Usha Mehra ( 1 ) RAJ Kumar has assailed the order of his conviction and sentence passed by the learned Additional Sessions Judge, Delhi, thereby convicting him and giving him sentence of rigourous imprisonment for life under. Section 302/34 Indian Penal Code and a fine of Rs. 1000. 00, in default of payment of fine to further undergo simple imprisonment of two years. He has also been sentenced to undergo rigourous imprisonment for one year under Section 324/34 Indian Penal Code and fine of Rs. 500. 00, in default of payment of fine to further undergo simple imprisonment of three months. ( 2 ) RAJ Kumar, appellant has challenged the order of his conviction and sentence on the grounds namely; (1) That his identity was not established; (2) That the role assigned to him was catching hold of the arms of the deceased as well as Tara Chand (Public Witness-7); (3) In the FIR the name of appellant Raj Kumar has not been mentioned. It was mentioned Bille. It has not been proved that Raj Kumar was also known as Bille: (4) The FIR was recorded in hurry. True facts have not been mentioned. Moreover, there is violation of Rule 24 (1) of the Punjab Police Rules as applicable to Delhi. The corresponding entry of FIR was not entered in the Daily Diary. Therefore, it shows that the FIR was recorded subsequently to implicate the appellant. (5) Matin Qureshi the alleged eye witness has not been examined instead prosecution has planted Jugal Kishore (Public Witness-8) as the witness. He has not supported the case of the prosecution; Finally (6) The exortation attributed to the appellant i. e. "maar SAALE KO" does not mean to kill the deceased. At best it can be said to mean "beat the rascal". Therefore, on the basis of this exortation the appellant could not have been sentenced under Section 302 read with Section 34 Indian Penal Code. ( 3 ) IN order to appreciate the points raised by Mr. K. B. Andley counsel for the appellant, let us have a quick glance to the facts of this case. Prosecution s story is unfolded from the statement of Tara Chand (Public Witness-7) recorded as Ex. Public Witness-7/a. It shows that on 5/12/1988 at about 7. ( 3 ) IN order to appreciate the points raised by Mr. K. B. Andley counsel for the appellant, let us have a quick glance to the facts of this case. Prosecution s story is unfolded from the statement of Tara Chand (Public Witness-7) recorded as Ex. Public Witness-7/a. It shows that on 5/12/1988 at about 7. 30 p. m. Sunil son of Shri Ram and Matin Qureshi were having talk while standing towards Nallah at the corner of street No. 42, Beadon Pura, Karol Bagh, Delhi. Lallu @ Dharamvir, Bill son of Pratap, Shashi @ Dari came there at about 7. 45 P. M. Lallu said to Tara Chand that they would teach him a lesson for getting him arrested. Tara Chand had got Lallu arrested on 29/11/1988 (though recorded as 29/11/1986) because of the quarrel started by Lallu @ Dharamvir, r/o Jagjiwan Niwas, Bille son of Pratap and their two companions whom Tara Chand did not know. When this quarrel started, Tara Chand in order to save himself rushed to his house. The following day on the complaint of Tara Chand, Lallu @ Dharamvir was arrested by the Police. He was subsequently released on bail. It is as a consequence of that quarrel that Dharamvir told Tara Chand that he would teach him a lesson for getting him arrested. Bille and Shashi caught hold of Tara Chand by his both arms and Lallu @ Dharamvir inflicted knife blow forcibly on the back side of his right thigh. When Tara Chand in order to save himself ran towards the Arya Samaj Road, Lallu @ Dharamvir said loudly that they would not leave him alive. sunil when tried to caught hold of Bille, Bille and Shashi both in turn caught hold of him and exorted Lallu @ Dharamvir "dekhta KYA HAI MAAR SAALE KO JAAN SE" (Means: What for he was looking. Kill this rascal), On this Lallu @ Dharamvir caused injury to Sunil by giving blow on his neck with the knife which he was holding in his right hand. At this Tara Chand (Public Witness-7) raised alarm hearing which Gopal @ Bobby, brother of Sunil reached there. By this time all the three accused persons succeeded in making escape good. While running these persons threatened by way of brandishing knife. Tara Chand, Public Witness, has seen this occurrence in the light of the electric pole. At this Tara Chand (Public Witness-7) raised alarm hearing which Gopal @ Bobby, brother of Sunil reached there. By this time all the three accused persons succeeded in making escape good. While running these persons threatened by way of brandishing knife. Tara Chand, Public Witness, has seen this occurrence in the light of the electric pole. Sunil was taken to Hospital by his brother Gopal @ Bobby and Tara Chand was taken to Dr. R. M. L. Hospital by his brother Nand Kishore. Doctor declared Sunil brought dead and Tara Chand, Public Witness, was given medical treatment. According to the story of prosecution, Lallu @ Dharamvir and Bille collectively tried to kill Tara Chand and actually killed Sunil by making a murderous assault. ( 4 ) ON the basis of the Rukka Ex. Public Witness-7/a, FIR was recorded and the investigation was entrusted to Insp. R. P. Gautam of P. S. Karol Bagh. Prosecution examined as many as 34 witnesses whereas defence examined one witness. The testimony of eye witness Tara Chand (Public Witness-7) is very material for the purposes of determination this appeal. However, prosecution also examined Gopal (Public Witness-1), brother of deceased Sunil, Nand Kishore (Public Witness-6) brother of Tara Chand (Public Witness-7), Jugal Kishore (Public Witness-8), Head Constable Ajit Singh, the photographer (Public Witness-9), Constable Jagdish Narain (Public Witness-12), Dr. L. T. Ramani of Civil Hospital (Public Witness-13) who conducted the postmortem, SI Gopi Chand (Public Witness-16), SI Laxmi Chand (Public Witness-18), Smt. Shanti Devi (Public Witness-20), Puran Mal (Public Witness-25), Record Clerk, Dr. R. M. L. Hospital who produced the M. L. C. of deceased Sunil as Exhibit Public Witness-25/a, Inspector R. P. Gautam (Public Witness-33) I. O. of this case, Mrs. Deepa Sharma, the then Metropolitan Magistrate (Public Witness-34 ). Shashi @ Dari, son of Tek Chand (DW-1 ). The evidence of Shashi @ Dari (DW-1), son of Tek Chand is also very material. The rest are formal witnesses. ( 5 ) THE star witness of prosecution is Tara Chand (Public Witness-7 ). He is the author of the FIR. In his statement Exhibit Public Witness-7/a the basis of FIR he in no uncertain words stated that on 29th November, 1988 Lallu u @ Dharamvir and Bille son of Pratap, r/o 100 Quarters, Karol Bagh had come to quarrel, with two other persons whom he did not know. He is the author of the FIR. In his statement Exhibit Public Witness-7/a the basis of FIR he in no uncertain words stated that on 29th November, 1988 Lallu u @ Dharamvir and Bille son of Pratap, r/o 100 Quarters, Karol Bagh had come to quarrel, with two other persons whom he did not know. The fact that Bille is the son of Pratap and that Tara Chand (Public Witness-7) knew him from before is established by this fact. The same Bille son of Pratap caught hold him on 5/12/1988 and also caught hold of Sunil, the deceased. Raj Kumar @ Bille the appellant herein is the son of Pratap. It was not only proved from the statement of Tara Chand (Public Witness-7) but also from the. statement made by Raj Kumar, the appellant herein in the Court when his statement was recorded pleading not guilty and claimed trial. In that statement he gave the name of his father as Pratap, r/o Gali No. 1 Karol Bagh, Delhi. Not only that when the statement under Section 313 Criminal Procedure Code was recorded it was put to him "there is in evidence against you that you along with co-accused came there and Raj Kumar @ Bille caught Tara Chand while Dharamvir alias Lallu stabbed him at his back of right leg saying that you would teach him a lesson for getting you arrested. What have you to say? The answer was "it is incorrect. " Nowhere he denied that he was not known as Bille or that Tara Chand (Public Witness-7) did not know him from before. Reading of the evidence of Tara Chand (Public Witness-7) read with Exhibit Public Witness-7/a shows Public Witness-7 knew appellant Raj Kumar @ Bille, son of Pratap, r/o 100 Quarters, Karol Bagh, from before. That is why whensubjected to cross examination by this appellant Tara Chand in no uncertain words reiterated that this appellant Raj Kumar @ Bille was involved in the incident which took place on 5/12/1988. He admitted that in his area there were number of Bille as well as persons by the name of Raj Kumar. But the accused Raj Kumar @ Bille son of Pratap was involved in the incident which injured Tara Chand and killed Sunil. Tara Chand gave the address and parentage of Bille which even the appellant admitted as pointed out above. But the accused Raj Kumar @ Bille son of Pratap was involved in the incident which injured Tara Chand and killed Sunil. Tara Chand gave the address and parentage of Bille which even the appellant admitted as pointed out above. Therefore, the identity of Bille @ Raj Kumar was not in doubt at any stage. Testimony of Public Witness-7 read with Exhibit Public Witness-7/a clearly establishes the identity of the appellant that he was also known as Bille, son of Pratap. It would also not be correct to say that the fact that Raj Kumar is also known as Bille was not put up to the accused when his statement under Section 313 Criminal Procedure Code was recorded. Admittedly, a direct question had not been asked. Fact remains that question as recorded clearly shows that prosecution had indicated Raj Kumar @ Bille while asking him the question and which fact he did not deny. Therefore, it cannot be said that identity of the appellant was in doubt. Raj Kumar was known from before has also been established by the testimony of Smt. Shanti Devi (Public Witness-20) when she stated that Lallu and Raj Kumar had caused injury to her son Tara Chand about three years back. She reported the matter to police when the accused Lallu and Raj Kumar had come to her house to give threat to Tara Chand. Tara Chand was not at home at that time. On the dates of occurrence Raj Kumar and Lallu came to her house at about 7. 00 P. M. At that time there were one or two more persons with them. According to her when they came Tara Chand was standing near an electric pole in the street near the Meat Shop. She was sitting on a Takhat when three or four persons passed from that place and were going towards electric pole. She was the one who informed the Control Room when the quarrel took place on 29/11/1988. She had seen Raj Kumar the present appellant along with Lallu @ Dharamvir on 29/11/1988. She was not subjected to cross-examination on this. part of her statement. Nor even a suggestion was given that he had not given any threat on 29/11/1988. So it can safely be concluded that Raj Kumar @ Bille was the one who alongwith Lallu @ Dharamvir threatened Tara Chand on 29/11/1988. She was not subjected to cross-examination on this. part of her statement. Nor even a suggestion was given that he had not given any threat on 29/11/1988. So it can safely be concluded that Raj Kumar @ Bille was the one who alongwith Lallu @ Dharamvir threatened Tara Chand on 29/11/1988. Tara Chand in his statement Exhibit Public Witness-7/a clearly mentioned that Bille son of Pratap was involved in the incident of 5/12/1988 and Public Witness-7 knew him from before. Therefore, the identity of appellant Bille @ Raj Kumar, Son of Pratap stood established from the material available on record. ( 6 ) MR. K. B. Andley contended that Tara Chand had stated on oath that appellant exorted "maar SAALE KO". Therefore, at best it could mean "teach him a lesson". In such an eventuality he could not have been sentenced under Section 302/34 Indian Penal Code. To support his contention he placed reliance on the decision of Supreme Court in the case of Ajay Sharma v. State of Rajasthan, 1999 SCC (Criminal) 74. Admittedly the role assigned by prosecution to the appellant was catching hold of the arms of Tara Chand the injured, (Public Witness-7) and also of Sunil the deceased. Appellant exorted to the main accused Dharamvir as per Exhibit Public Witness-7/a "dekhta KYA HAI MAAR SAALE KO JAANSE". But Tara Chand when appeared in the Court as Public Witness-7 he said that the exortation was "dekhta KYA HAI MAAR SAALE KO". On this Dharamvir stabbed Sunil at his back and head. There is a vast difference between the two versions given by Public Witness-7 i. e. the exortation as mentioned in Ex. Public Witness-7/a and in the testimony of Public Witness-7 while appearing in the witness box. If the exortation was "maar SAALE KO JAANSE" then the intention was to kill Sunil. But if the exortation as stated by Public Witness-7 in the Court was "maar SAALE KO" then it would mean "teach the rascal a lesson". If the exoration was only to teach him lesson then of course the appellant cannot be held guilty under Section 302 read with Section 34 Indian Penal Code. Since Tara Chand appearing as Public Witness-7 stated that exortation was to the effect that "maar SAALE KO", this shows that there was no common intention to kill Sunil. If the exoration was only to teach him lesson then of course the appellant cannot be held guilty under Section 302 read with Section 34 Indian Penal Code. Since Tara Chand appearing as Public Witness-7 stated that exortation was to the effect that "maar SAALE KO", this shows that there was no common intention to kill Sunil. The incident of 5/12/1988 was a prelude to the incident which took place on 29/11/1988. Sunil was not the target of the accused person. They were taking revenge from Public Witness-7 Tara Chand. Quarrel on 29/11/1988 had taken place between Dharamvir and Tara Chand (Public Witness-7 ). On the complaint of Tara Chand, Dharamvir was arrested. So if at all there was any intention, it could have been to kill Tara Chand and not Sunil. The only overt act attributed to appellant was that he caught hold of the arms of Tara Chand and of Sunil the deceased. Dharamvir stabbed Sunil for which there could not have been any common intention. It cannot be said that the appellant had known that Dharamvir was carrying a knife. The exortation was only to teach him a lesson and not to kill him. Therefore, the conviction of the appellant under Section 302/34 Indian Penal Code cannot be sustained. Moreover, to attract the provisions of Section 34 Indian Penal Code, i. e. of common intention from the facts on record has not been proved. It cannot be said that the appellant had known that Dharamvir was going to murder Sunil. From the evidence of the eye witness account, the appellant s role was catching hold of the arms whereas the blow was inflicted by Dharamvir @ Lallu to Sunil as a result of which he died. ( 7 ) THAT Section 34 lays down a principle of joint liability in the doing of a criminal act. The essence of that liability is to be found in the existence of common intention animating the accused leading to the doing of a criminal act in furtherance of such intention. ( 8 ) THE distinct feature of Section 34 is the element of participation in action. The common intention implies acting in concert, existence of pre-arranged plan which is to be proved either from conduct or from circumstances or from any incriminating facts. It requires a pre-arranged plan and it pre-supposes prior concert. ( 8 ) THE distinct feature of Section 34 is the element of participation in action. The common intention implies acting in concert, existence of pre-arranged plan which is to be proved either from conduct or from circumstances or from any incriminating facts. It requires a pre-arranged plan and it pre-supposes prior concert. There has to be prior meeting of minds. From the facts on record it cannot be said that there was prior meeting of mind, pre-concert and pre-determination. From the conduct of these persons which has been elaborated by Tara Chand (Public Witness-7) it cannot be said that they had pre-plan to murder Sunil. If at all they had come there again it was to teach lesson to Tara Chand because of the quarrel which took place on 29/11/1988. Sunil suddenly tried to stop Bille from running after Tara Chand who rushed towards Arya Samaj Road, his enraged the appellant. He, therefore, caught hold of the arms of Sunil and exorted Dharamvir to teach him a lesson because he obstructed him from chasing Tara Chand. On this the accused Dharamvir gave knife blow which ultimately killed Sunil. These facts do not indicate that there was prior meeting of mind or pre-determination or pre-concert for murdering Sunil or for that matter Tara Chand (Public Witness-7) Therefore, Mr. K. B. Andley rightly contended that the appellant could not have been convicted and sentenced under Section 302/34 Indian Penal Code. ( 9 ) AS regards the objection that FIR was subsequently recorded and there is a violation of Rule 24 (1) of Punjab Police Rules, we find no substance in this submission. For the reasons stated above, we set aside the conviction and sentence of the appellant under Section 302/34 Indian Penal Code but so far as his conviction and sentence under Section 324/34 Indian Penal Code is concerned that is maintained. Since the appellant has already undergone imprisonment under Section 324/34 Indian Penal Code, therefore, if he is not required in any other case, he be set at liberty forthwith. Order accordingly. ( 10 ) THE order be communicated to the, appellant through the Superintendent, Central Jail, Tihar.