JUDGMENT 1. All these 3 appeals arise out of the judgment of the learned Addl. Sessions Judge, Dholpur, dated July 25, 1975 whereby all the 3 accused-appellants were convicted for charges under section 307, 307/34 I. P. C. and 3/27 Arms Act, 1959. They were however acquitted of the charge under section 344 I. P. C. because the person who was said to have been abducted by the alleged dacoits, turned hostile to the prosecution. 2. An informant brought a news to P.W.5 Sowaran Singh, S. H. O. Rajakhera that the gang of Bengali dacoit was seen with one boy abducted by this gang in the jungle near of Pureni. P.W.5 Sowaran Singh therefore went in search of the gang. The police force came to know that the gang had gone to the village Singholi. Therefore P. W. 5 Sowaran Singh with all the force went to the village Singholi and encircled it. A wireless message was also sent to the Superintendent of Police to send the R.A.C. force for their help. It is alleged that the dacoits having come to knew that they were encircled by the police force, opened fire at them. When police was not disturbed by the fires opened by the dacoits and the police also retaliated by opening fire from their side, it is said that the 3 dacoits along with the boy kidnapped, took shelter in the house of one' Bedaria Chamar in that village. The house was surrounded by the police force and the circle was narrowed down gradually. It is alleged that the dacoits again opened fire at the police party from inside the house but when challenge was thrown that they should either surrender or should meet the consequences, it is said that the dacoits surrendered before the police. P. W. 5 Sowaran Singh asked the dacoits to come with their arms one by one raising their hands upwards and it is said that first of all Panchoia came out of the house with a 12 bore gun in his hand followed by Ramsingh having a stain gun in his hands and then Bengali Teli came last of all with a 303 gun in his hands. All these arms were taken possession of by the police party. The police also collected from the spot 15 empty cartridges alleged to have been fired from the stain gun, 303 gun. All these arms were taken possession of by the police party. The police also collected from the spot 15 empty cartridges alleged to have been fired from the stain gun, 303 gun. Live cartridges were also seized from the possession of the accused persons. All of them were challenged for an offence under sections 307, 307/34, 344 I. P. C. and 3/27 of the Arms Act, 1959. It is really strange that the investigation was not properly conducted and the guns and empty cartridges were not sent for the examination of the Ballastic expert. However it is not denied that the 5 empty cartridges recovered from the spot were of stain-gun cartridges and other 10 fired from 303 gun. There was no cartridge which could be connected with the gun recovered from the possession of Panchoia. 3. The prosecution examined 5 eye-witnesses. P. W. 4 Omprakash was a boy who was kidnapped by the gang of dacoits and he also came out along with the police from the house of Bedaria Chamar. But at the trial he did not choose to oblige the prosecution by telling the true state of affairs and turned hostile. Therefore there remained only 4 witnesses, namely, P. W. 1 Anoop Singh, L. C., P. W. 2 Mohan Singh H. C., P. W. 3 Pratap Ram, Company Commander, and P. W. 5 Sowaran Singh S. H. O. 4. Pratap Ram P. W. 3 was one of those persons who came to the village Singholi on a wireless message received from P. W. 5 Sowaran Singh. But from testimony it appears that he did not see the occurrence and therefore he hardly helps the prosecution to fasten the guilt on the appellants. However, the statements' of P. W.l, P. W. 2 and P. W. 5 were believed by the trial court and the order of conviction was passed by the learned trial Judge. It is in these circumstances that this appeal has come before this Court. 5. Panchoia is represented by Mr. Goyal whereas the appellants Bengali and Ram Singh sent their appeals from jail. They are not represented by any counsel. In order to decide the appeals of the 3 appellants the statements of the eye-witnesses were read over by Mr. Goyal. 6. Mr. 5. Panchoia is represented by Mr. Goyal whereas the appellants Bengali and Ram Singh sent their appeals from jail. They are not represented by any counsel. In order to decide the appeals of the 3 appellants the statements of the eye-witnesses were read over by Mr. Goyal. 6. Mr. Goyal urged that the case of Panchoia stands on a different footing from those of Bengali and Ram Singh inasmuch as no empty cartridge was found on the spot which could be said to have been fired from the gun alleged to have been recovered from the possession of Pancholi and consequently when the prosecution has failed to establish that Panchoia in any manner shared common intention with the other 2 accused persons to open fire so as to kill the Police Party which was chasing them. In these circumstances it was vehemently urged by Mr. Goyal that the conviction of Panchoia cannot be sustained under section 307 read with section 34 I.P.C. As regard his conviction under section 3/27 Arms Act, 1959 it was argued that the gun which is said to have been seized from his possession, according to P. W. 5. Sowaran Singh, was not in order and, therefore, no case for an offence under section 3/27 of Arms Act was made out against him. 7. I have gone through the statements of the eye witness P. W. 1., P. W. 2 and P. W. 5. From a bare perusal of their testimony it is evident that Sowaran Singh P. W. 5 went in search of the dacoits about whom he had received information that they were hiding-themselves in a nearby jungle with a boy who had been kidnapped by them and another information came to him that the gang of Bengali Teli dacoit had reached the village Singholi. They chased him there and when the dacoits realised that they have been surrounded by the police they opened fire at the police. It is also in the evidence of these witnesses that the villagers of village Singholi were allowed to escape from the village lest they might get injuries in an encounter with the dacoits. They chased him there and when the dacoits realised that they have been surrounded by the police they opened fire at the police. It is also in the evidence of these witnesses that the villagers of village Singholi were allowed to escape from the village lest they might get injuries in an encounter with the dacoits. From the testimony of this witness as well as from the recovery of the empty cartridges this fact has been amply proved that the firing was opened by the dacoits and in reply the police also fired at them with a result that Bengali dacoit sustained gun-shot injury in his arm. It is also in the evidence of these witnesses that the dacoits on receiving fires from the police party took shelter in the chowk of Bedaria Chamar from where they ultimately surrendered at the call given by P. W. 5. S. H. O. 8. It is true that the prosecution has not proved that the 12 bore gun recovered' from the possession of Panchoia was in any manner used in that encounter but the trial court has convicted the accused persons for offence under section 307 with the aid of section 34 I. P. C. It is contended by Mr. Goyal that the ingredients of section 34 cannot be applied to the case of Panchoia as the prosecution has not produced any evidence to show the meeting of minds of the accused persons for opening fire at the police party with a view to kill them nor could any material could be placed on record to show that Panchoia was in any way was responsible for the fire to be opened by 'two accused persons nor has it been proved that the fire was opened with a view to kill the police party. In support of this contention reliance has been placed by the learned counsel on certain decided cases reported in Ramnath Madho Prasad and others v. State of Madhya Pradesh, AIR 1953 SC 420 (I) , Ramchander v. State of Rajasthan, 1970 RLW 118 , Banwari and another v. State of Uttar Pradesh, AIR 1962 SC 1198 Malkhan Singh and another v. State of Uttar Pradesh, AIR 1975 SC 12 . I have gone through these judgements and I can say that the principle laid down therein are of no avail to appellant Panchoia as the circumstance of this case amply prove that all-these dacoits were acting with one mind to save themselves by opening fire at the police party. It is further urged that it is in the evidence of P.W. 5 Sowaran Singh that the gun recovered from Panchoia, accused was not serviceable and therefore, if fire was not made from that gun which was recovered from the possession of Panchoia, it cannot be said that he did share common intention with the other two dacoits who had hidden themselves in the house of Bedaria Chamar. 9. It is in the evidence of the prosecution witnesses that the fires were aimed at the Police party and the bullets went above the head of police force. Therefore, it cannot be said that the fire was made only to scare the police and not to kill them. If Panchoia did not use his gun because it was defective one, it cannot be said that he was not a party to the fire opened by the dacoits at the police party. It is difficult in this case for the prosecution to prove the preconcert or meeting of the mind of the accused persons hut circumstances or the conduct of the accused persons can safely lead us to this conclusion that the accused persons acted with common intention to kill the police party. In this present case all the 3 accused persons were found hiding themselves in a house of a chamar from where the guns were freely fired at the police party and when a challenge was thrown either to meet the dire consequence or to surrender them all the 3 persons simultaneously surrendered themselves to the police and came out one by one with their hands upwards holding their arms in their possession. This conduct of Panchoia that he come first with .12 bore gun in his hands raising his hands upwards shows that he was as much a. member of the gang as any one of the other two who had fired their guns towards the police. In these circumstance it is difficult to accept the contention of Mr. This conduct of Panchoia that he come first with .12 bore gun in his hands raising his hands upwards shows that he was as much a. member of the gang as any one of the other two who had fired their guns towards the police. In these circumstance it is difficult to accept the contention of Mr. Goyal that Panchoia did not share the common intention with other two persons who had not actually opened fire at police party. 10. As regards Bangali and Ramsingh, their guns were actually fired and the fire was made in such a manner that if the bullets had not gone a bit high, they would have killed the members of the police force. In these circumstances the intention of the accused party to kill the police party was quite obvious and, therefore, their conviction for an offence under section 307/34 cannot be disturbed. 11. As regards the conviction of Panchola under section 3/27 of the Arms Act, it is apparent that the prosecution has not proved that the gun which he was carrying could be used for illegal purpose as in the opinion of P.W. 5 S.H.O. himself it was not a serviceable gun and in such circumstances his conviction under section 3/27 cannot be maintained. 12. As regards the conviction of Bengali and Ramsingh for the said offence i.e. 3/27 Arms Act, they have not pleaded that they were not in possession of the arms recovered from them and that they possessed the licence for keeping them and therefore, they have been rightly convicted for the offence u/s 3/27 of the Arms Act. 13. The result is that the appeals of Bengali (Jail appeal No. 688/75) and Ram-Singh (Jail appeal No. 608/75) are dismissed. Appeal of Panchola(appeal No. 501/75) is partly allowed. His conviction under section 307/34 is maintained but he is acquitted of the charge u/s 3/37 of the Arms Act sentenced awarded to him for the offence u/s 3/27 Arms Act is set aside. 14. Mr. Goyal prays for leave to appeal to Supreme court under article 134 of the Constitution of India on behalf of Panchola. It is not a fit case for the grant of leave. Leave is refused. *******