the Police Station at 9.20 p.m. In accordance with Section 155 Cr.P.C. the contents of the FIR were also entered in the DDR, which contained the names of the witnesses, weapons of offence and place of occurrence and it was not very necessary to mention them separately all over again. It is not the case of the defence that the names of the accused were not mentioned in the DDR. We fail to understand as to how it was necessary for the investigation officer to take in his possession the wire gauze of the window from where A-1 is alleged to have fired. The wire gauze had absolutely no bearing on the prosecution case and the investigating officer was not supposed to cut and take out the same from the window where it was fixed. It would have been certainly better if the investigating agency had sent the fire arms and the empties to the Forensic Science Laboratory for comparison. However, the report of the Ballistic Expert would in any case be in the nature of an expert opinion and the same is not conclusive. The failure of the investigating officer in sending the fire arms and the empties for comparison cannot completely throw out the prosecution case when the same is fully established from the testimony of eye-witnesses whose presence on the spot cannot be doubted as they all received gun shot injuries in the incident. In Karnel Singh v. State of M.P. (1995) 5 SCC 518 it was held that in cases of defective investigation the court has to be circumspect in evaluating the evidence but it would not be right in acquitting an accused person solely on account of the defect and to do so would tantamount to playing into the hands of the investigating officer if the investigation is designedly defective. In Paras Yadav & Ors. v. State of Bihar (1999) 2 SCC 126 while commenting upon certain omissions of the investigating agency, it was held that it may be that such lapse is committed designedly or because of negligence and hence the prosecution evidence is required to be examined de hors such omissions to find out whether the said evidence is reliable or not. Similar view was taken in Ram Bihari Yadav v. State of Bihar (1998) 4 SCC 517 when this Court observed that in such cases the story of the prosecution will have to be examined de hors such omissions and contaminated conduct of the officials, otherwise, the mischief which was deliberately done would be perpetuated and justice would be denied to the complainant party and this would obviously shake the confidence of the people not merely in the law enforcing agency but also in the administration of justice. In our opinion the circumstances relied upon by the High Court in holding that the investigation was tainted are not of any substance on which such an inference could be drawn and in a case like the present one where the prosecution case is fully established by the direct testimony of the eye-witnesses, which is corroborated by the medical evidence, any failure or omission of the investigating officer cannot render the prosecution case doubtful or unworthy of belief."

Further, from the material on record the position which emerge out is to the effect that Raj Kumar and Ram Kripal went to the house of deceased where the quarrel has taken place between them and deceased thereafter on exhortation , Ram Sewak has fired at the deceased/ Pappu @ Satendra Kumar as a result of which he died as such trial court has rightly convicted the accused appellants under Section 302 read with 34 I.P.C.

Section 34 of Indian Penal Code gives only a general definition as to what constitutes joint liability, it does not give any punishment for criminal acts done jointly by two or more than two persons. This section is only a rule of evidence and it does not create any substantial offence. Section 34 on its own does not create any distinct offence and it lays down just a principle of liability that when two or more persons do something which is contrary to law, then both of them should be held liable. The Section 34 of IPC is a principle of constructive liability and the essence of that liability is existence of common intention in the minds of accused. There is also a canon in the criminal jurisprudence that the courts cannot distinguish between the conspirators and it is possible for them to see what part is played by which conspirator in the commission of the crime, so each person is held jointly liable for the acts of another. Since section 34 is itself not an offence, so every time when any criminal act is done by two or more persons, then both the sections i.e. section for that criminal offence and section of joint liability is applied. In the above case also, section 34 was applied with section 302 of IPC so as to convict the offender. As no offence is prescribed under section 34 of IPC, this section is always read with other sections of IPC. Some of the sections in which the concept of joint liability is discussed in IPC are section 34, section 120A and 120 B, section 149 of IPC.

Thus, according to Section 34, when a criminal act is done by several persons in furtherance of 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.

II. Object of Section 34 :- Section 34 lays down only a rule of evidence and does not create a substantive offence. This section is intended to meet cases in which it may be difficult to distinguish between the acts of the individual members of a party or to prove exactly what part was taken by each of them in furtherance of the common intention of all. This section really means that if two or more persons intentionally do a thing jointly, it is just the same as if each of them has done it individually. The reason why all are deemed guilty in such cases is that the presence of accomplices gives encouragement, support and protection to the person actually committing an act.

