Judgment N.N.Sharma, J. 1. Both these appeals are being disposed of by this common judgment as these arise out of the same order dated 21-10-1976 recorded by Sri S. K. Verma, learned II Additional Sessions Judge, Shahjahanpur in Sessions Trial No. 298 of 1975. All the appellants, in both the appeals, were convicted under Section 302 read with Section 34 of Indian Penal Code ; each appellant was sentenced to imprisonment for life. 2. All the appellants are resident of down Jalalabad, Police Station Jalalabad, district Shahjahanpur. The occurrence was alleged to have taken place on 2-1-1975 at about 11.15 P. M. in Khera street Jalalabad town, district Shahjahanpur ; one Sheo Krishna alias Kally, aged about 15 years, son of Roop Ram informant (PW 1), lost his life during this occurrence on the pavement in front of his house towards north-west at a distance of about ten steps, as shown in site plan Ext. Ka-11. 3. Ram Naresh alias Toota appellant is the next door neighbour of informant. However, relations amongst RAM Naresh and informant and his sons were strained. It was about a year prior to occurrence that RAM Naresh bad beaten RAM Krishna, elder brother of deceased and had snatched away a watch ; RAM Krishna lodged a. report about that incident. 4. Ram Naresh had an evil eye on deceased and made abortive attempts to satisfy his homosexual lust; Sheo Krishna complained to his father about this lusty behaviour of RAM Naresh ; Roop RAM did not lodge any report to avoid ignominy but advised his son to keep away from RAM Naresh. However, RAM Naresh was on the look out for an opportunity. It was on 2-1-1975 when Sheo Krishna bad gone to see dramatic performance near his house in the compound of Paras Ram temple; appellants had also gone there; when Sheo Krishna made way for his house at about 11.00 P. M, he was followed by the appellants; they surrounded the victim near his house on the pavement and started dragging him towards the grove. Sheo Krishna resisted the Same and raised alarm which attracted to the scene Roop Ram (PW 1), Sheo Ram (PW 5), Jagannath (PW 6) and Murli. 5. In torch light, flashed by witnesses, it was seen that Ram Naresh was dealing knife stabs on Sheo Krishna; despite the alarm raised by witnesses. Sheo Krishna resisted the Same and raised alarm which attracted to the scene Roop Ram (PW 1), Sheo Ram (PW 5), Jagannath (PW 6) and Murli. 5. In torch light, flashed by witnesses, it was seen that Ram Naresh was dealing knife stabs on Sheo Krishna; despite the alarm raised by witnesses. Ram Naresh went on stabbing Sheo Krishna. It was on the approach of witnesses that accused ran away towards north. Sheo Krisana, whose life was ebbing fast, was carried inside his house by Roop Ram; Sheo Krishna succumbed to his injuries soon-after. 6. Written report, Ext.Ka-1, was scribed by Roop Ram and made over at police station in the same night at 0.10 A. M. Distance of police station from the scene of occurrence was about a furlong ; an the basis of written report, FIR Ext.Ka- 2 was scribed by Head Constable Lal Bux Slngh (PW 2) who registered the case in general diary vide Ext. Ka-3. Sri Rizwan Haider (PW 9) took up investigation of the case ; he reached the scene of occurrence along with Sub Inspectors Vikram Lal (PW 8) and R, K. Rajvanshi, witnesses Roop Ram, Murli, Sheo Ram, Ram Naresh and Jagannath were interrogated at 1.15 A. M. Spot Was Inspected and site plan, Ext Ka-11, was prepared ; inquest memo Ext. Ka-6, diagram Ext. Ka-7 and despatch note Ext.Ka-8 were prepared; sample of blood-stained and unstained earth was seized from the pavement in presence of witnesses vide: Ext.Ka-9 ; torches of Roop Ram, Murli and Ram Naresh were examined by Sub Inspector Vikram Lal (PW 8) and found in working order and given in their custody vide entrustment memo Ext. Ka-10. On completion of investigation, appellants were sent up. 7. Appellants denied their participation in the occurrence and alleged their implication to ill-will. Appellant Ram Naresh stated that his house was adjacent to the house of Roop Ram. Roop Ram wanted to construct a drain on the land of Ram Naresh's father ; he was prevented from doing so and so he was falsely implicated in this case; Appellant Chhotey Lal alleged that local police was displeased with him find so he was involved in the case ; Ravindra Babu alleged that Roop Ram had beaten his brother and since then there was bad blood between him and Roop Ram and so he was falsely implicated in the case. Ram Naresh had also altercation with Sheo Ram witness who got him involved in this case. 8. Out of the nine witnesses examined by prosecution in this case, ocular testimony consisted of Roop Rata (PW 1), Sheo Ram (PW 5) and Jagannath (PW 6) who supported the prosecution version as given above. Ram Prasad alias Chhutkarma was examined in defence to falsify the statement of Jagannath (PW 6) who claimed to have stayed at his house on that fateful night. He further testified that assailants were unknown. 9. Learned trial Judge believed the PWs and recorded the conviction and sentences aforesaid. 10. It appears that although specific charge was drawn under Section 302 of Indian Penal Code against Ram Naresh alias Toota yet his conviction was simply recorded under Section 307 read with Section 34 of Indian Penal Code. However, he was not acquitted of that charge under Section 302 of Indian Penal Code simpliclter. We have heard Sri P. N. Misra, learned Advocate for appellants and Sri Jitendra Kumar, learned Advocate for the State. 