A. S. TRIPATHI, J. ( 1 ) THESE two appeals arise out of the same judgment and order dated 3 1. 10. 1979 and are Connected with each other. They are being disposed of by a common judgment. ( 2 ) THE two appeals have been preferred against judgment and order dated 31. 10. 1979 passed by Sri P. C. Jam, the then 1st Addi. Sessions Judge, Shahjahanpur, whereby appellant. Prempal Singh was convicted under Section 302, I. P. C. and was sentenced to imprisonment for life. Appellant, Rajveer Singh was convicted under Section 302 read with 109, I. P. C. and has also been sentenced to undergo imprisonment for life. Appellant, Rajveer Singh was further sentenced to undergo two years rigorous imprisonment under section 224, I. P. C. The appellants, Brijpal Singh, Deshraj Singh, Amar Singh and Phool Singh were convicted under section 225, I. P. C. and were sentenced to undergo 3-1/2 years rigorous imprisonment. ( 3 ) THE complainant and accused-appellants belong to same village Kadrabad police station Paraur district Shahjahanpur. The appellants, Brijpal Singh, Deshraj Singh and Amar Singh are real brothers. Appellant, Rajveer Singh and Phool Singh are also real brothers. Appellant, Prempal Singh is the son of appellant, Brijpal Singh. Reporter, Suresh Chandra is nephew of deceased, Shanti Swamp. The house of deceased and the appellants are in the same village at a distanceofl5 to 16 paces. The allegations made in the F. I. R. , Ex. Ka 1, are that Shanti Swamp, deceased, was uncle of the reporter, Suresh Chandra. It is alleged that about 1-1/2 years before this occurrence, appellant Prempal Singh had given a knife blow to Shanti Swamp for which a case was pending. About 15 and 16 days earlier to this incident some body had knocked the door of Rajpal, Bhangi in the same village at odd hours in the night. The wife of Rajpal raised alarm whereupon Shanti Swamp climbed on the roof and fired his gun. Thereupon Brijpal Singh had some exchange of words with Shanti Swamp. On account of these previous incidents there was enmity between the parties. ( 4 ) ON 23. 9,1978 at about 4 p. m. the reporter, Suresh Chandra was sitting on the shop of Kanchan in the same village. for purchasing some articles. The shop-keeper was weighing manilre for Bhikam and Don, farmers. On account of these previous incidents there was enmity between the parties. ( 4 ) ON 23. 9,1978 at about 4 p. m. the reporter, Suresh Chandra was sitting on the shop of Kanchan in the same village. for purchasing some articles. The shop-keeper was weighing manilre for Bhikam and Don, farmers. Outside the shop below the hut Shanti Swamp, deceased, one Pooran, son of Lalloo and Sachidanand of village Daheria were sitting talking each other. At that time appellants, Prempal and Rajveer Singh came there from western side and reached near the door of Lakhan. Then Rajveer Singh exhorted Prempal Singh to kill Shanti Swamp. Shanti Swamp got up from the cot and tried to run, but in the meantime appellant, Prempal started firing from his Country made pistol at Shanti Swamp. Shanti Swamp ran towards south in the lane and appellants, Prempal Singh and Rajveer Singh chased him. The reporter, Suresh Chandra, raised alarm and ran towards his uncle, Shanti Swamp. P. W. 4, Fauzdar and Sambal were consuming tobacco nearby and they chased the appellants. When Shanti Swamp reached near the house of Sri Krishna, he fell down. Shri Krishna came out and gave a lathi blow to Rajveer and, Fauzdar caught hold bf the appellant, Rajveer Singh. Prempal Singh managed to run away. It is further alleged that hearing the news of arrest of Rajveer Singh on the spot remaining appellants, Brijpal Singh armed with a revolver, Deshraj Singh and Phool Singh armed with guns and Amar Singh armed with spear came on the spot and challenged for the release of Rajveer Singh and threatened otherwise to fire upon the witnesses. Thereupon the witnesses let loose Rajveer Singh, whereupon Rajveer Singh left his lathi there and ran away. Shanti Swamp on account of injury fell down and died. ( 5 ) A written report was lodged at police station Paraur at 4. 40 P. M. same evening. The case was registered under sections 302, 224 and 225, I. P. C. The investigation of the case was taken up by Sri Roop Singh Verma, Station Officer, P. W. 5. He reached the spot at 5. 45 p. m. same evening. The dead body of Shanti Swamp was lying in front of the house of Sri Krishna. He performed the inquest and prepared panchayatnama, Ex. Ka. 3. The dead body was sealed and sent to mortuary. He reached the spot at 5. 45 p. m. same evening. The dead body of Shanti Swamp was lying in front of the house of Sri Krishna. He performed the inquest and prepared panchayatnama, Ex. Ka. 3. The dead body was sealed and sent to mortuary. The witnesses, Suresh Chandra and others were interrogated. The Investigating Officer inspected the spot and prepared site-plan, Ex. Ka 6. Two pellets were recovered from the wall of the shop of Kanchan. One Tikli, Ex. 3, was recovered from Chabutra. A wad, Ex. 4, was also recovered from the spot and memo, Ex. Ka 2, was prepared. The accused had absconded. Lathi of. Rajveer Singh was handed over to the Investigation Officer by P. W. 4, Fauzdar. After completing the investigation, chargesheet Ex. Ka. 10, was submitted on 30. 10. 1978. ( 6 ) THE postmortem examination was conducted by Dr. A. P. Misra, P. W. 3 on 25. 9. 1978 at 3 P. M. and following ante-mortem injuries were found on the body of deceased, Shanti Swamp, vide postmortem report, Ex. Ka 2:- (i) Gun shot entry wound. 75 cm x. 5 cm x thoracic cavity deep, inverted margins, direction medially backwards, 1/2 cm, laterally to left nipple on the chest, passing through left auricle on the heart, lacerating right lung and was recovered at the base of 7th thoracic rib. (ii) Gun shot wound of entry. 75 cm x. 5 cm x 2. 5 cm medial to right nipple on the chest. Direction laterally backwards passing through the direction of 5th rib and recovered at the base of 5th rib. (iii) Gun shot wound. 75 cm x. 5 cm x 3 cm. above ante-mortem injury No. 2 on right side of the chest, inverted margins, directions laterally upwards and backwards lacerating bronchial vessels and recovered at the lateral margins of scapula. On internal examination membrances of brain were found pale. Right side pleura was lacerated, blood was present in pleural cavity. Right lung pericardium and heart were lacerated. Bronchial vessels were also lacerated. Stomach contained 250 grams of semi -digested food. Small intestines were empty and pale. Large intestine contained faecal matter. Liver was found to be pale. In the opinion of the Doctor, death was caused due to shock and haemorrhage as a result of gun shot injuries. Three pellets were recovered from the body of the deceased. Stomach contained 250 grams of semi -digested food. Small intestines were empty and pale. Large intestine contained faecal matter. Liver was found to be pale. In the opinion of the Doctor, death was caused due to shock and haemorrhage as a result of gun shot injuries. Three pellets were recovered from the body of the deceased. ( 7 ) THE appellant, Prempal Singh was charged under section 302, I. P. C. (simpliciter ). Appellant Rajveer Singh was charged under sections 302 read with section 109, I. P. C. Appellant, Rajveer Singh was also charged under section 224, I. P. C. The remaining appellants, Brijpal Singh, Deshraj Singh and Phool Singh were charged under section 225 read with section 34, I. P. C. The appellants have pleaded not guilty. ( 8 ) APPELLANT, Prempal Singh stated that he was implicated falsely due to party-bandi. Appellant, Rajveer Singh stated u/s. 313, Cr. P. C. that he was falsely implicated on account of enmity. Appellant, Brijpal Singh stated that he had contested the election of Gram Pradhan against Chhotey Lal, who is a relation of reporter, Suresh. Chandra and on that account he was implicated. Similar plea was taken by the appellant, Deshraj Singh and Amar Singh. Appellant, Phool Singh stated that there was a dispute regarding sale of land with P. W. 4 Fauzdar and he was implicated on that account. The appellants also asserted that deceased, Shanti Swamp was a man of bad character and he might have been killed else where by unknown persons. ( 9 ) THE prosecution in support of its case examined six witnesses. P. W. 1 Suresh Chandra P. W. 2 Sachidanand and P. W. 4 Fatlzdar are the witnesses of fact. P. W. 3 Dr. A. P. Misra had conducted postmortem examination of the dead body of deceased. P. W. 5, Roop Singh Verma, was the Investigating Officer and submitted chargesheet. P. W. 6 Mahendra Nath Sharma Proved the chikreport, Ex. Ka 1 and G. D. entries, Ex. Ka 11. The appellants did not adduce any evidence in defence. After assessing the evidence on record the trial court had convicted and sentenced the appellants as mentioned above. Aggrieved by the judgment and order of the trial court present appeal has been preferred by the appellants. ( 10 ) WE have heard learned Counsel for the parties and perused the record carefully. After assessing the evidence on record the trial court had convicted and sentenced the appellants as mentioned above. Aggrieved by the judgment and order of the trial court present appeal has been preferred by the appellants. ( 10 ) WE have heard learned Counsel for the parties and perused the record carefully. The prosecution story we find that runs in two parts. The first part is that at the time of occurrence two appellants, Prempal Singh and Rajveer Singh appeared on the scene and on account of previous enmity Rajveer Singh exhorted Prempal Singh whereupon Prempal Singh fired shots by his pistol upon Shanti Swarup. Shanti Swamp got up from the cot and tried to run away but the shots hit him and he ran towards east and south in the lane. The two appellants chased him and when he reached near the house of Shri Krishna he fell down and died there. It is alleged that Shri Krishna gave a lathi blow to Rajveer Singh and Fauzdar, P. W. 4, caught hold of Rajveer Singh. The second part of the story is that when Rajveer Singh was caught by the witnesses the, remaining appellants appeared on the scene armed with deadly weapons like gun etc. and they rescued Rajveer Singh who threw his lathi there and ran away. Now we proceed to examine the prosecution story as set out in the F. I. R. ( 11 ) REGARDING the first part of the story there is specific evidence of eye witnesses supported by medical evidence and recovery of pellets and wads etc. from the wall of the shop of Kanchan that occurrence took place at the place as alleged by the prosecution. There are three eye witnesses, who have categorically deposed about the time, place and marmer of occurrence in which the deceased, Shanti Swamp was killed. P. W. 1, Suresh Chandra is the reporter. He is nephew of deceased, Shanti Swamp. According to him at the time of occurrence he had gone at the shop of Kanchan to purchase Bidi and match-box. His house is at a distance of 150 paces from the shop of Kanchan. There is a chabutara in front of the shop of Kanchan covered by a Chhappar. Shanti Swamp was sitting on a cot on that Chabutara. He was talking to one Pooran. The shopkeeper, Kanchan was selling articles. His house is at a distance of 150 paces from the shop of Kanchan. There is a chabutara in front of the shop of Kanchan covered by a Chhappar. Shanti Swamp was sitting on a cot on that Chabutara. He was talking to one Pooran. The shopkeeper, Kanchan was selling articles. At that time two appellants, Prempal Singh and Rajveer Singh appeared from the lane. Rajveer Singh was armed with lathi and Prempal Singh was armed with a pistol. Rajveer Singh exhorted that finish Shanti Swarup, whereupon Prempal fired shots at Shanti Swarup. Shanti Swamp got up and tried to save himself, but in the meantime the shots hit him and he fell down after running about 30 paces in front of the house of Shri Krishna. The witnesses also raised alarms and chased the appellants. Prempal Singh managed to escape earlier. Rajveer Singh also managed to escape, it is alleged, on the intervention of the remaining appellants. That part of the story will be dealt with later on. Weare dealing with the first part of the occurrence and the marmer in which Shanti Swarup was killed. P. W. 2, Sachidanand, is also a witness affect. He narrated the same story as deposed by P. W. 1, Suresh Chandra. Sachidanand is the resident of neighbouring village. At the time of occurrence he was going to his village from Paraur. He stated that his mother was a teacher at Paraur. He belongs to a neighbouring village, Dahelia. Village, Kadra, where the occurrence took-place is in between and regular passage passes through that village from Paraur to Dahelia. At the time of occurrence he was coming back from Paraur and reached near the shop of Kanchan. When he reached near the shop of Kanchan, he was asked by one Pooran to sit there and smoke. After 3 - 4 minutes of his sitting this occurrence took-place. He denied the suggestion that he was in any way related to the deceased. He also firmly deposed that this was a regular passage for him to go to Paraur where his mother was teaching and coming back to his village almost everyday. In this way his presence on the spot was natural in normal course. He stood the test of cross examination. He clearly stated that he knows many people of village Kadrabad for more than ten years. In this way his presence on the spot was natural in normal course. He stood the test of cross examination. He clearly stated that he knows many people of village Kadrabad for more than ten years. He also deposed that he was not on visiting terms to either accused or the witnesses. He could know many names in the village as they were called out by several persons whenever he used to visit the village. He named other persons of village whom he knew when he used to frequently pass through this village on his way to Paraur and back to his neighbouring village. In this way he could not be said to be a chance witness and in the circumstances is fully reliable. P. W. 4, Fauzdar, is another witness of fact. He also supported the prosecution story so far as the killing of Shanti Swamp was concerned. He deposed that on the exhortation of Rajveer Singh, Prempal Singh had fired upon Shanti Swamp at the time of occurrence. Shanti Swarup tried to run away but the shots hit him and he fell down after running about thirty paces in the lane in front of the house of Shri Krishna. He denied the suggestion that he was in any way partisan towards complainant. He also denied the suggestion that he keeps pigs and some of them were detained by the appellant, Phool Singh and he was deposing on that account Nothing has come on record to suggest that at any point of time pigs of this witness were detained by the appellant, Phool Singh and no evidence to that effect he has been adduced. Also there is nothing on record to suggest that he was inimical to the appellants. Further more he admitted that one criminal case in which he was acquitted, deceased, Shanti Swarup had been his surety. But in the next breach he stated that appellant, Brijpal Singh had also stood his surety in the same case. The appellants have filed copy of the surety bond, which is Ex. Kha 2 on record. This fact by itself does not discredit the veracity of this witness. But in the next breach he stated that appellant, Brijpal Singh had also stood his surety in the same case. The appellants have filed copy of the surety bond, which is Ex. Kha 2 on record. This fact by itself does not discredit the veracity of this witness. ( 12 ) MUCH emphasis was laid by the learned Counsel for the appellants that the main witness, Shri Krishna, was not produced, who was alleged to have given a lathi blow to Rajveer Singh when he was said to have been arrested and then rescued by the remaining appellants. Non-production of Shri Krishna does not discredit the prosecution case so far as the killing of Shanti Swarup by. Prempal Singh on the exhortation of Rajveer Singh is concerned. The suggestion of the defence that appellants have been falsely implicated on account of some enmity due to the contest of election of Pradhan. This suggestion is denied by the prosecution witnesses that any contest for the election of Pradhan was between the accused side and the complainant side which could be a cause for false implication. There is nothing on record to support the suggestion. Also there is no evidence to support the suggestion that accused, Phool Singh, took any money from the reporter, Suresh Chandra, for prospective sale of certain land and then transferred the land to other person. ( 13 ) THE postmortem report and the statement of Dr. A. P. Misra, P. W. 3 clearly established that three gun shot wounds were caused on the body of Shanti Swarup and he died, as a result of those injuries, Dr. A. P. Misra deposed that the death of Shanti Swarup must have occurred at the time as alleged by the prosecution. However, it was suggested to the Doctor that after receiving this injury Shanti Swarup could not have managed to run for more than ten to fifteen steps. Dr. A. P. Misra admitted in his cross examination that after receiving such injury the injured person could run ten to fifteen steps. According to him after the shots were fired Shanti Swarup must have died after three-four minutes. According to the Doctor after receiving such injuries the injured person could not run for a considerable distance. Dr. A. P. Misra admitted in his cross examination that after receiving such injury the injured person could run ten to fifteen steps. According to him after the shots were fired Shanti Swarup must have died after three-four minutes. According to the Doctor after receiving such injuries the injured person could not run for a considerable distance. ( 14 ) THE Investigation Officer, Roop Singh Verma, P. W. 5, proved the site-plan in which he mentioned that the dead body of the deceased was found in front of the house of Shri Krishna and the place of occurrence is about 200 paces from the shop of Kanchan. The question was put to the Investigating Officer, P. W. 5, Roop Singh Verma, that he had shown that distance as 200 steps on his own assessment without pointing out by any witness. However, the Investigating Officer had admitted that he had recovered pellets and tickli from the walls of the shop of Kanchan. The siteplan, Ex. 6, is on record. The prosecution witnesses have stated on oath that this distance is only thirty paces from the shop of Kanchan where the dead body of Shanti Swarup was lying when the. Investigating Officer arrived at the scene for preparing site-plan etc. The site-plan shows that there was lane in between the houses where the dead body was recovered. There is a turning at the comer of Chaupal of Mukut. The Investigating Officer has mentioned this distance as 200 steps on his own assessment and he had not measured the same. ( 15 ) LEARNED Counsel for the appellants laid emphasis on the point that after receiving such injuries Shanti Swill-up could not have run 200 paces and, therefore, the story of the prosecution may be discarded as the dead body was found 200 paces away from the place of occurrence. ( 16 ) WE have considered this point with caution and we find that the statements given by the prosecution witnesses on oath that it was only thirty steps from the place of occurrence where the dead body was recovered is more reliable than the distance given by the Investigating Officer in the site-plan only on the basis of guess without measuring the distance. It is also noteworthy that Shanti Swarup on seeing the assailants got up from the cot and tried to run away when in the meantime the shots were fired at him. He had already got up from the cot and was in the stage of running when the shots were fired. In this way it was quite likely that he was already set for running when he received injuries. In such a circumstance we are of the opinion that in all probabilities in the wake of fear and with positive consciousness of trying to escape he could have run for such a distance of 30 paces from the place of occurrence and then he had fallen down and collapsed. Therefore, the place of occurrence in that way also fixed and cannot be made doubtful simply on the argument that Shanti Swarup could not have managed to run after receiving such injuries even few steps. ( 17 ) PROMPT F. I. R. was lodged at 4. 40 p. m. same evening at police station Paraur. It was at a distance of three miles from the place of occurrence. The Investigating Officer reached the spot atonce after lodging the F. I. R. From the witnesses of fact, medical evidence, Panchayatanizma and the statements of Investigating Officer it is established, beyond all reasonable d9ubt, the time, place and marmer of occurrence as alleged by the prosecution as regards the first part of this occurrence is concerned. ( 18 ) P. W. 1, Suresh Chandra, has clearly stated that about 1-1/2 years back Prempal Singh had given a knife blow to Shanti Swarup on account of some scuffle. Again 15-16 days before the occurrence some body had knocked the door of one Rajpal whose house is rear the house of the complainant in the odd hours of night. The wife of Rajpal did not open the door and climbed over the roof and raised alarms. Thereupon deceased, Shanti Swarup went upon his roof and fired his licensed gun to ward of danger. At that moment the appellant, Prempal Singh appeared and exchanged hot words with Shanti Swarup and threatened to dire consequences for his firing the gun. On account of this factor the appellant, Prempal Singh was bearing grudge against Shanti Swarup and had threatened him to dire consequences. At that moment the appellant, Prempal Singh appeared and exchanged hot words with Shanti Swarup and threatened to dire consequences for his firing the gun. On account of this factor the appellant, Prempal Singh was bearing grudge against Shanti Swarup and had threatened him to dire consequences. The other appellant, Rajveer Singh is a family member of Prempal Singh other appellants are also of their own family and this fact is not disputed. This enmity is proved on record by the statement of P. W. 1, Suresh Chandra. On this point the trial court has recorded a finding that these facts were not mentioned in detail in F. I. R. or any report was lodged earlier for such incidents. Simply the fact that it was not elaborated is the F. I. R. and - that no case was registered earlier for these incidents by Shanti Swarup is not enough to discard this factor of motive. Therefore, in these circumstances, it is established from the evidence on record and the circumstances of the case that the appellant, Prempal Singh was bearing enmity with Shanti Swarup and had threatened, him to dire consequences earlier. ( 19 ) THE suggestion of the defence that murder of Shanti Swarup might have taken place else where at different time as he was a man of bad character is not at all supported by any evidence of Circumstance. More suggestion given by the defence is not worthy of any credit. No evidence was adduced to show that Shanti Swarup was a man of bad character and he was involved in any other crime and there was any other enemy to take revenge. In this way the suggestion of the defence is baseless and imaginary. ( 20 ) FROM the sequence of events as deposed by the witnesses of fact and the link established by prompt F. I. R. , recovery of the dead body, postmortem report, it is established beyond doubt that the murder of Shanti Swarup had taken place at about 4 p. m. on 23. 9. 1978 at the same spot as alleged by the prosecution. 9. 1978 at the same spot as alleged by the prosecution. The eye witnesses, Suresh Chandra, Sachidanand and Fauzdar are consistant in their version that two appellants, Prempal Singh and Rajveer Singh appeared on the scene and on the exhortation of Rajveer Singh, Prempal Singh fired shots and Shanti Swarup got up from the cot and received injuries and he could manage to run hardly 30 paces and fell down and died. The participation of the appellant, Prempal Singh and Rajveer Singh in this crime committing the murder of Shanti Swarup is established beyond all reasonable doubt and they were rightly held guilty for the same. ( 21 ) NOW we proceed to examine the second part of the prosecution story that appellant, Rajveer Singh, was caught hold by one Shri Krishna who gave him a lathi blow and arrested by the witness, Fauzdar. Whereupon other appellants came on the scene armed with fire arms and rescued Rajveer Singh. On this point the witness had disclosed that after 5 or 7 minutes of the firing at Shanti Swamp Rajveer Singh was caught-hold by Fauzdar, P. W. 4, and one Shri Krishna gave a lathi blow to him. Then the remaining appellants appeared on the scene and rescued him. Shri Krishna had not been produced on this point who could be the best witness to depose that Rajveer was rescued after arrest. The other witness who were simply chasing the main culprits, Prempal Singh and Rajveer Singh, reached near the body of Shanti Swarup, who fell down. In our opinion there could be hardly any circumstance to indicate that Rajveer Singh was caught-hold by any person after receiving a lathi blow by one Shri Krishna. Shri Krishna was not examined, there appears doubt about this part of the story that actually Rajveer Singh was arrested and later on rescued by the remaining appellants. If Rajveer Singh was given a lathi blow by Shri Krishna, nothing had come to suggest that he received any injury on that account. It is also not worthy of any credit that Rajveer Singh was simply arrested and even a slap was not given by any other witness. If this could have been a fact, Rajveer Singh would have been given severe beating at least on thin spot by the witnesses. It is also not worthy of any credit that Rajveer Singh was simply arrested and even a slap was not given by any other witness. If this could have been a fact, Rajveer Singh would have been given severe beating at least on thin spot by the witnesses. Single lathi blow, as alleged by the prosecution, given by Shri Krishna and that toot Shri Krishna not being examined, does not inspire confidence to believe this part of the story that Rajveer Singh was rescued on the threat of deadly weapon by remaining appellants. Therefore, we can safely discard this part of the story as being an after-thought and a result of exaggeration to implicate all family members. ( 22 ) AS regards the charges, it has come out in evidence that the appellant, Rajveer Singh, was not actually arrested. He was simply chasing alongwith Prempal Singh the deceased, Shanti Swarup and when he died after running about 30 paces Prempal Singh managed to escape with his pistol. Rajveer Singh was having a lathi and he later on ran away throwing the lathi there. It has been established that Rajveer was actually arrested and rescued by the remaining appellants. In fact, there is no evidence to show that Rajveer had been arrested on the spot and was given a lathi blow by one Shri Krishna. As Shri Krishna was not examined and there is no injury on the body of Rajveer Singh having a lathi blow and also in the circumstances as revealed after examining the evidence, it was not actually a case of arrest of Rajveer Singh as he was chasing alongwith Prem pal, the victim, Shanti Swamp and after his death the two accused damaged to run away. Rajveer Singh might have been intercepted by the witnesses who were also chasing then running after Shanti Swamp to save him, but it was not a case of arrest of Rajveer Singh. ( 23 ) IN this view of the matter no charge under section 224, I. P. C. is made out against accused, Rajveer Singh. Also no charge under section 225, I. P. C. was made out against the remaining appellants, Brijpal Singh, Deshraj Singh Amar Singh and Phool Singh. As such they are entitled to acquittal under these charges. ( 23 ) IN this view of the matter no charge under section 224, I. P. C. is made out against accused, Rajveer Singh. Also no charge under section 225, I. P. C. was made out against the remaining appellants, Brijpal Singh, Deshraj Singh Amar Singh and Phool Singh. As such they are entitled to acquittal under these charges. ( 24 ) FROM the evidence on record and the circumstances of the case it is established that only Prempal Singh and Rajveer Singh had actually attacked Shanti Swamp with the intention to commit his murder. Rajveer Singh and Prempal Singh had appeared on the scene at the time of occurrence. Rajveer Singh was armed with lathi and Prempal Singh was armed with pistol. Rajveer Singh had actually exhorted whereupon Prempal Singh started firing upon Shanti Swamp who received injuries and running after a few paces died on the spot. As such from the evidence on record and circumstances of the case it is established that Prempal Singh and Rajveer Singh in furtherance of their common intention committed the murder of Shanti Swamp. Prempal Singh is certainly guilty under section 302, I. P. C. ( 25 ) THE trial court held Rajveer Singh also guilty for commission of the murder of Shanti Swarup, but it was held that Rajveer Singh had abetted the murder of Shanti Swarup. ( 26 ) FROM the evidence on record it was not a case of abetment rather it was it case of actual participation. In furtherance of their common intention Prempal Singh and Rajveer Singh appeared armed with pistol and lathi respectively. Rajveer Singh exhorted whereupon Prempal Singh had fired. Then both chased Shanti Swamp, who died after running a few paces. When they were satisfied that Shanti Swamp is dead only then they managed to escape. Prempal Singh escaped early. Rajveer Singh although chased by witnesses could manage to escape throwing his lathi there, which was recovered later on. As such, in our opinion it was not a case of abetment rather it is a case of commission of murder in furtherance of their common intention and Rajveer Singh is equally guilty applying the provisions of section 34 of the I. P. C. ( 27 ) THE common intention referred to in section 34 of the Indian Penal Code pre-supposes a prior concert, prearranged plan and prior meeting of minds. That did not mean that there must be a long interval of time between the formation of common intention and the doing of the act. It was not necessary to adduced direct evidence of the common intention. Indeed, in many cases it may be impossible to do so. The common intention may be inferred from the surrounding circumstances and the conduct of the parties. ( 28 ) IN this particular case it has come in evidence that Prempal Singh and Rajveer Singh appeared on the scene together armed with pistol and lathi respectively. This shows that there was a prior meeting of minds. Further, the appellant Rajveer Singh had exhorted to till Shanti Swamp whereupon Prempal Singh had fired. It is further evident on record that both; Prempal Singh and Rajveer Singh cased Shanti Swamp, who ran few paces and fell down and collapsed. In these circumstances, it is fully established that it was a case of common intention of Prempal Singh and Rajveer Singh to commit the murder of Shanti Swarup. As such it was not a mere case of abetment rather it is fully established that the murder of Shanti Swamp was committed by Prempal Singh in furtherance of common intention of Prempal Singh and Rajveer Singh both. ( 29 ) SINCE the charge was framed against Rajveer Singh under section 302 read with section 109 of the Indian Penal Code, he was convicted accordingly. Even if we convict Rajveer Singh under section 302 read with section 34 of the Indian Penal Code, we are of the opinion that no amendment of the charge at this stage is needed. The appellant, Rajveer Singh would not be said to have been prejudiced in any way for application of section 34 of the Indian Penal Code instead of section 109 of the Indian Penal Code. The entire evidence on record has been put to him in his examination under section 313, Cr. P. C. and, therefore, we are of the opinion that he can safely be convicted under section 302 read with section 34 I. P. C. ( 30 ) ACCORDINGLY we allow the two appeals in part. We acquit the appellants, Brijpal Singh, Desuraj Singh, Amar Singh and Phool Singh for the charge under section 225, I. P. C. They are-on bail and their bail bonds and surety bonds are discharged. We acquit the appellants, Brijpal Singh, Desuraj Singh, Amar Singh and Phool Singh for the charge under section 225, I. P. C. They are-on bail and their bail bonds and surety bonds are discharged. Appellant, Rajveer Singh is, however, also acquitted under section 224, I. P. C. We maintain the conviction of the appellant Prempal Singh under section 302, I. P. C. and his sentence to imprisonment for life. Further the conviction of appellant, Rajveer Singh is also maintained and instead of section 302 read with section 109 of the Indian Penal Code we convict him under section 302 read with section 34 of the Indian Penal Code and sentence him to imprisonment for life. ( 31 ) THE appellants Prempal Singh and Rajveer Singh are on bail. They shall be taken into custody forthwith to serve out the sentence awarded. When they surrender or taken into custody their bail bonds and surely bonds shall be discharged. Let a copy of this judgment be placed on the file of Criminal Appeal No. 2956 of 1979 (Prempal Singh and-other v. State of U. P. Which shall govern that appeal as well. Appeal allowed in part. . .