III. Element of Section 34 : To attract the application of Section 34, the following conditions must be satisfied:-

Some Criminal Act :- ''Criminal act' used in section 34 does not refer to individual acts where a crime is committed by a group of persons. Where a crime is committed by several persons in furtherance of common intention of all of them, each of them doing some act, similar or diverse, big or small shall be liable for that act. ''That act' refers to the ''criminal act' used in section 34 which means the unity of criminal behaviour which results in something for which an individual would be punishable if it were all done by himself alone in an offence.

Criminal Act Done by Several Persons :- The criminal act in question must have been done by several persons i.e. by more than one person. The number of wrong doers should be at least two. Most importantly, if the criminal act was fresh and independent act springing wholly from the mind of the doer, the others are not liable merely because when it was done they were intending to be partakers with the doer in a different criminal act.

Common Intention :- The words "in furtherance of the common intention of all" were added to section 34 after words ''persons' in 1870 the idea for which, possibly, was derived from the following passage of the Privy Council's judgment:

"Where parties go with a common purpose to execute a common intention, each and everyone becomes responsible for the acts of each and every other in execution and furtherance of their common purpose, as the purpose is common so must be the responsibility." [Ref. Ganesh Singh v. Ram Raja, (1869) 3 Beng LR (PC) 44, 45]

In nutshell, it can be said that the concept of joint liability comes under Section 34 of IPC which states that "when a criminal act is done by several persons, in furtherance of the common intention of all, each of such persons is liable for that act in the same manner as if it were done by him alone." The section can be explained as when two or more persons commit any criminal act and with the intention of committing that criminal act, then each of them will be liable for that act as if the act is done by them individually.

The ingredients of section 34 of IPC are-

(1) A criminal act is done by several persons;

(2) The criminal act must be to further the common intention of all;

(3) There must be participation of all the persons in furthering the common intention.

Further, the concept of Joint Liability is embodied under Section 34 of Indian Penal Code - "Acts done by several persons in furtherance of common intention- when a criminal act is done by several persons in furtherance of common intention of all, each of such persons is liable for that act in the same manner as if done by him alone." When IPC was enacted in 1860, section 34 at that time didn't included words ''in furtherance of common intention', then an amendment was made in year 1870 to amend Indian Penal Code and then these words were included in the section 34. The amended section 34 of IPC simply says that all those persons who have committed a crime with a common intention and they have acted while keeping in mind the common intention, then everyone should be liable for the acts of another done in common intention as if the act is done by the person alone. It happens that different persons perform different acts in the commission of the act or non commission of the act, even though when section 34 applies, all the persons in group are jointly liable for the acts of another.

The case of Barendra Kumar Ghosh v. King Emperor, (1924) L.R. 52 I.A. 40, 49 was one of the earliest cases where the court convicted another person for the act of another done in furtherance of common intention. The facts of the case are, a group of armed persons entered in the police station on 3rd August, 1923. They demanded money from the post master where he was counting the money. They fired from the pistol at the postmaster, due to which the postmaster died on the spot. All of the accused ran away without taking money. The Police was able to catch Barendra Kumar Ghosh who was standing outside the post office as a guard. Barendra's contention was that he was only standing as a guard but the Calcutta high court convicted him for murder under section 302 r/w section 34 of Indian Penal Code. When he appealed in the Privy Council, his appeal was rejected. (See also Mahbub Shah v. King-Emperor, (1945) L.R. 72 I.A. 148, 153, 154)

Section 34 of Indian Penal Code gives only a general definition as to what constitutes joint liability, it does not give any punishment for criminal acts done jointly by two or more than two persons. This section is only a rule of evidence and it does not create any substantial offence. Section 34 on its own does not create any distinct offence and it lays down just a principle of liability that when two or more persons do something which is contrary to law, then both of them should be held liable. The Section 34 of IPC is a principle of constructive liability and the essence of that liability is existence of common intention in the minds of accused. There is also a canon in the criminal jurisprudence that the courts cannot distinguish between the conspirators and it is possible for them to see what part is played by which conspirator in the commission of the crime, so each person is held jointly liable for the acts of another. Since section 34 is itself not an offence, so every time when any criminal act is done by two or more persons, then both the sections i.e. section for that criminal offence and section of joint liability is applied. In the above case also, section 34 was applied with section 302 of IPC so as to convict the offender. As no offence is prescribed under section 34 of IPC, this section is always read with other sections of IPC. Some of the sections in which the concept of joint liability is discussed in IPC are section 34, section 120A and 120 B, section 149 of IPC.

It is well established that commission of a criminal act by several persons in furtherance of the common intention of all pre-supposes a prior meeting of mind. The classic statement of law is to be found in Pandurang, Tukia and Bhillia v. The State of Hyderabad [(1955) SCR 1083] in which Bose J. speaking for the Court observed:

"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 a: Mahbub Shah v. King-Emperor [(1945) L.R. 72 I.A. 148, 153, 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 [(1924) L.R.52 I.A. 40, 49] and Mahbub Shah v. King-Emperor. 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."

