Judgment S.K.Katriar, J. 1. These two appeals arise out of a common judgment dated 7-9-89 passed by Mr. Ramchandra Prasad, 6th Additional Sessions Judge, Sasaram, in Sessions Trial No. 500/86 State V/s. Dip Narayan Paswan and two Ors., whereby Dip Narayan Paswan had been convicted under Sec. 302 of the Indian Penal Code as well as under Sec. 27 of the Arms Act. Appellants Ganga Paswan and Bangali Paswan have been convicted under Sec. 302, I.P.C. read with Sec. 34, I.P.C. and also under Sec. 27 of the Arms Act. Appellant Dip Narayan Paswan has been sentenced to undergo imprisonment for life for conviction under Sec. 302, I.P.C, Appellants Ganga Paswan and Bangali Pawan have been sentenced to undergo imprisonment for life for conviction under Sec. 302, I.P.C. read with Section 34, I.P.C. All the three accused-persons have also been sentenced to undergo rigorous imprisonment for three years each for committing the offence under Sec. 27 of the Arms Act. All the sentences have been ordered to run concurrently. Let it be recorded that Paswan and Dusadh as the second name of the appellants and the witnesses have been used inter-chartgeably throughout the trial. 2. According to the prosecution case, the fardbeyan of Pachkauri Dusadh (P.W. 1) was recorded on 10-6-86, at about 6 a.m., at the place of occurrence itself. During the previous evening (9-6-86), at about 7 p.m. he along with his sons Sahjan Dusadh (the deceased), and Shankar Dushadh (P.W. 3) were discussing the arrangements for the marriage of the daughter of Sahjan Dusadh. Dip Narayan Paswan, Ram Bilas Paswan, Ganga Paswan and Bangali Paswan, all wielding guns, arrived at about 8 p.m. from the west. Dip Narayan Dusadh fired a gun shot at Sahjan Dusadh which pierced him through his chest and the collapsed on the chawki. Dip Narayan Paswan said that the work is done and none else is to be done to death. Fardbeyan further alleges that the land dispute is the cause for the murder. On the basis of these allegations, a formal FIR was drawn up with the Kochas police station, district Rohtas, which was registered as Kochas P.S. Case No. 0032/86, dated 10-6-96, under Sec. 302 read with Sec. 34, I.P.C. The police investigated the allegations and submitted charge-sheet against four accused-persons. They were committed to the Court of Session & by order dated 9-12-87, passed by the learned 6th Addl. They were committed to the Court of Session & by order dated 9-12-87, passed by the learned 6th Addl. Sessions Judge, were to be tried under Sec. 302, I.P.C. read with Sec. 149, I.P.C. as well as 27 of the Arms Act, the case of accused Ram Bilas Paswan was separated. The present trial, therefore, relates to the three appellants above named only. 3. Pachkauri Ram Dusadh, the informant (P.W. 1), is an eye-witness to the occurrence and he has stated in his deposition that on the fateful evening at about 7 p.m. while he, his sons Sahjan Dusadh, and Shankar Dusadh (P.W. 3), were discussing the arrangements for the marriage of Sahjans daughter, Dip Narayan, Ganga, and Bangali as well as Ram Bilas approached from the western side. All the four were wielding guns. Ganga gave a call to kill, whereupon Dip Narayan fired the gun shot which hit Sahjan in his chest. All of them left on the call of Bangali, Sahjar. h-H died instantaneously. He says that the trial of-Ram Bilas Paswan was separated. He does not remember whether it was a moonlit night or a dark night. The accused-persons had not covered their faces and were known from before. He said that he felt terrorised by the presence of armed men. He says that blood had spilled on the Toshak and the Chowki, but does not remember due to the tragedy that struck him whether or not blood had fallen on the ground also. He clearly says that he had land dispute from before with Bangali and Ganga, He says that he was not in his senses to go to the police station, He had sent a Choukidar to the police station. He also deposed that Sahjan was a respectable person and had a licensed rifle. 3.1 Rajaram Paswan is P.Ws. 2. He is the grand-son of P.W. 1. and is the son of Shankar Ram (P.W. 3). He is also an eye-witness and had approached the place of occurrence just after the fatal shot had hit the deceased. He says that he had left his house to call Pachkauri, Sahjan and Shankar for their dinner who were sitting at the boring site (tube-well boring), just west of the village. He is also an eye-witness and had approached the place of occurrence just after the fatal shot had hit the deceased. He says that he had left his house to call Pachkauri, Sahjan and Shankar for their dinner who were sitting at the boring site (tube-well boring), just west of the village. When he was ten steps from the P.O., he found that Dip Narayan, Ram Bilas, Ganga Ram and Bangali Ram were already there and all of them had guns in their hands. Dip Narayan shot dead Sahjan saying that he was the reason for the quarrel, whereafter all the four left westward. He rushed to Sahjan but he was dead. He says in his cross-examination that he was only ten steps away from the boring that he had heard the sound of gun shot. He also says that Shankar and Pachkauri had made no efforts to bring down Sahjan from the Chowki to the ground, nor any attempt was made to give him water, or to stop the bleeding, and blood was not gushing out. In fact, when he had approached the deceased no blood was oozing. He had seen the gun shot being delivered when he was only ten steps away. There were stains of blood on the Toshak. He also deposes that Dip Narayan was not a frequent visitor to his village. He further said that he had stayed overnight at the place of occurrence along with his grand father and his father. 3.2 Shankar Ram (P.W. 3) is an eye-witness and was in the company of the deceased and the informant at the time of the occurrence. He has stated in his deposition that three of them were sitting together at the boring site. Dip Narayan, Ram Bilas, Ganga and Bangali and arrived at the P.O. all of whom were wielding guns. Dip Narayan fired the shot which hit Sahjan on his chest and he died. The accused-persons fled away. Many persons had visited the P.O. overnight but does not remember any one of them. 3.3. Hari Narayan Ram (P.W. 4), is a co-villager. He was in his house between 8 to 9 p.m., when he heard the sound of a gun shot from the western side of the village. He went in that direction, and found Shankar and Pachkauri coming from that side who were all wailing with grief. 3.3. Hari Narayan Ram (P.W. 4), is a co-villager. He was in his house between 8 to 9 p.m., when he heard the sound of a gun shot from the western side of the village. He went in that direction, and found Shankar and Pachkauri coming from that side who were all wailing with grief. He reached the P.O. and found the dead body of Sahjan Ram on the Chowki. He claims to be an agnate of Pachkauri. 3.4. Chandralok Prasad Singh (P.W. 5) is the Medical Doctor who had conducted the post-mortem examination over the dead body of the deceased. He proved his post-mortem report which has been marked Ext. 2. He had found the following ante-mortem injuries on the dead body: 1. A punctured wound 2" in diameter on the left side of the front of qhest about one inch a way from mid-line. The margins of the wound were everted and the skin around the wound was found smoked. On dissection of thorax fracture of left, third, fourth and fifth ribs were found. The heart was found lacerated. The left lungs was also found lacerated. The left thoracic cavity was full of blood. One card board and seven pellets were found in side the left thoracis cavity. 2. The injury appeared to have been caused by some fire-arm might be a gun the time of death at the time of post-mortem was within twenty hours. 3. In my opinion, the death was caused by the injury described above the injury effected vital organs heart & lungs. 4. The injury found by me in the ordinary course of nature was sufficient to cause the death of the victim. In his opinion, the gun shot was from a close range, the margins of the wound were inverted, the skin around the wound was smoked, three ribs were fractured, the left thoracic cavity was full of blood and one card board and seven pelletes were found inside the left thoracic cavity. 3.5. Sagir Ahmad (P.W. 6), is the I.O., who had conducted the investigation. He has proved the FIR marked Ext. 3. He deposes that the FIR is in his own handwriting and bears his own signature which he had recorded on 10-6-86. He had heard of the murder and gone to the place of occurrence. He had recorded the fardbeyan and also investigated the allegations. He has proved the FIR marked Ext. 3. He deposes that the FIR is in his own handwriting and bears his own signature which he had recorded on 10-6-86. He had heard of the murder and gone to the place of occurrence. He had recorded the fardbeyan and also investigated the allegations. He had found the dead body of Sahjan lying on the Chowki. After preparing the inquest report, he had forwarded the dead body to Sasaram for post-mortem. He had inspected the place of occurrence with the help of the informant. The P.O. is the land in front of the hut of the informant. He had found blood on the Chowki. After completing the investigation, he had submitted the charge-sheet. He said that his investigation was incomplete and had yet submitted charge-sheet because the same had to be submitted within 90 days of the date of occurrence. He had not found any incriminating materials against Ganga Paswan and Bangali Paswan. He says that he had heard of a rumour about the occurrence at about 5 a.m. when he was at the Thana. He clarified in his cross-examination that by the house of the deceased he had meant a hut adjoining the P.O. He does not remember to have seen Toshak (Mattress) on the Chowki, nor he had found blood on the ground. He also deposes that there was no boring at the P.O., nor had he found the P.O. wet. He has also said that he had recorded the statement of all the witnesses at the P.O. itself. He stoutly denies the suggestion that he ever had any doubt that the dead body of Sahjan had been brought to the P.O. from a different place. 4. In view of the aforesaid evidence on record, learned Counsel for the appellants submitted that; the prosecution case of murder of Sahjan Dusadh by the aforesaid three appellants has not been proved beyond all reasonable doubts, The prosecution case is that the murder took place in the open field late in the evening and there was no source of identification at all. It. was also submitted that there is difference of version in this connection at various stages. It. was also submitted that there is difference of version in this connection at various stages. The FIR says the time of occurrence as 8 p.m., whereas some of the witnesses have said that the occurrence had taken place between 8-9 p.m. In such circumstances, identification of the accused-persons has become very doubtful. We are unable to accede to this contention because it was a summer evening i.e. 23-6-86, when the sun sets quite later. Secondly, it has been uniformally stated in the evidence of all the P.Ws. that the accused-persons were quite well known to the prosecution witnesses. Further, more none of them had been hiding their faces. Thirdly, after their arrival and till such time, they left after commission of the offence that they were standing next to the prosecution witnesses (P.W. 1 to P.W. 3) who are eye-witnesses. In such circumstances, we have no hesitation in holding that there was no difficulty in identifying the accused-persons. 5. It was next submitted that some one, else might have murdered Sahjan elsewhere, and the informant and Ors. brought his dead body at the place of occurrence & falsely implicated the accused-persons. The prosecution witnesses have said that after the gun shot injury, Sahjan collapsed on his chest and lay on the Toshak (mattress) spread on the Chowki, whereas the I.O, (P.W. 6) has stated in his evidence that when he visited the place of occurrence at about 6 a.m. on 24-6-86, he found the dead body lying on a Chowki without Toshak (mattress). It has also been submitted that not enough blood was found on the earth. We have no hesitation in rejecting this contention for the reason that all the eyewitnesses have consistently deposed that Sahjan had collapsed on his chest on the mattress spread on the Chowki, all of whom had seen the dead body soon after the death. In fact, the first informant (P.W. 1), and Shankar Dusadh (P.W. 3), another eye-witness had consistently deposed along with other prosecution witnesses on this point. It is only the I.O. (P.W. 6) who does not talk of the mattress because he had gone to the P.O. about 11 hours after the occurrence. Secondly, all the P.Ws. were deposing before the Court about more than two and half years after the occurrence. It is only the I.O. (P.W. 6) who does not talk of the mattress because he had gone to the P.O. about 11 hours after the occurrence. Secondly, all the P.Ws. were deposing before the Court about more than two and half years after the occurrence. Thirdly, this has also to be seen in the light of the next submission that not enough blood was found on the earth which means that the mattress must have soaked the entire blood which came out of the dead body and, therefore, must have been removed by the time the I.O. arrived in the morning as a mark of respect to the dead body. It is for this reason, namely, that the entire blood which had come out of the dead body was soaked by the mattress that very little or no blood had dropped on the earth. We, therefore, reject, both the submissions. 6. It was next submitted that the prosecution has failed to establish the place of occurrence. The F.I.R. as well as the prosecution witnesses state that there was a boring at the P.O. whereas the I.O. (P.W. 6) deposed that he did not find any boring at the P.O. We reject this contention for the reason that this is a minor variation of version which does not touch the prosecution case. All the P.Ws. including the eye-witnesses have consistently deposed that Pachkauri (P.W. 1) and Shankar Dusadh (P.W. 3) were sitting near the boring when the occurrence took place. It must be remembered that the I.O. was deposing more than two and half years after the occurrence and, therefore, might have slightly erred in stating a minor detail. 7. It was next submitted that no overt act is attributed to Ganga Paswan and Bangali Paswan, in the fardbeyan, yet P.W. 1 has said in his deposition that Ganga had given a call to kill Sahjan, and all of them left after the fatal shot was fired on the asking of Bangali. Learned Counsel submitted that this version is an after-thought and a clear case of false implication, inasmuch as this version is not to be found in the F.I.R. It was further submitted that this part of evidence of P.W. 1 is not corroborated by any other witnesses. Learned Counsel submitted that this version is an after-thought and a clear case of false implication, inasmuch as this version is not to be found in the F.I.R. It was further submitted that this part of evidence of P.W. 1 is not corroborated by any other witnesses. We are unable to accede to this contention for the reason that the fardbeyan is a mere information to the police to start investigation in accordance with law. Secondly, the FIR very clearly states that all the three appellants along with the one more had come to the place of occurrence, all of them were wielding guns and had left together. There is no variation in the version in the deposition of P.W. 1 and the allegations in the F.I.R. P.W. 1 has given graphic details in his deposition. The F.I.R. clearly mentions the names of both Ganga Paswan and Bangali Paswan. This contention is, therefore, rejected. 8. It was next submitted that the I.O. (P.W. 6) has stated in para 6 of his deposition that he had submitted the charge-sheet in a hurry because he wanted it to be submitted before completion of 90 days. The investigation against Ganga and Bangali was yet to be done which, in fact, never took place. We are not impressed by this contention for the reason that the trial Court is not bound by the investigation or the formation of opinion culminating in the charge-sheet. Secondly, their names clearly figured in the FIR. Thirdly, their involvement in the commission of the offence has been clearly proved by the evidence on record. The prosecution witnesses have consistently deposed that Ganga and Bangali had accompanied Sahjan and one more, all armed with guns and had left together after the occurrence. As stated above, P.W. 1 further deposed that Ganga had given a call to murder, and all of them had left on the call of Bangali after the crime was committed. We have, therefore, no hesitation in rejecting this contention. 9. It was lastly submitted on behalf of the appellants that the charges were framed under Sec. 302 read with Sec. 149, I.P.C. whereas conviction has been recorded under Sec. 302 read with Sec. 34, I.P.C. which is not permissible in law. In any event, the prosecution has not been able to prove the charges under Secs. 302/34, I.P.C. against Ganga Paswan and Bangali Paswan. In any event, the prosecution has not been able to prove the charges under Secs. 302/34, I.P.C. against Ganga Paswan and Bangali Paswan. The FIR does not allege any overtact against these two appellants. It was, therefore, submitted that the conviction against Ganga Paswan and Bangali Paswan ought to be set aside. 9.1. Learned A.P.P. has submitted in reply that no exception can be taken to the conviction under Secs. 302/34, I.P.C. even though charges were framed under Sec. 302 read with Sec. 149, I.P.C. unless prejudice is established. 9.2. Having considered the submissions of both the sides, we are of the view that the contention has to be rejected. It is necessary to make a survey of the reported judgments on the point. Lord Sumner in his classic judgment in the case of Barendra Kumar Ghosh V/s. King Emperor AIR 1925 PC 1, observed while comparing and contrasting Secs. 34 and 149 of the Indian Penal Code as follows: ...There is a difference between object and intention for, though their object is common, the intentions of the several members may differ and indeed may be similar only in the respect that they are all unlawful while the element of participation in action which is the leading feature of Sec. 34 is replaced in Sec. 149 by membership of the assembly at the time of the committing of the offence. Both sections deal with combinations of persons, who become punishable as sharers in an offence. Thus they have a certain resemblance and may to some extent over lap... The judgment of the Supreme Court Kamail Singh V/s. State of Punjab, AIR 1954 SC 204 decided just the same issue as in the instant case. While comparing and contrasting the two provisions, it has been held as follows in paragraph 7 of the report: ...Then the next question is whether the conviction of the appellant under Sec. 302 read with Sec. 34, when they had been charged only under Sec. 302 read with Sec. 149 was illegal. While comparing and contrasting the two provisions, it has been held as follows in paragraph 7 of the report: ...Then the next question is whether the conviction of the appellant under Sec. 302 read with Sec. 34, when they had been charged only under Sec. 302 read with Sec. 149 was illegal. The contention of the appellants is that the scope of Sec. 149 is different from that of Section 34, that while what Sec. 149 requires is proof of a common object, it would be necessary under Sec. 34 to establish a common intention and that, therefore, when the charge against the deceased is under Sec. 149, it cannot be converted in appeal into under Section. 34...It is true that there is a substantial difference between the two sections, but as observed by Lord Sumner in Barendra Kumar Ghosh V/s. Emperor AIR 1925 PC ] (D). they also to some extent overlap and it is a question to be determined on the facts of each case whether the charge under Sec. 149 overlaps the ground covered by Section 34. If the common object which is the subject-matter of the charge under Sec. 149 does not necessarily involve a common intention, then the substitution of Sec. 34 for Sec. 142 might result in prejudice to the accused and ought not, therefore, the permitted. But, if the facts to be proved and the evidence to be adduced with reference to the charge under Sec. 149 would be the same if the charges were under Sec. 34, then the failure to charge the accused under Sec. 34 could not result in any prejudice and in such cases the substitution of Sec. 34 for Sec. 149 must be held to be a formal matter, We do not read the observations in -- as an authority for the broad proposition that in law there could be no recourse to sec. 34 when the charge is only under Sec. 1 49. Whether such recourse can be taken or not must depend on the facts of each case. This is in accord accord with the view taken by this Court in -- , where the substitution of Sec. 34 for Sec. 149 was upheld on the ground that the facts were as such. Whether such recourse can be taken or not must depend on the facts of each case. This is in accord accord with the view taken by this Court in -- , where the substitution of Sec. 34 for Sec. 149 was upheld on the ground that the facts were as such. That the accused could have been charged alternatively either under Section 302 read with Sec. 149 or under Sec. 302 read with Sec. 34. The Supreme Court in its judgment -- State of U.P. V/s. Iftikhar Khan , has held that Sec. 34 does not by itself create any offence, whereas Section 149 does. In charge under Sec. 34, there is active participation in the commission of the criminal act; under Sec. 149, the liability arises by reason of the membership of the unlawful assembly with a common object, and there may be no active participation at all in the perpetration or commission of the crime. 10 It was held by the Supreme Court in its judgment reported in AIR 1958 SC 673, B.N. Srikantiah V/s. Mysore State, that although there is a difference in common object and common intention, both deal with the combination of persons who become sharers punishable in an offence and a charge under Sec. 149, I.P.C. is no impediment to a conviction by the application of Sec. 34 if the offence discloses the commission of the offence in furtherance of the common intention of all. 11. The same view was reiterated by the Supreme Court in its judgment reported in AIR 1961 SC 1787 , Kartar Singh V/s. State of Punjab, wherein it was held that "...there was no good reason why they be not held liable, constructively, for the acts of the other persons of the unlawful assembly, in the circumstances which makes Sec. 149, I.P.C. applicable to them...The mere fact that Kartar Singh was not connected with the dispute about the plot of land is not sufficient to hold that he could not. have formed a common intention with the others when he went with them armed. The conviction under Secs. 302 mid 307 read with Sec. 149, can be converted into one under Secs. 302 and 307 read with Sec. 34,1. P.C." It has been further held that prejudice must be established to prevent such a conversion. In other words, such a conversion should not result in failure of justice. 12. The conviction under Secs. 302 mid 307 read with Sec. 149, can be converted into one under Secs. 302 and 307 read with Sec. 34,1. P.C." It has been further held that prejudice must be established to prevent such a conversion. In other words, such a conversion should not result in failure of justice. 12. The Supreme Court has held in its judgment -- , State of U.P. V/s. Iftikhar Khan, that in order to invoke Sec. 34 against the accused, prior concert or a pre-arranged plan has to be established, and though it has to be inferred from his act, or conduct and other relevant circumstances, it is not necessary that any overt act must have been done by any particular accused. It is enough if the criminal act has been done by one of the accused in furtherance of the common intention. 13. It has been held by the Supreme Court in its judgment -- , Harichand V/s. State of Delhi, that the fact that injured eye-witness did not attribute any positive act on the part of accused in question in giving lathi blows to the accused is not material. Once it is found as an issue of fact that the accused-persons shared common intention to commit the offence with other accused, no positive act is essential. Sec. 34 is clearly attracted. 14. The Supreme Court has held in its judgment reported in 1974 SC 1564, Bhajan Singh V/s. State of Punjab that Sec. 149 constitutes, per se, a substantive offence by itself, although the punishment is under the Section to which it is tagged being committed by the principal offender in the unlawful assembly, known or unknown. 15. It has been held by the apex Court in its judgment -- Krishnan V/s. State of Kerala, that establishment of an overt act is not a requirement of law to allow Sec. 34 to operate inasmuch as this section gets attracted when a criminal act is done by several persons in furtherance of common intention of all. What has, therefore. to be established by the prosecution is that all the concerned persons had shared the common intention. Courts mind regarding the sharing of common intention get satisfied when overt act is established qua each of the accused. But then, there may be a case where the proved facts would themselves speak of sharing of common intention res ipsa loquitur. to be established by the prosecution is that all the concerned persons had shared the common intention. Courts mind regarding the sharing of common intention get satisfied when overt act is established qua each of the accused. But then, there may be a case where the proved facts would themselves speak of sharing of common intention res ipsa loquitur. 16. Let us examine the evidence in the light of the reported authoritative judgments of the Supreme Court. P.Ws. 1, 2 and 3 have clearly deposed that the four accused-persons had come together* and all of them were armed with guns. Ganga gave a call to kill, whereupon Dip Narayan fired the fatal gun shot which hit the deceased in his chest. After the crime was committed, all the four accused-persons left the place of occurrence at the behest of Bangali. In such circumstances, this Court is in no doubt that Ganga and Bangali shared the common intention with Dip Narayan to kill Sahjan. They had come determined with the common intention, all of them were armed with guns, Ganga was the order-giver and at the behest of Bangali, accused-persons had made the exit are enough to attract the provisions of Sec. 34, I.P.C. and make these two accused-persons vicariously liable for the murder of Sahjan, and no overtact is needed. It was their object under Sec. 149 to murder Sahjan, that was also their intention under Sec. 34. On the facts of this case, there can be no difference between the object and the intention with which the offences were committed. The totality of circumstances show pre-meditation and planning, strong determination to kill Sahjan, and execution of the common intention was done with full unity of purpose and meeting of the minds. As we have found hereinabove, the proved facts themselves speak of sharing of common intention ; Res Ipsa Loquitur no doubt. There is not the least of evidence on record to show that the accused-persons had at all wavered or there was any difference in views at the place of occurrence in execution of the common intention. This Court is convinced that no further evidence was needed to prove their implication in terms of Sec. 145, I.P.C. except that it needed at least five persons to complete the unlawful assembly. This Court is convinced that no further evidence was needed to prove their implication in terms of Sec. 145, I.P.C. except that it needed at least five persons to complete the unlawful assembly. We are satisfied that the substitution of Sec. 34 in the place of Sec. 149 in the charge by the Court below has resulted in no prejudice to the appellants. We, therefore, reject the contention advanced on behalf of Ganga Paswan and Bangali Paswan. 17. In the result, both the appeals are dismissed and the conviction and sentence recorded by the trial Court are hereby upheld. The appellant Dip Narayan Paswan is already in custody and is directed to serve the remaining part of his sentence as this Court had rejected his prayer for bail while admitting his appeal. The appellants, Ganga Paswan and Bangali Paswan, were granted bail by this Court by order dated 4-9-99, Their bail bonds are hereby cancelled, and they are directed to surrender before the trial Court forthwith to serve the remaining part of their sentence. D.P.S.Choudhary, J. 18 I agree.