JUDGMENT Roy, J. - Chet Ram (60) and Kripa Ram (41) son of Chheda Lal, Shyam Shanker (62) son of Ram Ghulam and Shyam Signh (28) son of Manna all residents of village Keontra within police circle Auraiya in district Etawah have been convicted for rioting and for causing the death of one Hub Lal. Chet Ram has been sentenced u/s 147, IPC to two years' rigorous imprisonment and u/s 302 read with Sections 34 and 149, IPC to death. Kripa Ram and Shyam Singh have been sentenced u/s 148, IPC and Shyam Shankar u/s 147, IPC and each sentenced to two years' rigorous imprisonment. Each of the three has further been sentenced to life imprisonment u/s 302, IPC read with S. 34,149 & 114, IPC. These convicte d persons have appealed against their convictions and sentences. Along with the appeal, we have before us the usual reference of the learned Addl. Sessions Judge of Etawah for the confirmation of the death sentence of Chet Ram. 2. Two others Mutkan, brother of Shyam Singh accused and Sookham, residents of the same village were also alleged to have taken part in this crime, but they are fugitives from law and are said to be still absconding The deceased Hub Lal aged about 60 years was by caste a Mallah and he lived in village Bhadora about two miles to the west of village Keontra. The prosecution alleged that he was murdered by the accused on 30-9-1956 a little before midday for the simple reason that Hub Lal who was summoned as a prosecution witness for appearance in court on 20-10-1956, in a complaint case brought by one Sheo Prasad against Chet Ram, Shyam Singh and Mutkan u/s 440, IPC was adamant in giving evidence in the case and was not listening to the behests of the accused persons not to figure as a witness. In the back ground of that motive it is said that on 30-9-1956 at about midday, when Hub Lal was working on his field at a distance of about 3 furlongs to the east of village Bhadora in the company of his son-in-law Soney Lal PW 1 and a labourer Ram Shankar PW 2, Chait Ram Appellant along with the two absconders Mutkan and Sookham approached him and told him that they wanted to talk to him in private and that he should send away Soney Lal and Ram Shankar. In deference to their wishes, Soney Lal and Ram Shanker moved away to a Babul tree at a distance of about 30 paces from there. Chait Ram, Mutkan and Sookham talked to Hub Lal for some time. Then all of a sudden, an attack was lodged on Hub Lal by these three persons, who were respectively armed with lathi, spear and Gupti. Soney Lal and Ram Shanker on seeing the attack ran towards that side after raising an alarm. It is said that at that moment, Kirpa Ram Appellant armed with a Kulhari, Shyam Shanker Appellant armed with a lathi and Shyam Signh Appellant armed with a spear came out of the Bajra field of Hub Lal and shouted at Soney Lal and Ram Shanker that they should beware and that if they advanced a step further, they would be killed. These two persons got afraid and they did not, therefore, go forward. It is said that Har Sukh PW 4, Sheo Narain PW 3 and Nakesy who were in the neighbouring field and who saw this marpit also raised an alarm, and then the accused persons escaped to their village Keontra and whilst escaping Mutkan tauntingly addressed Hub Lal and said: "Now give evidence in God's house." Hub Lal died at the spot. The Chaukidar was called and in his company Soney Lal went to police station Auraiya, situate at a distance of about 6 miles from the place of occurrence, and lodged the first information report on the same day at 3 p.m. The report was obviously made without any delay. It was taken down by Head Constable Abdul Aziz Khan PW 9 in the presence of Sub-Inspector B. L. Chaturvedi PW 12, second officer of the thana who proceeded to the place of occurrence reaching there at about sun set. It was taken down by Head Constable Abdul Aziz Khan PW 9 in the presence of Sub-Inspector B. L. Chaturvedi PW 12, second officer of the thana who proceeded to the place of occurrence reaching there at about sun set. He found the dead body lying on the scene of occurrence. There was blood at the spot which he scraped from the ground and which he sealed up in a container in the presence of Ram Dayal and Ram Ratan PW 5. He prepared the inquest report and sent away the dead body to the mortuary at Etawah for post mortem examination. On the same night at about 11 or 12, he recorded the statements of Soney Lal, Ram Shankar, Sheo Narayan and Neksey and on the morning of 1-10-1956, he recorded the statement of Harsukh. On 1st of October, he prepared the site plan Ext. P7 which was supplemented by another site plan Ext. P7/1 prepared by him on 19-4-1957, In the morning of 1-10-1956, he went to village Keontra in search of the accussed but he could not find them till 10 in the night. He returned back to the police station on 2-10-1956 at 6 a.m. when he deposited there the blood stained earth. On 5-10-1956, the. investigation was handed over to Sub Inspector Hirdey Ram Misra PW 13, Station Officer of the Police station. He too made a search of the accused persons but could not find them. He reported for action being taken against them u/s s. 87 and 88, CrPC, and when Chait Ram and Kirpa Ramsurren dered on 10-10-1956 and Shyam Shanker on 12-10-1956, he submitted the charge sheet, on 22-10-1956. Shyam Singh Appellant surrendered thereafter. 3. The post mortem examination was conducted on 1-10-1956 by Dr. B. L. Agrawal, the Civil Surgeon of Etawah and it revealed that Hub Lal had the following injuries on him: (1) Incised wound 2 3/4"X1/2" bone deep on right side of top of head, vertically placed about 4" about right ear. (2) Constusion 2"X1 1/2" on right side of face lower part and lower jaw region and communited fractures of right upper and lower jaw bones. (3) A small contusion 3/4 "X1/2"X lip deep on right side of lower lip. (4) Penetrating wound 1 1/4"X1/2"X abdomen deep on the right side of abdominal wall, about 3" above and to right of navel. (3) A small contusion 3/4 "X1/2"X lip deep on right side of lower lip. (4) Penetrating wound 1 1/4"X1/2"X abdomen deep on the right side of abdominal wall, about 3" above and to right of navel. (5) Contusion 6"X1 1/2" on right side of neck lower part and right side of chest upper part, front. 4. The internal examination disclosed that there was a fissured fracture of frontal and right parietal bones measuring about 3 1/2" in length under injury No 1. Under injury No. 5 the right 1st, 2nd, 3rd, 4th and 5th ribs were found fractured at their anterior portion. The liver was found penetrated through and through in its right lobe. In the opinion of the Civil Surgeon, death was due to fracture of the frontal and parietal bones of head and the penetrating injury into the liver resulting in haemorrhage and shock and coma. The Civil Surgeon was of opinion that injuries Nos. 1 and 4 taken individually had been sufficient in the ordinary course of nature to cause death. According to the Civil Surgeon, injury No. 1 (which as stated by the eye witnesses was caused by Mutkan with a spear) could have been caused by the edge of a spear head: and injury No. 4 (which according to the eye-witnesses was caused by Sookham with his Gupti) could have been caused by any sharp penetrating weapon like spear or a Gupti. The Civil Surgeon was not asked as to how the injuries Nos. 2, 3 and 5 could have been caused; but considered in the light of the statement of Soney Lal PW 1, Ram Shanker PW 2 and Sheo Narain PW3 injuries Nos. 2 and 5 were caused by the lathi of Ghait Ram and injury No. 3 by a fall. 5. The motive for the crime has been testified to by Soney Lal PW1 himself. His statement on the point finds support from the fact that in the complaint filed by Sheo Prasad against some of the accused persons, Hub Lal gave his statement under the provisions of S. 202 or the Code of Criminal Procedure and he was also summoned by the court to give evidence at the later stage of case. It has been urged that the motive alleged was inadequate. It has been urged that the motive alleged was inadequate. The motive may not be adequate; but the absence of a motive or the inadequacy of the motive loses its importance if the commission of the crime is held to be proved by clear cogent and convincing evidence. We would, therefore, proceed to examine the evidence of the witnesses in order to see if that is reliable and if it fits in with the probabilities of the case and gains support from the medical evidence on the record. 