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 by-standers 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 premediatated 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".

Section 34 is only a rule of evidence and does not create a substantive offence. In Barendra Kumar Ghosh v. King Emperor, AIR 1925 PC 1, the Privy Council has pointed out:

"Section 34 deals with 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."

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

In Dharam Pal and Ors. v State of Haryana [(AIR 1978 SC 1492)] this Court laid down the test when Section 34 IPC is applicable and held:

"It may be that when some persons start with a pre-arranged plan to commit a minor offence, they may in the course of their committing the minor offence come to an understanding to commit the major offence as well. Such an understanding may appear from the conduct of the persons sought to be made vicariously liable for the act of the principal culprit or from some other incriminatory evidence but the conduct or other evidence must be such as not to leave any room for doubt in that behalf.

A criminal Court fastening vicarious liability must satisfy itself as to the prior meeting of the minds of the principal culprit and his companions who are sought to be constrictively made liable in respect of every act committed by the former. There is no law to our knowledge which lays down that a person accompanying the principal culprit shares his intention in respect of every act which the latter might eventually commit. The existence or otherwise of the common intention depends upon the facts and circumstances of each case. The intention of the principal offender and his companions to deal with any person who might intervene to stop the quarrel must be apparent from the conduct of the persons accompanying the principal culprit or some other clear and cogent incriminating piece of evidence. In the absence of such material, the companion or companions cannot justifiably be held guilty for every offence committed by the principal offender.

In Brijlala Pd. Sinha v. State of Bihar [(1998)5 SCC 699] this Court in clear and categorical terms laid down that "unless a common intention is established as a matter of necessary inference from the proved circumstances, the accused persons will be liable for their individual act and not for the act done by any other person. For an inference of common intention to be drawn for the purposes of Section 34, the evidence and the circumstances of the case should establish, without any room for doubt, that a meeting of minds and a fusion of ideas had taken place amongst the different accused and in prosecution of it, the overt acts of the accused persons flowed out as if in obedience of the command of a single mind. If on the evidence, there is doubt as to the involvement of a particular accused in the common intention, the benefit of doubt should be given to the said accused person."

There is no dispute with the proposition that the common intention can develop and manifest itself at the spur of moment. But the question for consideration is, whether there is any evidence in the present case to indicate that in fact such a common intention was developed between appellant and A-4 and in furtherance of such shared common intention A-4 committed the murder of the deceased. The evidence of PW-1 and PW-2 does not suggest that any such common intention developed on the spur of moment leading to the murder of deceased by A-4. In the circumstances, it would be unsafe to convict the appellant for the offence punishable under Section 302 with the aid of Section 34 IPC.

In Suresh and another v. State of U.P. [(2001)3 SCC 673] Hon'ble the Apex Court after referring to number of its earlier judgments and the judgments of the Privy Council observed that " it is difficult to conclude that a person, merely because he was present at or near the scene without doing anything more, without even carrying a weapon and without even marching alongwith the other assailants, could also be convicted with the aid of Section 34 IPC for the offence committed by the other accused." In the present case, the FIR shows that at about 9.15P.M. the appellant and A-4 entered the house and stood there; on seeing them, the deceased got up from his chair and moved towards them "asking them who are they" whereupon A-4 shot the deceased causing bleeding injury due to which deceased fell down, the appellant and A-4 ran away towards the street. The contents of the FIR and the evidence of PW-1 and PW-2 read together make it clear that the appellant was not armed as erroneously held by the High Court. In the circumstances, it would be impossible to draw any inference that A-4 committed murder in furtherance of common intention shared by the appellant. In fact, neither there is any charge nor any evidence even as against A-4 that he shared common intention along with the appellant to commit murder of the deceased. There must be more than one person to share common intention to commit criminal act for attracting the applicability of Section 34 IPC. It is clear from the evidence that A-4 did not act conjointly with the appellant in committing the murder. If he did not act conjointly with the appellant, the appellant could not have acted conjointly with A-4.

Hon'ble the Apex Court in the case of Vijendra Singh vs. State of U.P., AIR 2017 Supreme Court 860, held as under :-

"Paragraph 10 of the authority in the case of Jai Bhagwan and Ors. v. State of Haryana, (1999) 3 SCC 102 has been drawn, which reads as under :

"10. To apply Section 34 IPC apart from the fact that there should be two or more accused, two factors must be established: (i) common intention and (ii) participation of the accused in the commission of an offence. If a common intention is proved but no overt act is attributed to the individual accused, Section 34 will be attracted as essentially it involves vicarious liability but if participation of the accused in the crime is proved and a common intention is absent, Section 34 cannot be invoked. In every case, it is not possible to have direct evidence of a common intention. It has to be inferred from the facts and circumstances of each case."

He has also relied on the decision in Suresh Sakharam Nangare vs. State of Maharashtra, (2012) 9 SCC 249. In the said case, the Court after referring to Section 34 IPC opined that a reading of the above provision makes it clear that to apply Section 34, 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. It further makes clear that if common intention is proved but no overt act is attributed to the individual accused, Section 34 will be attracted as essentially it involves vicarious liability but if participation of the accused in the crime is proved and common intention is absent, Section 34 cannot be invoked.

\ In the said case, the Court after analyzing the evidence opined that there is no material from the side of the prosecution to show that the appellant therein had any common intention to eliminate the deceased because the only thing against the appellant therein was that he used to associate himself with the accused for smoking ganja. On this factual score, the Court came to hold that the appellant could not be convicted in aid of Section 34 IPC.

In this regard, we may usefully refer to a passage from the authority in Pandurang and Ors. v. State of Hyderabad, AIR 1955 SC 216. The three-Judge Bench in the said case adverted to the applicability and scope of Section 34 IPC and in that context ruled that:-

"32. ... 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 Emperor10. 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, AIR 1925 PC 1 and Mahbub Shah v. King Emperor AIR 1945 PC 118. 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".

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."

And, again:-

"34. ... But to say this is no more than to reproduce the ordinary rule about circumstantial evidence, for there is no special rule of evidence for this class of case. At bottom, it is a question of fact in every case and however similar the circumstances, facts in one case cannot be used as a precedent to determine the conclusion on the facts in another. All that is necessary is either to have direct proof of prior concert, or proof of circumstances which necessarily lead to that inference, or, as we prefer to put it in the time-honoured way, "the incriminating facts must be incompatible with the innocence of the accused and incapable of explanation on any other reasonable hypothesis". (Sarkar's Evidence, 8th Edn., p. 30)."

In this context, we may refer with profit to the statement of law as expounded by the Constitution Bench in Mohan Singh & Anr. vs. State of Punjab,, AIR 1963 SC 174. In the said case, the Constitution Bench has held that Section 34 that deals with cases of constructive criminal liability provides that if a criminal act is done by several persons in furtherance of the common intention of all, each of such person is liable for the act in the same manner as if it were done by him alone. It has been further observed that the essential constituent of the vicarious criminal liability prescribed by Section 34 is the existence of common intention. The common intention in question animates the accused persons and if the said common intention leads to commission of the criminal offence charged, each of the person sharing the common intention is constructively liable for the criminal act done by one of them. The larger Bench dealing with the concept of constructive criminal liability under Sections 149 and 34 IPC, expressed that just as the combination of persons sharing the same common object is one of the features of an unlawful assembly, so the existence of a combination of persons sharing the same common intention is one of the features of Section 34. In some ways the two sections are similar and in some cases they may overlap. The common intention which is the basis of Section 34 is different from the common object which is the basis of the composition of an unlawful assembly. Common intention denotes action-in-concert and necessarily postulates the existence of a prearranged plan and that must mean a prior meeting of minds. It would be noticed that cases to which Section 34 can be applied disclose an element of participation in action on the part of all the accused persons. The acts may be different; may vary in their character, but they are all actuated by the same common intention. Thereafter, the Court held:-

"It is now well-settled that the common intention required by Section 34 is different from the same intention or similar intention. As has been observed by the Privy Council in Mahbub Shah v. King-Emperor , AIR 1945 PC 118 common intention within the meaning of Section 34 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 and that the inference of common intention should never be reached unless it is a necessary inference deducible from the circumstances of the case."

In Harshadsingh Pahelvansingh Thakore, AIR 1977 SC 710, a three-Judge Bench, while dealing with constructive liability under Section 34 IPC has ruled thus:-

"Section 34 IPC fixing constructive liability conclusively silences such a refined plea of extrication. (See Amir Hussain v. State of U.P., (1975) 4 SCC 247 ; Maina Singh v. State of Rajasthan, (1976) 2 SCC 827) Lord Sumner's classic legal shorthand for constructive criminal liability, expressed in the Miltonic verse "They also serve who only stand and wait" a fortiori embraces cases of common intent instantly formed, triggering a plurality of persons into an adventure in criminality, some hitting, some missing, some splitting hostile heads, some spilling drops of blood. Guilt goes with community of intent coupled with participatory presence or operation. No finer juristic niceties can be pressed into service to nullify or jettison the plain punitive purpose of the Penal Code."

In Lallan Rai and Ors. v. State of Bihar, (2003) 1 SCC 268, the Court relying upon the principle laid down in Barendra Kumar Ghosh AIR 1925 PC 1, has ruled 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.

In Goudappa and Ors. v. State of Karnataka, (2013) 3 SCC 675 the Court has reiterated the principle by opining that Section 34 IPC lays down a principle of joint liability in doing a criminal act and the essence of that liability is to be found in the existence of common intention. The Court posed the question how to gather the common intention and answering the same held that the common intention is gathered from the manner in which the crime has been committed, the conduct of the accused soon before and after the occurrence, the determination and concern with which the crime was committed, the weapon carried by the accused and from the nature of the injury caused by one or some of them and for arriving at a conclusion whether the accused had the common intention to commit an offence of which they could be convicted, the totality of circumstances must be taken into consideration.

The aforesaid authorities make it absolutely clear that each case has to rest on its own facts. Whether the crime is committed in furtherance of common intention or not, will depend upon the material brought on record and the appreciation thereof in proper perspective. Facts of two cases cannot be regarded as similar. Common intention can be gathered from the circumstances that are brought on record by the prosecution. Common intention can be conceived immediately or at the time of offence. Thus, the applicability of Section 34 IPC is a question of fact and is to be ascertained from the evidence brought on record. 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 fact of the case and circumstances of the situation. Whether in a proved situation all the individuals concerned therein have developed only simultaneous and independent intentions or whether a simultaneous consensus of their minds to bring about a particular result can be said to have been developed and thereby intended by all of them, is a question that has to be determined on the facts. (See : Kirpal and Bhopal v. State of U.P., AIR 1954 SC 706).

In Bharwad Mepa Dana and Anr. v. The State of Bombay, AIR 1960 SC 289, it has been held that Section 34 IPC is intended to meet a case in which it may be difficult to distinguish the 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. The principle which the Section embodies is participation in some action with the common intention of committing a crime; once such participation is established, Section 34 is at once attracted.

In the case at hand, it is contended that there is no injury caused by lathi or ballam. Absence of any injury caused by a lathi cannot be the governing factor to rule out Section 34 IPC. It is manifest from the evidence that the accused-appellants had accompanied the other accused persons who were armed with gun and they themselves carried lathi and ballam respectively. The carrying of weapons, arrival at a particular place and at the same time, entering into the shed and murder of the deceased definitely attract the constructive liability as engrafted under Section 34 IPC." (See Ganeshlal vs. State of Maharashtra, (1992) 3 SCC 106).

Further, Hon'ble the Supreme Court in the case of Vijendra Singh Vs. State of U.P. , AIR 2017 Supreme Court, 860 in para 25 has held as under:-

"25. In the case at hand, it is contended that there is no injury caused by lathi or ballam. Absence of any injury caused by a lathi cannot be the governing factor to rule out Section 34 IPC. It is manifest from the evidence that the accused-appellants had accompanied the other accused persons who were armed with gun and they themselves carried lathi and ballam respectively. The carrying of weapons, arrival at a particular place and at the same time, entering into the shed and murder of the deceased definitely attract the constructive liability as engrafted under Section 34 IPC."

For the foregoing reasons, we do not find any illegality or infirmity in the judgment and order dated 11/12.7.2011 passed by Additional Sessions Judge, Court No.13, Lucknow in S.T. No. 1122 of 2008 (State Vs. Ram Sewak and others) thereby convicting and sentencing the appellants Ram Sewak, Raj Kumar and Ram Kripal under Section 302/34 I.P.C. and in S.T. No.1123 of 2008 ( State Vs. Ram Sewak ) thereby convicting and sentencing the appellant Ram Sewak under Section 3/25 Arms Act Accordingly , criminal appeals, namely, Criminal Appeal Nos.1282 of 2011, 1269 of 2011 and 1412 of 2011 lack merit and are dismissed.

Accused- appellants Raj Kumar and Ram Kripal are on bail . Their bail bonds are cancelled and sureties are discharged.

Chief Judicial Magistrate concerned is directed to ensure the arrest of the accused-appellants namely, Raj Kumar and Ram Kripal and send them to prison to serve out the remaining sentences as awarded by learned trial court.

So far as accused-appellant, Ram Sewak is concerned, he is already in jail for serving out the sentence.

Let a certified copy of this order alongwith lower court record be transmitted for necessary compliance.