JUDGMENT 1. - These three criminal appeals u/s. 374 Cr.P.C., one by accused appellant Shukia, another by accused appellant Jagdish in his representative capacity and yet another by appellant Jagdish through Jail arise out of the judgment and order dated 13.10.2000 passed by the Sessions Judge, Bharatpur, thereby convicting the accused appellants in the manner stated below: Appellant Shukla U/s. 302 IPC Life imprisonment with a fine of Rs. 5,000/-, in default thereof, to further undergo one year's rigorous imprisonment. Appellant Jagdish U/s. 302/34 IPC Life imprisonment with a fine of Rs. 5,000/-, in default thereof, to further undergo one year's rigorous imprisonment. 2. Since all the three appeals arise out of one and the same judgment, they are being decided by a common judgment. 3. On 25.12.1996, PW-1 Laxmi Narain lodged a report, Ex.P/1 at Police Station, Kotwali, Bharatpur, alleging therein that on the fateful day at about 7.30 p.m. when his father Revati Prasad had gone to the shop of Pathwari, accused and their associates, on account of previous enmity, started belabouring him. The complainant alleged that when he himself went there to purchase peanuts, he saw his father being beaten at the hands of accused and their friends. He clarified that accused Shukla inflicted a knife blow at the throat of his father. Accused Jagdish and Vishnu were also present there. The injured was then removed to the Hospital and he scummbed to the injury soon after reaching the hospital. In the end, the complainant stated that incident was witnessed by his mother Mst. Shanti Devi, Shambhu Dayal and numerous other persons. 4. On the basis of above report, police registered a criminal case vide FIR, Ex.P/2 and proceeded with the investigation. In the course of investigation, police prepared the site plan Ex.P/4 with its description and the inquest report Ex.P/3. The blood stained clothes of the deceased were seized vide memo Ex.P/5. The blood stained soil and dry blood were seized vide memo Ex.P/6. Accused Shukla and Jagdish were apprehended vide memos Exs.P/9 and P/10 respectively. Accused Shukla "furnished information Ex.P/17 u/s. 27 of the Evidence Act regarding recovery of razor. Pursuant to the information, police recovered one Razor (Ustra) at the instance of accused Shukla vide memo Ex.P/13. 5. PW-13 Dr. Banaya Singh conducted autopsy on the dead body and prepared post mortem report, Ex.P/16. Accused Shukla "furnished information Ex.P/17 u/s. 27 of the Evidence Act regarding recovery of razor. Pursuant to the information, police recovered one Razor (Ustra) at the instance of accused Shukla vide memo Ex.P/13. 5. PW-13 Dr. Banaya Singh conducted autopsy on the dead body and prepared post mortem report, Ex.P/16. On dissection of body, the doctor found the following injuries:- Incised wound with clot edges and margins clear cut, well defined and smooth and regular of size 15cm x 3.5cm x muscle deep on Lt. side of neck and in the anterior region of neck, thyroid cartilage is cut of size 3cm x 2.5cm x through & through and trachea is cut of 3cm x 2.5cm x upto luman with clots (anterior wall cut). There is nut (sic cut) of neck muscles of both sides sternomastoid, sterno-hyoid, thyrohyoid omohyoid, thyroid cartidge both side muscles of neck and front of neck cut. There is cut through & through of right side external carotid vessels and external Jugular vein, there is cut of branches and external carotid antery with Superior thyroid artery and its branches. Incised wound extends from Rt. side neck at the level of submandibuller angle region crossing transversely at thy roid level cut and trachea cut underneath then going upto 4cm distance to left side neck and 3cm below the ramus of Lt. mandibular mid ⅓. Large amount of clotted blood present in around of neck. This injury is caused by sharp weapon." 6. In the opinion of Dr. Banaya Singh the cause of death of deceased was acute haemmorhagic shock brought out as a result of Rt. side vessels and others of neck cut as mentioned in the PMR caused by A.M. sharp weapon injuries to neck region which was sufficient to cause death in the ordinary course of nature. 7. Having completed entire formalities as to the investigation, the police submitted a charge sheet against the accused persons in the Court of Chief Judicial Magistrate, Bharatpur. The learned Magistrate having found the case exclusively triable by the Court of Sessions, committed the case to the Court of Sessions. 8. The learned trial Court, on the basis of evidence and material collected during investigation and placed before it and after hearing the counsel for the parties, framed charges against the accused appellants. The accused denied the charges and claimed trial. 9. 8. The learned trial Court, on the basis of evidence and material collected during investigation and placed before it and after hearing the counsel for the parties, framed charges against the accused appellants. The accused denied the charges and claimed trial. 9. In order to prove its case, the prosecution examined as many as 14 witnesses and got exhibited some documents. After prosecution evidence, the accused were examined u/s. 313 Cr.P.C. In their explanation, the accused stated about their false implication. Accused Jagdish took the plea of alibi. In defence DW-1 Mangulal and DW-2 Kanhaiyalal were examined. 10. At the conclusion of trial and after hearing counsel for the parties, the learned trial Judge held accused, appellant Shukla guilty of having committed offence u/s. 302 IPC, while accused Jagdish was held guilty u/s. 302 IPC with the aid of section 34 IPC for sharing common intention and accordingly sentenced them in the manner stated hereinabove. Hence the present appeals against conviction. 11. We have heard learned counsel appearing for the accused appellants, learned Public Prosecutor and the counsel appearing for the complainant and gone through the judgment under appeal and the evidence on record. 12. In the written report, Ex.P/1, the complainant Laxmi Narain PW-1 has named himself, PW-3 Mst. Shanti, his mother (wife of the deceased) and PW-3 Shambhu Dayal, his maternal uncle as the persons who have witnessed the incident. The prosecution has examined one more person named Bhagwan Singh, PW-11 (brother of the complainant) as an eye witness of the incident. PW-1 Laxmi Narain has deposed in his statement that on 25.12.1996 at about 7.00-7.30 p.m. accused Jagdish, Shukla, Vishnu and 2-3 others were sitting at the terrace of Jagdish and were abusing his father and his family members. Thereafter, his father went to have cigarette near the shop of Pathwari. Accused Shukla, Vishnu, Jagdish and 2-3 others followed his father. There-upon, he, his mother Shanti Devi, his maternal uncle Shimbhu and his brother Bhagwan Singh also followed them. When they were at a distance of 15-20 steps, the accused were belabouring the complainant's father near Pathwari Choraha. All the three named accused were belabouring his father. According to this witness, when they proceeded further, the accused shackled them. The incident took place in their presence. The witness further stated that accused gave him legs and fists blows and made his mother to fall. All the three named accused were belabouring his father. According to this witness, when they proceeded further, the accused shackled them. The incident took place in their presence. The witness further stated that accused gave him legs and fists blows and made his mother to fall. He stated that accused Jagdish caught hold of his father and asked Shukla to take out knife from his pocket and chop off the neck of his father. Thereupon, Shukla choppsed off the neck of his father and escaped from the scene. 13. PW-2 Mst. Shanti Devi has stated that there is a distance of two houses in between the houses of accused Jagdish and the house of complainant party. She has deposed similar to what his son PW-1 Laxmi Narain has deposed. Likewise, PW-3 Shambhu Dayal, maternal uncle of PW-1 Laxmi Narain has also given similar statement as that of PWs-1 and 2 PW-11 Bhagwan Singh, brother of PW-1 Laxmi Narain has also supported the statements of above named three eye witnesses. He has deposed that when they tried to save the deceased, accused Vishnu caught hold of him, his brother and his mother. It may be stated that PW-4 Devi Singh and PW-5 Bhagwandas were also examined as eye witnesses of the incident, but both of them have not supported the prosecution version and stood hostile. 14. On scrutiny of evidence of the eye witnesses, it is evident that deceased sustained one knife injury on his neck at the hands of accused appellant Shukla. True it is that two independent witnesses PW-13 and PW-5 have not supported the prosecution case, but this fact alone, in our considered view, cannot be said to have adverse effect on the prosecution case, particularly in view of the fact that the evidence of the eye witnesses to the extent that appellant Shukla inflicted one knife blow on the neck of deceased stands in corroboration with the medical evidence. The post-mortem report, Ex.P/16 also speaks about the only injury on the neck of deceased by sharp edged weapon and that injury proved fatal. PW-13 Dr. Banay Singh, who conducted autopsy has deposed that this injury was sufficient in the ordinary course of nature to cause death. The post-mortem report, Ex.P/16 also speaks about the only injury on the neck of deceased by sharp edged weapon and that injury proved fatal. PW-13 Dr. Banay Singh, who conducted autopsy has deposed that this injury was sufficient in the ordinary course of nature to cause death. In his opinion, the cause of death was acute hemorrhagic shock brought out as a result of right side vessels and others of neck cut as mentioned in the post mortem report caused by A.M. sharp weapon injury to neck region. In this view of the matter, -be concur with the conclusion of the trial Judge to the extent that it was accused appellant Shukla who inflicted one knife blow on the neck of deceased, which proved fatal and the accused met homicidal death as a consequence of that injury. 15. It must also be observed that the manner in which investigation has been done smell foul. The eye witnesses in their statements u/s. 161 Cr.P.C. made before the investigating officer have stated about the use of knife by appellant Shukla. We fail to understand as to how the Investigating Officer has recovered razor (Ustra) on the information of accused Shukla. The inference that can be deduced would be that the Investigating Officer has tried his level best to help the accused in the best way he could have done. The razor recovered had no blood stains and the 1. 0. failed to send the recovered razor to the Forensic Science Laboratory for its examination. The razor recovered was not used in the commission of crime and hence its recovery is of no consequence. 16. The defence witnesses, namely, DW-1 Mangulal and DW-2 Kanhaiyalal have simply deposed that a person came staggering and fell down in front of the house of Mangulal. These witnesses noticed blood on his cloths. These defence witnesses have not been able to state as to how the deceased sustained injury. In our view DWs 1 and 2 cannot be said to be the witnesses of incident and therefore, their testimony is of no help to the accused. 17. These witnesses noticed blood on his cloths. These defence witnesses have not been able to state as to how the deceased sustained injury. In our view DWs 1 and 2 cannot be said to be the witnesses of incident and therefore, their testimony is of no help to the accused. 17. Having concluded that it was accused appellant Shukla who inflicted one injury on the vital part of the body of deceased which proved fatal, the question which emerges for our consideration is as to what offences in the facts and circumstances of the case and in the light of the evidence, is made out against him. 18. Learned counsel appearing for accused appellant Shukla vehemently contended that as per the prosecution case, appellant Shukla inflicted only one blow. There is no allegation that he repeated the blows. According to him, it cannot be said that appellant had any intention to cause death of the deceased. Therefore, in a case of solitary blow without there being any intention to cause death, the accused cannot be convicted u/s. 302 IPC. In this back-ground, learned counsel submitted that conviction of appellant Shukla u/s. 302 IPC is not sustainable. In the alternative, learned counsel submitted that at the most it can be said to be case of culpable homicide not amounting to murder, bringing the offence u/s. 304 Part II IPC. 19. We have considered the above argument. While dealing with a case of single injury, the Hon'ble Supreme Court in Jagrup Singh v. State of Haryana, 1981 SCC (Cr.) 768 observed that there is no justification for the assertion that the giving of a solitary blow on a vital part of the body resulting in death must always necessarily reduce the offence to culpable homicide not amounting to murder punishable and Section 304, Part II of the Code. If a man deliberately strikes another on the head with a heavy log of wood or an iron rod or even a lathi so as to cause of fracture of skull he must, in the absence of any circumstances negativing the presumption, be deemed to have intended to cause death of the victim or such bodily injury as is sufficient to cause death. The whole thing depends upon the intention to cause death, and the case may be covered by either clause Firstly or Clause Thirdly. The whole thing depends upon the intention to cause death, and the case may be covered by either clause Firstly or Clause Thirdly. The nature of intent on must be gathered from the kind of weapon used, the part of the body hit, the amount of force employed and the circumstances attendant upon the death. 20. The Apex Court again had an opportunity to examine the issue in the case of State of Karnataka v. Vedanayagam, 1995 Cr.L.R. (SC) 69 and observed that it is fallacious to contend that wherever there is a single injury only a case of culpable homicide is made out irrespective of other circumstances. 21. The scope of Clause Thirdly of Section 300 IPC had been the subject matter of decision of the Apex Court in Virsa Singh v. State of Punjab, 1958 SCR 1495 and on analysing clause thirdly, it was held in the case as under: "Firstly, it must establish, quite objectively, that a bodily injury is present, Secondly, the nature of the injury must be proved; these are purely objective investigations, Thirdly, it must be proved that there was an intention to inflict that particular bodily injury, that is to say, that it was not accidental or unintentional, or that some other kind of injury was intended, Once these three elements are proved to be present, the enquiry proceeds further and, Fourthly, it must be proved that the injury of the type just described made up of the three elements set out above is sufficient to cause death in the ordinary course of nature. This part of the enquiry is purely objective and inferential and has nothing to do with the intention of the offender." 22. As to how the intention is to be inferred even in a case of single injury, it was further held by their Lordships:- "The question is not whether the prisoner intended to inflict a serious injury or a trivial one but whether he intended to inflict the injury that is proved to be present. If he can show that he did not, or if the totality of the circumstances justify such an inference, then, of course, the intent that the section requires is not proved. But if there is nothing beyond the injury and the fact that the appellant inflicted it, the only possible inference is that he intended to inflict it. If he can show that he did not, or if the totality of the circumstances justify such an inference, then, of course, the intent that the section requires is not proved. But if there is nothing beyond the injury and the fact that the appellant inflicted it, the only possible inference is that he intended to inflict it. Whether he knew of its seriousness, or intended serious consequences, is neither here nor there. The question, so far as the intention is concerned, is not whether he intended to kill, or it inflict an injury of a particular degree of seriousness, but whether he intended to inflict the injury in question; and once the existence of the injury is proved the intention to cause it will be presumed unless the evidence or the circumstances warrant an opposite conclusion. But whether the intention is there or not is one of the fact and not one of law. Whether the wound is serious or otherwise, and if serious, how serious, is a totally separate and distinct question and has nothing to do with the question whether the prisoner intended to inflict the injury in question." 23. In the case at hand, undisputely, appellant Shukla inflicted only one injury by sharp weapon on the person of deceased. The part of the body selected for causing injury was the neck of deceased. A glance at the post mortem report shows that there was incised wound of the size 15cm x 3.5cm x muscle deep on left side of neck and in the anterior region of neck. Thyroid cartilage was found cut through and through. Trachea, neck muscles of both sides, external carotid vessels and external Juglar vein were also found cut. The doctor who conducted autopsy on the dead body has categorically deposed that a person sustaining such an injury would not be able to move few steps and that this injury on the neck of deceased was sufficient in the ordinary course of nature to cause death. In view of the nature of injury whereby important right side external carotid vessels and external Jugular veins were cut and when the doctor opined that death was caused as a result of acute hemorrhagic shock brought out as a result of Rt. In view of the nature of injury whereby important right side external carotid vessels and external Jugular veins were cut and when the doctor opined that death was caused as a result of acute hemorrhagic shock brought out as a result of Rt. side vessels and others of neck cut as mentioned in the post mortem report, undoubtedly it can be reasonably inferred therefrom that such a solitary injury inflicted upon the deceased was sufficient to cause death in the ordinary course of nature. This circumstance would show that appellant Shukla intentionally inflicted the injury and the infliction of such injury would indicate such a state of mind of appellant-Shukla that he aimed and inflicted the injury with a deadly weapon. In the absence of evidence or reasonable explanation to show that appellant Shukla did not intend to inflict injury by knife on the neck of deceased with that degree of force sufficient to cut the important artery vein and vessels, it would be perverse to conclude that he did not intend to inflict the injury that he did. When once the ingredient "intention" is established then the offence would be murder as the intended injury was sufficient in the ordinary course of nature to cause death. In this view of the matter, the inevitable conclusion would be that Appellant Shukla committed the offence of murder and not culpable homicide not amounting to murder. The trial Judge was thus right in convicting appellant Shukla for offence u/s. 302 IPC. We find support from a decision of the Apex Court in Abdul Waheed Khan v. State of A.P., (2002) 7 SCC 175 . In this case their Lordships of the Supreme Court relying upon a decision of the Apex Court in Virsa Singh v. State of Punjab (supra) and other cases observed: "These observations of Vivian Bose, J. have become locus classicus. The test laid down by Virsa Singh case for the applicability of clause "thirdly" is now ingrained in our legal system and has become part of the rule of law. The test laid down by Virsa Singh case for the applicability of clause "thirdly" is now ingrained in our legal system and has become part of the rule of law. Under Clause thirdly of Section 300 IPC, culpable homicide is murder, if both the following conditions are satisfied i.e. (a) that the act which causes death is done with the intention of causing death or is done with the intention of causing a bodily injury; and (b) that the injury intended must be proved that there was an intention to inflict that particular bodily injury which, in the ordinary course of nature, was sufficient to cause death viz., that the injury found to be present was the injury that was intended to be inflicted. Their Lordships then observed:- "Thus according to the rule laid down in Virsa Singh case even if the intention of the accused was limited to the infliction of a bodily injury sufficient to cause death in the ordinary course of nature, and did not extend to the intention of causing death, the offence would be murder. