Judgment J.C. Gupta, J. (1) Aggrieved by the judgment and order dated 28.6.1980 in Sessions trial No. 13 of 1979 the appellants above named have preferred this appeal challenging their conviction under Section 302 read with Section 34, IPC and under Section 307 read with Section 34, IPC whereunder each of the appellants has been sentenced to imprisonment for life and five years rigorous imprisonment respectively. (2) According to the prosecution case, the incident in question occurred on 3.11.1978 at about 7 p.m. in the Kasba of Akbarpur when Mohammad Iqbal, the deceased of the case came out from the Gymnasium, the three appellants met him in the lane in front of the Gymnasium. The accused Abdul Salam and Qamrul Zama were having country-made pistol while Mohar Khan was possessed with a hockey. Accused Abdul Salam exhorted his companions to catch hold of the deceased and to kill him. On this Mohammad Iqbal ran but all the three accused persons chased him and fell him down in front of the betel shop of Ram Kumar Patel by assaulting him with hockey. On the alarm raised by Mohammad Iqbal, Arvind Kumar P.W. 3, Virendra Singh Chandel, Vishnu Kumar Misra, Mohammad Ali and others were attracted to the scene of occurrence and when Arvind Kumar, P.W. 3 challenged them, accused Qamrul Zama opened fire upon him from his country-made pistol which caused him injuries. Thereafter Abdul Salam and Qamrul Zama both fired one shot each from their respective pistols on Mohammad Iqbal which resulted in his instantaneous death. His father Peer Ali P.W. 2 got information of the incident while he was going to purchase vegetables from his house. He immediately rushed to the scene of occurrence and found his son lying on the road in the market. He without any delay got his son removed to Government Dispensary with the help of Maqsood Ali, Kamlesh and Shakoor where his son was declared dead. It is said that the witnesses had identified the accused persons in electric light. The motive for the commission of the murder is said to be that about six months prior to the date of murder in question, accused Abdul Salam and Qamrul Zama had assaulted one Nisar Alam. Mohammad Iqbal, the deceased of the present case, was a prosecution witness in the aforesaid case. Accused Mohar Khan is a friend of rest of the two accused persons. Mohammad Iqbal, the deceased of the present case, was a prosecution witness in the aforesaid case. Accused Mohar Khan is a friend of rest of the two accused persons. All the three accused pressurised Mohammad Iqbal not to appear as a witness against them in the aforesaid case but Mohammad Iqbal did not agree and told them that he would depose the truth and would tell whatever had been witnessed by him. The accused persons then threatened Mohammad Iqbal with dire consequences. (3) Peer Ali P.W. 2 got FIR Ex. Ka. 7 scribed by Ram Prasad Mishra and lodged the same at police station Akbarpur on the same evening at 8.10 p.m. On the basis of the same Head Moharrir Jagmohan Lal P.W. 5 prepared check FIR Ex. Ka. 3 and registered the case in the general diary at serial No. 40 whose copy is Ex. Ka. 4. Injured Arvind Kumar was then sent for medical examination. Dr. Jagdish Prasad Mehrotra. P.W. 1 medically examined Arvind Kumar Agnihotri on the same evening at 9 p.m. and he found the following injury:- "A perforated wound 1/4" 1/4" 3/4" present in the right ingunial region. Fresh oozing of blood present, swelling all round the wound present, in right thigh swelling present, no blackening, scorching present around the wound." (4) Arvind Kumar was referred to U.H.M. Hospital, Kanpur for expert's opinion on the nature of the wound and for X-ray examination. Injury report of Arvind Kumar is Ex. Ka. 1. Dr. Mehrotra in his statement before the Court further opined that the injury was fresh and could be caused at about 7 p.m. on the same evening. He further opined that the injury could be caused by a firearm but since he was not sure about this, he referred the case for expert's opinion to U.H.M. Hospital, Kanpur, Dr. S.C. Prasad, Radiologist took X-ray of the right hip joint of Arvind Kumar, X-ray report, Ex. Ka. 19, revealed a rounded radio opaque shadow of metallic density located in the region of right hip joint. The X-ray report of Arvind Kumar is Ex. 9. Dr. Prasad opined that the injury of Arvind Kumar could be possible by a firearm. S.C. Prasad, Radiologist took X-ray of the right hip joint of Arvind Kumar, X-ray report, Ex. Ka. 19, revealed a rounded radio opaque shadow of metallic density located in the region of right hip joint. The X-ray report of Arvind Kumar is Ex. 9. Dr. Prasad opined that the injury of Arvind Kumar could be possible by a firearm. After the case was registered at the police station, investigation was entrusted to S.I. Azizuddin Ahmad P.W. 6 who recorded the statements of first informant Peer Ali and injured Arvind Kumar at the police station itself and then conducted inquest on the dead body of Mohammad Iqbal on the same night. After completing other formalities the dead body was sent for post-mortem examination. Thereafter the investigating officer interrogated Virendra Singh, Kishan Kumar and Mohd. Ali P.W. 4. He made inspection of the site of incident in the presence of first informant Peer Ali and prepared site plan Ex. Ka. 11. He also collected blood-stained and plain earth, one empty cartridge, three ticklies and one pellet from the spot and prepared memos Ex. Ka.12 and Ex. Ka. 13 respectively. Other witnesses were also interrogated and after completing the investigation charge-sheet Ex. Ka. 15 was submitted against all the three accused persons. (5) DR. R.K. Kashyap, P.W. 7 performed post-mortem examination on the dead body of Mohammad Iqbal on 4.11.1978 at 4.30 p.m. The following ante-mortem injuries were noticed:- 1. Lacerated wound 3 cm. 1 cm. on right side of scalp above ear. 2. Six circular gun shot wounds 3/4 cm. 3/4 cm. each on front of chest right side near mid line 3 cm. above xyphi sternum, scattered in an area measuring 4 cm. 4 cm. tattooing and blackening present around each wound upto 2-3 milimeter in area. 3. Three lacerated wounds measuring 2 cm. 1 cm. 1-1/4 cm. 3/4 cm. and 1 cm. 1/2 cm. on front of left leg middle part. (6) In the internal examination doctor found fracture of 5th and 6th costal cartilages right side near its junction to xyphi sternum. Pleural cavity contained 16 ounces of blood. Four gun shots were recovered from the thoracic cavity, margins of lower lobe showed through and through wound of gun shots. One shot recovered from the tissue of right lung. (6) In the internal examination doctor found fracture of 5th and 6th costal cartilages right side near its junction to xyphi sternum. Pleural cavity contained 16 ounces of blood. Four gun shots were recovered from the thoracic cavity, margins of lower lobe showed through and through wound of gun shots. One shot recovered from the tissue of right lung. Pericardium showed a punctured wound over right vertical cavity and there was a through and through wound in right chamber of the size of 1 cm. 1 cm. Stomach contained semi-digested food of about 8 ounces. Large intestines contained faecal matter and gases. In the opinion of the doctor death was caused due to shock and haemorrhage as a result of ante-mortem injuries. The post-mortem report of Mohammad Iqbal is Ex. Ka. 16. Dr. Kashyap P.W. 7 in his statement before the Court further opined that it was possible that death of Mohammad Iqbal occurred at about 7 p.m. on 3.11.1978 and the firearm injuries sustained by him were sufficient to cause death in ordinary course of nature. In order to prove its case, prosecution produced 8 witnesses in the trial court. They are P.W. 1 Dr. J.P. Mehrotra, who examined the injury of injured Arvind Kumar Agnihotri, P.W. 2 Peer Ali, father of the deceased who proved F.I.R. Ex. Ka. 1, P.W. 3 Arvind Kumar Agnihotri, an injured witness who narrated the entire details of the incident, P.W. 4 Mohd. Ali, an eye-witness, P.W. 5 Head Constable Jagmohan Lal, who proved chick F.I.R. and relevant G.D. entry, P.W. 6 S.I. Azizuddin Ahmad, the Investigating Officer, P.W. 7 Dr. R. K. Kashyap, who proved post-mortem report of the deceased P.W. 8 Dr. S.C. Prasad Radiologist, who proved X-ray plate and X-ray report of Arvind Kumar Agnihotri. (7) The case of the accused persons was of total denial. Accused Qamrul Zama stated in his statement recorded under Section 313, Cr. P.C. that he has been falsely implicated at the instance of Nisar Ahmad and Munne Miyan. Accused Abdul Salam also stated likewise. Accused Mohar Khan stated that Arvind Kumar is a friend of the deceased while Mohammad Ali is his relation. They produced no witness in defence. Accused Qamrul Zama stated in his statement recorded under Section 313, Cr. P.C. that he has been falsely implicated at the instance of Nisar Ahmad and Munne Miyan. Accused Abdul Salam also stated likewise. Accused Mohar Khan stated that Arvind Kumar is a friend of the deceased while Mohammad Ali is his relation. They produced no witness in defence. (8) The learned Sessions Judge on an analysis of evidence on record came to the conclusion that the incident had occurred at the time, place and in the manner as alleged by the prosecution wherein Mohammad Iqbal and Arvind Kumar Agnihotri sustained firearm injuries at the hands of the accused persons and finding the case against them proved beyond reasonable doubt, the appellants have been convicted and sentenced as already stated above. Learned counsel for the appellants Sri G.S. Chaturvedi and Sri Ramyash Pandey learned A.G.A. were heard at length. (9) Learned counsel for the appellants submitted before this Court that though the incident is said to have occurred in the market area and as per the admission of P.W. 2 Peer Ali some shops were also open, yet no person of the locality has been produced to state about the incident, therefore, non-production of any such witness seriously affects the truthfulness of the version stated by the witnesses produced at the trial. It is further submitted that it was highly doubtful that there was sufficient light available at the scene of occurrence and most likely the incident had occurred in darkness and the witnesses including the injured were not able to identify the assailants and have nominated the present appellants under police pressure or suspicion. (10) So far as the motive behind the murder in question is concerned, there is ample evidence on record to indicate that the deceased was a prosecution witness in a 307, I.P.C. case pending against accused Abdul Salam and Qamrul Zama. P.W. 2 Peer Ali has stated on oath that his son Mohammad Ali was a witness against the aforesaid accused in a 307, I.P.C. case and Mohar Khan is the son of the mother's sister of accused Qamrul Zama and is a friend of accused Abdul Salam. He further stated that accused persons had threatened his son not to give evidence against them. Peer Ali during the days of incident was employed as a Peon in Tehsil Akbarpur. He further stated that accused persons had threatened his son not to give evidence against them. Peer Ali during the days of incident was employed as a Peon in Tehsil Akbarpur. In cross-examination, he further deposed that Section 307, I.P.C. case was instituted by Nisar Alam and in that case besides his son, Mohd. Sami and Vinod Kumar were also prosecution witnesses and he was told by his son about the threat given to him by the accused persons. From the copy of F.I.R. filed from the side of the accused Ex. Ka. 2, it would appear that one Nisar Alam Khan son of Munna Miyan Khan had lodged a report under Section 307, I.P.C. on 8.5.1978 against Abdul Salam and Qamrul Zama. It is stated therein that at about 2.30 p.m. Nisar Alam was coming to his home on his motorcycle, and as soon as he had reached near the house of Nasmal son of Ismail in Mewati Mohalla, accused Abdul Salam fired upon him from a country made pistol and Qamrul Zama also fired but luckily he escaped injuries and ran away on his motorcycle. The incident was witnessed by Vinod Kumar, Mohammad Shamim and Mohammad Iqbal son of Peer Ali the present deceased. It is thus fully borne out that the deceased was cited as a prosecution witness in a case registered under Section 307, I.P.C. against accused Abdul Salam and Qamrul Zama. It is also in the evidence that the third accused Mohar Khan is a relation of Qamrul Zama and is a friend of accused Abdul Salam. Therefore, there was nothing unnatural if the present accused persons tried to win over Mohd. Iqbal and when Mohd. Iqbal did not yield to their pressure, the accused persons decided to eliminate him. It is, therefore, proved that the accused persons had a strong motive to commit the murder of Mohammad Iqbal. As far as the incident is concerned, there can be no doubt that the same had occurred in the market area in front of the shop of Ram Kumar Patel. Investigating Officer visited the scene of occurrence in the night itself and found blood and one empty cartridge, three ticklies and a pellet on the spot. The place of occurrence has also not been seriously disputed or challenged from the defence side. Investigating Officer visited the scene of occurrence in the night itself and found blood and one empty cartridge, three ticklies and a pellet on the spot. The place of occurrence has also not been seriously disputed or challenged from the defence side. (11) In order to substantiate the allegation that the present three appellants participated in the incident in question, the prosecution has relied upon the testimony of two witnesses of fact namely Arvind Kumar Agnihotri P.W. 3 and Mohd. Ali P.W. 4. Peer Ali P.W. 2 is the father of the deceased and as per his own statement, he was not present at the scene of occurrence when his son Mohammad Iqbal was attacked and killed. He reached at the scene of occurrence within a few minutes after receiving information of the incident when he was going to vegetable market from his home. He removed his son to the nearest Government Dispensary where compounder who attended the deceased declared him dead. Thereafter P.W. 2 Peer Ali got the F.I.R. scribed and lodged the same at 8 p.m. at the police station. IN the F.I.R. all the necessary details were disclosed including the motive. Arvind Kumar Agnihotri P.W. 3 who himself had received firearm injuries during the course