11. Learned counsel for appellants took us through the testimony of all the three eye witnesses aforesaid. He, criticised this testimony on the ground that there was no dramatic performance within the compound of Paras Ram temple on that fateful night. Roop Ram (PW 1) in para 10 of his deposition alleged that the dramatic performance in that temple took place throughout the night, this performance was going on for 6 or 7 nights prior to occurrence; his son used to witness this performance daily ; none else arrived from the gathering to witness the occurrence although 500 or 600 persons used to watch the same. 12. Sheo Ram (PW 5) testified that Rajas Leela was witnessed by many persons. This performance went on throughout the night. SHEO Ram claimed to have seen the appellants during the Raas Leela and alleged that Raas Leela was going on for 8 or 10 days prior to occurrence. The actors were from Mathura and it related to the life of Lord Krishna. Jagannath (PW 6) testified that it was Ram Leela but again added that it was not Ram Leela which is usually played in the month of Kwanr. 13. The actors were from Mathura and it related to the life of Lord Krishna. Jagannath (PW 6) testified that it was Ram Leela but again added that it was not Ram Leela which is usually played in the month of Kwanr. 13. Appellants in their statements denied that any dramatic performance used to take place in the temple of Paras Ram during those nights ; however Ram Prasad alias Chhutkannu (DW 1) himself conceded that this performance was going on at the temple of Paras Ram at the time of occurrence; it used to commence from 8.00 P. M. and lasted till mid-night. Thus, in the teeth of this admission by Ram Prasad alias Chhutkannu (DW 1), it does not lie in the mouth of appellants to urge that such dramatic performance did not take place in Paras Ram temple at the time of occurrence. The mere fact that PWs 5 and 6 made slight contradictions about the nature of performance, i. e. whether it was "Ram Leela" or Krishna Leela ; is not sufficient to justify the inference that the allegation of dramatic performance was sheer concoction. 14. Sri P. N. Misra, learned Advocate for appellants, further criticised the statements of PWs on the ground that they were inter related. Roop Ram (PW 1) conceded that earlier his daughter-in-law lodged a report under Section 354 of Indian Penal Code against him for Indecent behaviour and so he was a man of loose morals and unreliable. Roop Ram was also slightly hard of hearing and so could not have timely reached the scene of occurrence to witness the fatal assault on his son at that late hour of night. PW 6 Jagannath was a chance witness, resident of village Saraj Tasdha, Police Station Mirzapur and alleged to have stayed in Jalalabad town on that night at the house of DW 1 who has denied it. He had no occasion to have known the names of appellants also. DW 1 has admitted the time and place of occurrence as testified by PWs. We have carefully perused the entire statements. Even apart from the testimony of Jagannath (PW 6) there are statements of Roop Ram (PW 1) and Sheo Ram (PW 5) who testified about the: fatal assault. DW 1 has admitted the time and place of occurrence as testified by PWs. We have carefully perused the entire statements. Even apart from the testimony of Jagannath (PW 6) there are statements of Roop Ram (PW 1) and Sheo Ram (PW 5) who testified about the: fatal assault. The mere fact that Roop Ram was involved in a case under Section 354 of Indian Penal Code by his daughter-in-law, is not sufficient for rejection of his testimony. Roop Ram frankly conceded the lodging of that report by his daughter-in-law and added that he had beaten his daughter-in-law about six months prjor to his deposition so she lodged the report against him. Moreover, his sworn testimony against the alleged assassin of his son cannot be discarded on the ground that there could have been any lapse from virtue on his part. He could not have spared the real assailants and involved the appellants falsely in his prompt report. 15. A mere look at autopsy Ext. Ka-5 proved by Dr. S. P. Srivastava (PW 1) who held post-mortem examination on dead body of deceased on 3-1-1975 at 4.30 P. M. would go to disclose that as many as nine incised wounds were detected on the person of victim; doctor opined that all the injuries were caused by sharp edged wapon like knife. Injuries on the chest were sufficient in the ordinary course of nature to cause death; obviously all the injuries could not have been inflicted by a single assailant in a hit and run affair. Occurrence must have lasted for some time. Scene of occurrence lay infront of the main-door of informant and was well-lilt as testified by him in para 10 of his deposition. In his deposition, he further testified that he left the window of his main-door open; he was awaiting the arrival of his son at that odd chilly hours of night. Under such circumstances, it is difficult to discard his testimony that he heard the out cry or his son about his being dragged towards the grove:; his statement on this point is also corroborated by PW 5 and 6 and the allegations made by him in his report. He further testified about the flashing of the torches by him and other witnesses Murli and Ram Naresh which facilitated the recognition of the assailants. He further testified about the flashing of the torches by him and other witnesses Murli and Ram Naresh which facilitated the recognition of the assailants. Obviously, informant could not have gone in deep slumber leaving the window of the main-door open at that odd hour of night. Such course was fraught with gravel risk as any thief etc. might have entered his house through that window his paternal instinct must have kept him awake and having regard to the proximity of the scene of occurrence and the anxiety for his son which kept him vigilant; the scream of his son could have easily caught his audition and he must have been quick in reaching the scene of occurrence. So we do hot find any infirmity about the appraisal of the testimony of these witnesses about the complicity of appellants in this crime. 16. Learned counsel for appellants further pointed out that Chhotey Lal, Ravindra and Rameshwar are entitled to the benefit of reasonable doubt atleast to far as the application of Section 34 of Indian Penal Code was concerned. In his written report, no role was assigned to them by Informant. It was at the stage of evidence that Sheo Ram alleged that they were armed with lathis and had blocked the passage of his son whom they had surrounded. It smackes of embellishment. Section 34 of Indian Penal Code extends criminal liability of an act to other persons than the actual offender on the basis of common intention. It embodies the principle of joint liability being the existence of a common intention. Participation in the commission of offence in furtherance of the common intention invited its application. In order to constitute common intention, it is necessary to be established that the intention of each one of the assailants, be known to the rest of them and be shared by them. Participation in the commission of offence in furtherance of the common intention invited its application. In order to constitute common intention, it is necessary to be established that the intention of each one of the assailants, be known to the rest of them and be shared by them. In Gajjan Singh v. State of punjab, AIR 1976 SC 2069 , charges were drawn under Sections 34, 149 and 362 of Indian Penal Code against eight accused for committing murder in prosecution of their common object-Accused B was convicted under Section 302 for murder of A by a single rifle shot and accused G was convicted under Section 307 for attempting to murder D by a single rifle shot and also convicted under Section 302/34 for murder of A, all other accused were acquitted, conviction of accused G under Section 302 read with Section 34 of Indian Penal Code was held unsustainable with the observations: "The mere fact that B and G came together armed with rifles was not sufficient to indicate that they had come having shared a common intention to commit the murder. On the evidence and the facts found the inference of G's sharing the common intention with B for the murder of A is not possible to be drawn. It may be that he tad such common intention. But it is difficult to fill the gap between "may" and "must" and to say that G must have shared the common intention for causing the death of A. Therefore, the High Court had committed an error of law in sustaining the conviction of G under Section 302/34 for the murder of A notwithstanding the missing link in the evidence to supply facts to justify the said conviction." 17. In Ahmad Husain alias Munney v. State, 1972 All. CrJ 36, the victim was chased by three appellants, he was stabbed by the fourth assailant with a knife, it was held that the mere fact of chasing or of catching the deceased by three appellants could not lead to irresistible conclusion that they had developed a common intention with the fourth accused for assassinating the victim. Accordingly, except the actual assailant, others were held as not guilty. 18. It has been pointed out above than in the written report submitted by informant at police station, the role assigned to Chhotey Lal, Ravindra and Rameshwar was that they were standing. Accordingly, except the actual assailant, others were held as not guilty. 18. It has been pointed out above than in the written report submitted by informant at police station, the role assigned to Chhotey Lal, Ravindra and Rameshwar was that they were standing. No further overt act was ascribed to them. IT was at the stage of evidence that Roop Ram (PW 1) alleged that Chhotey Lal etc. had surrounded his son; it was also at the stage of evidence before the Sessions Court that lathis were also assigned to them although none of them was alleged to have dealt any lathi blow on victim. Under such circumstances, it is not possible to hold that they shared common intention of Ram Naresh to stab victim Sheo Krishna alias Kallu to death. So Criminal Appeal No. 2489 of 1976, preferred by Chhotey Lal, Ravindra and Rameshwar, is allowed and their conviction and sentence under Section 302 read with Section 34 of Indian- Penal Code are set aside. They need not surrender to their ball bonis which are discharged. 19. As regards Criminal Appeal No. 2480 of 1976 preferred by Ram Naresh alias Toota, his conviction is altered to section 302 of Indian Penal Code simpliciter and his sentence to life imprisonment is affirmed. With this modification, this appeal is dismissed. The impugned order is modified accordingly. 20. Ram Naresh alias Toota is on bail. Let him surrender to his bonds forthwith to serve out the sentence awarded to him. Take him into custody at once. Ordered accordingly.