6. In advancing the prosecution story as narrated by him in the first information report, Soney Lal stated in Court that Mutkan gave only one spear thrust to Hub Lal on the face and Sookham gave only one Gupti injury on his abdomen and Chait Ram gave two lathis hits and that none of them gave him any blow after Hub Lal fell flat on the ground. Soney Lal also stated that Hub Lal died almost instantaneously at the very spot where the attack was lodged over him on his field a little before midday when Chait Ram along with the two absconding accused came there. Soney Lal is the son-in-law of Hub Lal deceased. He was living with him and was assisting him in his cultivation. Hub Lal had no male issue. Soney Lal has a son by the name of Jai Narain. Hub Lal has another daughter who is married to Ram Sahai of village Aslawa; but there is no off-spring of this daughter. The presence of Soney Lal at the time of the occurrence is rendered highly probable. It is testified to by the other witnesses; and it gains a large measure of support by the fact that the incident was reported to the police by Soney Lal himself within 3 hours of the occurrence. The police station was situate at a distance of about 6 miles There, can, therefore, be no doubt whatsoever that the first information report was made within the quickest possible time. 7. Ram Shanker PW 2 who is distantly related to Hub Lal as nephew was working with Soney Lal on the field of the deceased. He endeavoured to support the prosecution story. He introduced in the court of sessions a slightly different story regarding the weapons held by Mutkan, Chait Ram and Sookham. 7. Ram Shanker PW 2 who is distantly related to Hub Lal as nephew was working with Soney Lal on the field of the deceased. He endeavoured to support the prosecution story. He introduced in the court of sessions a slightly different story regarding the weapons held by Mutkan, Chait Ram and Sookham. He deposed before the Sessions Judge that Mutkan had the spear with which he gave only one blow over the face of deceased and Chait Ram had the Gupti with which he gave only one blow on the abdomen and Sookham had the lathi with which he gave two blows. In this respect, Ram Shanker PW 2 was treated as a hostile witness by the prosecution and he was cross-examined on behalf of the prosecution. His statement recorded by the committing Magistrate as to the weapons had by these three persons was brought on record u/s 288 of the CrPC. That statement was completely in accord with the story set out by Soney Lal PW 1. Ram Shanker's contention that the statement made by him before the committing Magistrate was erroneous in this respect and that it was shaped by him in that fashion at the behest of the police and of the residents of his village, had not had the support of any evidence whatsoever. There was no earthly reason why the police and the village people would get interested in transposing the weapons held by Chait Ram and Sookham. The learned Sessions Judge was in our opinion right in treating the statement of this witness on this point recorded by the committing Magistrate as evidence in the case under the provisions of S. 288 of the Code of Criminal Procedure and further in drawing the conclusion that probably some sort of influence was brought to bear upon this witness on behalf of the accused persons to introduce a slight discrepancy in the story in order to throw some doubt over the case. 8. Sheo Narayan P N 3 who is the first cousin of Ram Shanker PW 2 stated that at the time of the occurrence, he was grazing his cattle at a distance of about 85 paces from the field of Hub Lal. 8. Sheo Narayan P N 3 who is the first cousin of Ram Shanker PW 2 stated that at the time of the occurrence, he was grazing his cattle at a distance of about 85 paces from the field of Hub Lal. He swore that a little before midday, Chait Ram, Sookham and Mutkan came over the field of Hub Lal armed with lathi, Gupti and spear respectively and that after parleying with Hub Lal for a few moments they lodged the attack on him as a consequence of which Hub Lal died at the spot. Sheo Narain's testimony commended itself to the learned Sessions Judge who had the advantage of Judging the worth of his statement by marking his demeanour in the witness box. Sheo Narayan admitted that about two years back, he purchased some land jointly with the deceased in village Marhapur and that the two constructed separate 'kothas' of their own on that land. He also stated that in the complaint filed by Sheo Prasad against some of the accused he was a witness for the prosecution. It was urged before the Sessions Judge and also before us that for these two reasons the testimoney of Sheo Narayan is rendered doubtful. In our opinion, these factors will not make Sheo Narayan an incompetent witness. His evidenee has to be treated with some amount of caution and if it finds corroboration, as of course it does, from other evidence, it can safely be depended upon. 9. As regards Harsukh PW 4 who was cited as an eye witness along with Sheo Prasad in the first information report, the learned Sessions Judge did not doubt his presence over his field as a distance of about 255 paces to the south west of the place of the occurrence; and he did not also doubt that he was attracted to the place on the raising of the alarm, but he doubted his claim of having over heard the conversation that passed at the time of the occurrence from that distant place where he had been, and he came to the conclusion that the statement on the question of details was based upon what he came to know from others at the scene of occurrance rather than upon what he perceived by his own senses. The Sessions Judge was in our opinion right in drawing that conclusion. 10. The Sessions Judge was in our opinion right in drawing that conclusion. 10. The statements of Soney Lal and Sheo Narayan and the statement of Ram Shanker read in the light of what he had said before the committing Magistrate, which was made use of by the learned Sessions Judge under the provisions of S. 288, CrPC, found complete support from the medical evidence on the record and the went to establish the part played by Chait Ram and the two absconding accused in lodging the attack over the deceased. 11. Coming now to the part alleged to have been played by Shyam Shanker, Kripa Ram and Shyam Singh Appellants, it has been stated by all the four witnesses that after Hub Lal had been felled to the ground these accused persons came out of the bajra field of Hub Lal and they threatened Soney Lal and Ram Shanker that if they advanced towards Hub Lal they would be killed. Soney Lal and Harsukh witnesses stated that Shyam Singh had a spear, Kripa Ram had a 'kulhari' and Shyam Shanker had a lathi. Ram Shanker PW 2 stated that these three persons had no weapons in their hands. Sheo Narayan PW 3 was absolutely silent on the point of weapons held by them. In fact, the prosecution counsel did not think it necessary to put to him any question on the point. Even Harsukh PW 4 does not appear to have stated to the investigating officer when his statement u/s 16l, Code of Criminal Procedure was taken that any threat had been held out by these three accused to Soney Lal and Ram Shanker witnesses Harsukh stated in the court of Sessions that he had given that information to the investigating officer, that he could assign any reason why a reference to it is not to be found in the record of statement made by the investigating officer. Sub-Inspector B. L. Chaturvedi PW 12 who took down the statement of Harsukh witness confessed that in the record of statement maintained by him, there is an absence of this salient feature of the alleged threat held out by these three accused. Having regard to all these factors, there is, in our opinion, a reasonable doubt about the presence and the complicity of these three accused in the crime. Having regard to all these factors, there is, in our opinion, a reasonable doubt about the presence and the complicity of these three accused in the crime. Even if it be assumed for the sake of argument that they appeared at the scene of occurrence after Hub Lal had been attacked by Chait Ram, Mutkan and Sookham and after he had been felled to the ground, these three accused cannot be held responsible for the killing of Hub Lal vicariously by the application of Sections 34 and 149 of the IPC, nor can they be held guilty for the abetment of the offence of murder by application of S. 114 of the IPC. 12. S. 34 embodies principle of joint liability in the doing of a criminal act; and the essence of that liability is to be found in the existence of a common intention. Common intention pre-supposes prior concert. It requires a pre-arranged plan because before a man can be vicariously convicted for the criminal act of another, the act must have been done in furtherance of the common intention of them all. All that is necessary is to have direct proof of prior concert, or proof of circumstances which necessarily lead to that inference, or the incriminating facts must be incompatible with the innocence of the accused and incapable of explanation on any other reasonable hypothesis. The inference of common intention should never be reached unles it is a necessary inference deducible from the circumstances of the case. 13. The first essential element of S. 149, IPC is the commission of an offence by any member of an unlawful assembly, the second essential part is that the offence must be committed in prosecution of the common object of the unlawful assembly, or must be such as the members of that assembly knew to be likely to be committed in prosecution of the common object. 14. The leading feature of S. 34 is the element of participation in action whereas membership of the assembly at the time of committing of the offence is the important element in S. 149, IPC. 15. S. 114 of the IPC is only brought into operation when circumstances amounting to abetment of a particular crime have first been proved, and then the presence of the accused at the commission of that crime is proved in addition. 15. S. 114 of the IPC is only brought into operation when circumstances amounting to abetment of a particular crime have first been proved, and then the presence of the accused at the commission of that crime is proved in addition. The real test to see whether or not the section is applicable lies in its words; "who if absent would be liable to be punished as an abettor." These words clearly show that abetment to come under this section must be one which is prior to the commission of the offence and complete by itself and not an abetment which is done immediately before or at the time of the commission of the offence, for in the latter case the abettor would not have committed the abetment if he had not been present and would not, therefore, have been liable to punishment as an abettor. When a person is present and abets another to commit an offence then S. 114 of the IPC will not be applicable to the case. Active abetment at the time of the committing of the offence is covered by S. 109 of the IPC and S. 114 of the IPC is clearly intended for an abetment previous to the actual commission of the crime, any time, that is before the first steps have been taken to commit it. 16. Now, so far as Shyam Shankar, Kripa Ram and Shyam Singh Appellants are concerned, their presence at the time of the occurrence has been doubted by us. If these three Appellants go out of the picture then S. 149 of the IPC would not at all be applicable to the case. Furthermore S. 114 of the IPC would not be applicable to these three Appellants as there is no evidence whatsoever that they abetted the murder prior to the actual commission of the crime. Again, S. 34 of the IPC cannot be applied to these three Appellants to render them vicariously liable for the murder of Hub Lal, regard being had to the facts and circumstances of the case and the evidence on the record. On the same principle, S. 149 of the IPC would not also apply to the 4th Appellant Chait Ram. Chait Ram did of course participate in the crime along with Mutkan and Sookham, the two absconders. On the same principle, S. 149 of the IPC would not also apply to the 4th Appellant Chait Ram. Chait Ram did of course participate in the crime along with Mutkan and Sookham, the two absconders. The evidence satisfactorily proved that these three persons together went to Hub Lal over his field armed with lathi, spear and Gupti respectively. They harangued with Hub Lal and on Hub Lal's refusal to refrain from appearing as a witness for Sheo Prasad in the case brought by him u/s 440, IPC against these three persons, they simultaneously lodged an attack on Hub Lal. The medical evidence disclosed, as we have already observed, that Hub Lal received two lathi injuries in the nature of contusion, one on the right side of the face lower part and lower jaw region causing communited fractures of right upper and lower jaw bones and the other on the right side of neck lower part and right side of chest part, front, causing fracture of the first, second, third, fourth and fifth ribs at their anterior portion ; and he also received incised wound on the right side of top of head, underneath which there was a fissured fracture 3 1/2(sic)" long on the frontal and right parietal bones, and he further received a penetrating wound abdomen deep on the right side of the abdomenal wall. It was elicited by the cross examination of the eyewitnesses that Mutkan gave only one spear blow on the face and head and Sokham gave a piercing blow by his 'gupti' on the abdomen, and Chait Ram Appellant gave two lathi blows mentioned above and that on account of these injuries Hub Lall fell to to the ground. The other injury which was in the nature of a small contusion on the lower lip was obviously due to fall. We have already observed that the medical evidence was to the effect that the death of Hub Lal was due to shock and coma resulting in haemorrhage due to the fracture of the frontal and parietal bones of the head and penetrating injury into the liver. We have also noticed that the doctor stated that injuries Nos. 1 and 4 taken individually had been sufficient in the ordinary course of nature to cause death. 17. We have also noticed that the doctor stated that injuries Nos. 1 and 4 taken individually had been sufficient in the ordinary course of nature to cause death. 17. From the eye witness account of the matter, supported fully by the medical evidence, the murder of Hub Lal can legitimately be fastened on to Chait Ram Appellant with the aid of S. 34 of the IPC jointly with Mutkan and Sookham. Where, as in the present case, three persons armed respectively with spear, 'gupti' and lathi go together and meet another with the object of coercing him not to give evidence in a pending criminal case and when that other refuses to agree to their behests, and the situation gives rise to a simultaneous attack with the respective weapons held by the three on vital parts of the body and that other receives injuries over the head, abdomen, liver and ribs, five of his ribs get fractured as also the jaw bones on account of the violent attack of the lathi blows and the liver gets punctured the existence of a prearranged plan of a common intention to kill may reasonably be inferred. The act was done in furtherance of the common intention of all the three. The proof of the circumstances would necessarily lead to that inference. The incriminating facts are incompatible with the innocence of Chait Ram Appellant u/s 302/34 IPC and they are incapable of explanation on any other reasonable hypothesis. The inference of common intention in such a case has not been over reached and it is the only inference deducible from the circumstances of the case. 18. In support of his plea of innocence, Chait Ram did not produce any evidence on his behalf. A faint suggestion was made on his behalf that the murder was probably committed by Ram Sahai, the second son-in-law of the deceased because he felt disgruntled on account of the fact that the deceased got the name of the son of the other son-in-law Soney Lal (PW 1) recorded over 14 Bighas of land jointly with him Ram Sahai has got no son. The prosecution evidence established definitely that Ram Sahai was not at all present in this village on the day of occurrence. He came there after the news of the murder was conveyed to him in his own village. The prosecution evidence established definitely that Ram Sahai was not at all present in this village on the day of occurrence. He came there after the news of the murder was conveyed to him in his own village. Soney Lal witness emphatically repudiated the suggestion that it was Ram Sahai who killed Hub Lal. He said that Hub Lal was intending to get some landed property entered in the name of the wife of Ram Sahai also. If the suggestion held out by the defence on this point were acceptable, it would reduce itself to saying that inspite of the animus entertained by Ram Sahai against Soney Lal on account of the latter having been able to persuade the deceased to get the name of his son recorded over 14 Bighas land, Soney Lal has again been persuaded to let go the real culprit, namely, Ram Sahai and to rope in false ones. The suggestion of the defence is too fantastic to be true. 19. From what we have said above, it would necessarily follow that the conviction of Chait Ram must be maintained u/s s. 302/ 34, IPC but his conviction under the other sections set aside. It also follows that the convictions and sentences of Kripa Ram, Shyam Singh and Shiam Shanker should be set aside in respect of all the charges levelled against them. We are further of opinion that in the case of Chait Ram, it would sufficiently meet the ends of justice that instead of the death sentence awarded to him, a sentence of imprisonment for life is substituted. 20. Consequently, we allow the appeal of Kripa Ram, Shiam Singh and Shiam Shanker, set aside their convictions and sentences under the various charges levelled against them and we acquit them. We direct that they should be set at liberty at once unless wanted in any other matter. We also allow the appeal of Chait Ram to this extent that we set aside his conviction and sentences u/s s. 147 and 149 of the IPC but we maintain his conviction u/s 302 of the IPC with the aid of S. 34, IPC for the murder of Hub Lal and we reduce his sentence under that section from death to imprisonment for life. The reference for the confirmation of the death sentence of Chait Ram is rejected.