of incident had accompanied Peer Ali to the police station. The F.I.R. of the present case contained facts as were conveyed to the first informant by injured Arvind and other witnesses, therefore, the mere fact that it was not stated therein that in what manner and from what distance the shots were fired upon the deceased is hardly material. F.I.R. cannot be an encyclopaedia and one cannot expect from the maker of the F.I.R. to describe each and every detail regarding the manner of assault. We have to pay due regard to the fact that in this case, maker is not an eye-witness himself. IN his statement before the Court P.W. 2 Peer Ali stated that when he was going to purchase vegetables and had reached near the house of Kunwar Bahadur, Advocate he got information of the murder of his son. He further stated that he did not remember the names of the person who conveyed the information to him. IN his statement before the Court P.W. 2 Peer Ali stated that when he was going to purchase vegetables and had reached near the house of Kunwar Bahadur, Advocate he got information of the murder of his son. He further stated that he did not remember the names of the person who conveyed the information to him. Simply because he forgot to name the persons from whom he got the information of the commission of the murder of his son, it cannot be inferred that Peer Ali was later on called at the police station and the F.I.R. of the case was then got scribed. It all depends upon one's frame of mind. How much impact the news of murder of his son had on his mind is very difficult to estimate or judge. A disturbed and shocked mind may remember or may fail to recapitulate the figure and name of the one who might have communicated him the information of his son's murder. Such a trivial circumstance deserves outright rejection. It may not be out of place to mention here that the house of Kunwar Bahadur, Advocate was situated only at a distance of 150 paces from the place of occurrence as stated by this witness. IN the F.I.R. itself, this witness had mentioned that he got the information of the incident in question when he was going from his house to purchase vegetables. It has also come in his evidence that on the date of incident, he had come back home at about 5 p.m. and on reaching there, he came to know that his son Mohammad Iqbal has gone to Gymnasium. This witness had absolutely no enmity or grudge against any of the accused persons. (12) Learned counsel for the appellants submitted that as per the admission of this witness, police station falls in the way to hospital from the place of occurrence, yet no F.I.R. was made there and accordingly it must be held that the F.I.R. of the present case was highly delayed. We find no substance in this submission of the learned counsel for the appellant. We find no substance in this submission of the learned counsel for the appellant. It is in the evidence of Peer Ali that when he reached the scene of occurrence, he found 10-15 persons present there and within 2-4 minutes he proceeded to hospital after getting his son Mohammad Iqbal lifted from the place of occurrence as blood was oozing out from his injuries and when he reached the nearby Government Dispensary the compounder who attended the injured son declared him dead. Peer Ali was the father of the deceased and as his son had sustained serious and fatal firearm injuries it would be his first and foremost anxiety to save the life of his son. There was, therefore, nothing unnatural if Peer Ali did not stop to lodge the F.I.R. while he was rushing his son to the Government Dispensary to avail some immediate medical aid for his injured son. The incident as per the prosecution case occurred at about 7 p.m. and the F.I.R. in question was made at the police station at 8.10 p.m. While insisting upon prompt lodging of F.I.R. some margin has to be given to normal human conduct and traits, such as shock, grief and helplessness etc. In the circumstances, it cannot therefore, be said that F.I.R. in question was lodged with a delay due to lack of knowledge of culprits and details of incident or that the time gap was utilized in manipulation and consultation. In our opinion, there has been no delay in lodging the First Information Report. The star witness for the prosecution is P.W. 3 Arvind Kumar Agnihotri who himself received firearm injuries during the course of incident. From the statements of P.W. 1 Dr. J.P. Mehrotra and P.W. 8 Dr. H.C. Prasad, Radiologist, there is no room for doubt that Arvind Kumar Agnihotri had sustained a firearm injury on his person as is also apparent from the injury report Ex. Ka. 1 and the x-ray report Ex. Ka. 19. This witness stated before the Court that the incident had occurred at about 7 p.m. and at that time he was present near the shop of Ram Kumar Patel. He further stated that as soon as Mohammad Iqbal came out of Gymnasium all the accused persons challenged him and Abdul Salam exhorted his companions to kill him. Ka. 19. This witness stated before the Court that the incident had occurred at about 7 p.m. and at that time he was present near the shop of Ram Kumar Patel. He further stated that as soon as Mohammad Iqbal came out of Gymnasium all the accused persons challenged him and Abdul Salam exhorted his companions to kill him. Mohammad Iqbal ran on the road but fell down near the shop of Ram Kumar Patel as accused Mohar Khan beat him with hockey. The witness further stated that he rushed towards Mohd. Iqbal and challenged the accused persons whereupon Qamrul Zama fired upon him which caused him injuries. Abdul Salam and Qamrul Zama fired one shot each on Mohammad Iqbal. He admitted that Mohammad Iqbal and he himself were studying in the same Intermediate College at Akbarpur. He further admitted that one Shailendra Srivastava was arrested in a case under Section 25 Arms Act on the same day and he and Mohammad Iqbal and Nisar Alam were witnesses of recovery. Merely for the reason that he was studying in the same institute where the deceased was also studying or that he was a co-witness along with the deceased in an Arms Act case, his testimony cannot be discarded on that ground alone particularly when his presence at the scene of occurrence cannot be doubted as he himself received firearm injury on his person. There is nothing on record to indicate that this accused had any axe to grind against the accused persons. It is argued by the learned counsel for the appellants that when two of the accused persons were armed with firearms, it was highly unlikely that this witness would have dared to challenge them, when accused Mohar Khan was giving a beating to Mohammad Iqbal with hockey. This submission of the learned counsel is bereft of any force in view of the fact that it is in his statement that deceased was his co-scholar and there appears to be some affinity between them. Arvind Kumar himself was a young boy and so there was nothing unnatural if in his zeal to save Mohammad Iqbal, he asked the accused persons not to assault him. Arvind Kumar himself was a young boy and so there was nothing unnatural if in his zeal to save Mohammad Iqbal, he asked the accused persons not to assault him. (13) IT was then submitted by the learned counsel for the appellants that as per the own admission of P.W. 3 Arvind Kumar, there were a number of shops in that area and they all were open and shop keepers had also witnessed the incident but none of those shop-keepers has been produced as a witness in the trial court. Non-examination of those shop-keepers would pale into insignificance once the evidence of P.W. 3 and P.W. 4 Mohd. Ali is found reliable and acceptable. It may also be visualized that these shop-keepers were not concerned with the deceased and, therefore, they might have liked to safely keep themselves away from police proceedings or proceedings before the Court. This reasoning gets further support from the statement of P.W. 3 Arvind Kumar that none of the shop-keepers came to remove him and Mohd. Iqbal for medical aid when they were lying injured on the ground. This circumstance itself indicates that the shop-keepers were perhaps scared from fear of accused persons and did not want to involve themselves in any manner whatsoever in this affair. Learned counsel for the appellant tried to make a capital out of this part of the statement of P.W. 3 Arvind Kumar wherein he stated that accused persons had covered their faces with cloth and it has been argued that in such a situation, the chances of witnesses identifying accused persons were too remote. However, the learned counsel failed to notice that in the same breath, this witness had also clearly added but their faces were clearly visible. It is admitted case of the parties that this witness was also a resident of Akbarpur to which place the deceased and accused persons belonged. It is also in the evidence that at the time of incident many shops were open. P.W. 3 Arvind Kumar further stated that at the relevant time there were Diwali Holidays and at the time of incident besides other shops, Jamuna Halwai's shop was also open who was selling sweets, milk etc. and customers were present at his shop. Akbarpur town had electricity. The shop of Jamuna Halwai was situated just in front of Patel Panwala. P.W. 3 Arvind Kumar further stated that at the relevant time there were Diwali Holidays and at the time of incident besides other shops, Jamuna Halwai's shop was also open who was selling sweets, milk etc. and customers were present at his shop. Akbarpur town had electricity. The shop of Jamuna Halwai was situated just in front of Patel Panwala. It is of common knowledge that business is not carried out in darkness and when the town has electricity it was but natural that the shops must be having electric light and as such sufficient light was available at the scene of occurrence for identifying the assailants who were well known to the witnesses from before. It is also of common knowledge that during Diwali time winter sets in and it may be that the accused persons may have wrapped some cloth around their neck and a portion of mouth but it would not mean that they had covered their entire faces so that they could not be identified. We find no force in the above submission of the learned counsel for the appellants that the witnesses had no sufficient opportunity to identify the appellants as the assailants of the deceased. We have thoroughly examined the evidence of P.W. 3 Arvind Kumar Agnihotri, the injured witness and find no infirmity therein. His evidence appears to us to be wholly convincing. Nothing has been elicited in his cross-examination to impeach his testimony and we are of the considered opinion that the prosecution case has been vividly described by this witness, whose presence at the time of incident cannot be doubted as he himself suffered firearm injuries at the hands of accused Qamrul Zama. He has given a succinct version of the assault and the role played by each accused. (14) Apart from the evidence of injured witness, we have also before us the testimony of P.W. 4 Mohd. Ali. He too is a reliable witness and has stated of the entire incident and has also named the present appellants as the assailants of the deceased. He also testified that accused Qamrul Zama fired upon Arvind Kumar causing him firearm injuries. Ali. He too is a reliable witness and has stated of the entire incident and has also named the present appellants as the assailants of the deceased. He also testified that accused Qamrul Zama fired upon Arvind Kumar causing him firearm injuries. Though this witness is a resident of another village but it has come in his evidence that he was having his in-laws in Kasba Akbarpur and on the date of incident he had come to the residence of his in-laws and at the relevant time he was going to the market and was about 50 paces away from the Gymnasium when he witnessed the incident. His evidence has been commented upon as that of a chance witness but merely on that ground his unimpeachable testimony cannot be discarded, especially when he is proved to be an independent witness having no animosity against the accused persons. Learned counsel for the appellants criticized the evidence of this witness by submitting that in cross examination this witness stated that at the time of incident he was going to purchase sweets as some persons were to arrive at his in-laws place in connection with the marriage talks of his brother-in-law but admitted that he did not purchase sweets on that day and therefore the reason given by him of his presence at the scene of occurrence must be held to be doubtful. The witness was not further asked as to why he did not purchase sweets on that night. It may be that when the firing incident occurred in the open market the people must have started running here and there and it has also come in the statement of P.W. 2 Peer Ali that when he reached the place of occurrence after the incident only the shop of Pandit Devi Prasad Halwai was open who also ran away within 2-4 minutes after closing his shop. Therefore, it is clear that after the firing incident the shop keepers pulled their shutters down and therefore, it might be that this witness was left with no occasion to go for the sweets for which he had come in the market. Therefore, it is clear that after the firing incident the shop keepers pulled their shutters down and therefore, it might be that this witness was left with no occasion to go for the sweets for which he had come in the market. Another criticism made by the appellants' counsel on his evidence is that the witness admitted that he remained at the hospital upto 11 p.m. and if he was not related to the deceased and some guests were expected at his in-laws place, it was most unnatural for him to have stayed in the hospital upto that time. Again the cross examiner did not ask the witness as to why he overstayed in the hospital and why he did not return to his in-laws place. There could be more than one reason for his having stayed at the side of the deceased. It may also be possible that the guests who were to arrive at his in-laws place may not have turned up and the witness on humanitarian grounds might have stayed at the hospital in an anxiety to know as to what action the police takes. Therefore, merely for that reason he cannot be characterized as an interested witness nor his evidence can be viewed with any suspicion. The medical evidence on record also fully corroborates the ocular testimony. Appellants Abdul Salam and Qamrul Zama were armed with country-made pistols while appellant. Mohar Khan is alleged to have assaulted the deceased with a hockey. In the post-mortem examination injuries of firearm as well as of blunt object were found on the deceased. Firearm injury was also found on the person of injured Arvind Kumar Agnihotri P.W. 3. The defence suggestion to Dr. Jagdish Prasad Mehrotra P.W. 1 that the injury of Arvind Kumar Agnihotri could be caused by Sooza or nail has been categorically denied by the doctor and the possibility of the said injury having been caused other than by firearm is completely ruled out by X-ray examination of the injured. (15) It was next submitted by the learned counsel for the appellants that so far as appellant Mohar Khan is concerned, he is said to have assaulted Mohd. (15) It was next submitted by the learned counsel for the appellants that so far as appellant Mohar Khan is concerned, he is said to have assaulted Mohd. Iqbal deceased with hockey only with a view to fell him down on the ground and none of the injuries caused by hockey was fatal, accordingly appellant Mohar Khan cannot be held guilty for the offence of murder with the aid of Section 34 of the Indian Penal Code and he could at best be held guilty under Section 325, I.P.C. We find that this submission of the learned counsel has no legs to stand. (16) To apply Section 34, I.P.C. apart from the fact that there should be two or more accused, two factors must also be established 1 Common intention and 2. Participation of accused in the commission of the offence. Under Section 34, I.P.C. a person must be physically present at the actual commission of the crime for the purpose of facilitating or promoting the offence, the commission of which is the aim of the joint criminal venture. One who facilitates the execution of the common design makes himself liable for bringing about a particular result. The existence of common intention can be inferred from the attending circumstances of the case and conduct of the parties and it may not be possible for the prosecution in each and every case to have direct evidence regarding common intention. The section gets attracted when a criminal act is done by two or more persons in furtherance of common intention of all. (17) In the present case, accused Abdul Salam and Qamrul Zama had a strong motive to commit the murder of deceased Mohd. Iqbal. Accused Mohar Khan is the son of mother's sister of accused Qamrul Zama and a friend of accused Abdul Salam. On the date of occurrence, all the three accused persons were standing together and were waiting for Mohd. Iqbal to come out of the Gymnasium. Seeing Mohd. Iqbal, accused Abdul Salam exhorted his companions to catch hold of the deceased and to kill him and when Mohd. On the date of occurrence, all the three accused persons were standing together and were waiting for Mohd. Iqbal to come out of the Gymnasium. Seeing Mohd. Iqbal, accused Abdul Salam exhorted his companions to catch hold of the deceased and to kill him and when Mohd. Iqbal ran all the three accused chased him and accused Mohar Khan gave hockey blows on him whereupon he fell down and thereafter other co-accused persons fired upon him and accused Qamrul Zama also fired upon Arvind Kumar P.W. 3 and thereafter all the accused persons ran away in the same direction with their respective weapons. From these proved facts and circumstances, no other inference is deducible than that all the accused persons had shared common intention to kill Mohd. Iqbal and committed his murder in furtherance of that common intention. The mere fact that the hockey injuries were not fatal will not take out the case of Mohar Khan from the ambit of Section 34, I.P.C. Accordingly, we reject the submission of the learned counsel for the appellants that Mohar Khan is not liable to be convicted under Section 302 read with Section 34, I.P.C. (18) On a careful analysis of evidence on record, we find that the prosecution has succeeded in establishing its case against all the appellants beyond any reasonable doubt and the appeal of the appellants is liable to be dismissed. For the aforesaid reasons and discussion, we maintain the order of conviction and sentence passed by the learned Sessions Judge. Accordingly the appeal is dismissed. The appellants are on bail. They shall be taken into custody and sent to jail forthwith to serve out the sentences awarded by the learned Sessions Judge. (19) A copy of this order shall be sent to C.J.M. concerned for immediate compliance. The C.J.M. is directed to send compliance report to this Court within two months from the date of receipt of copy of this order.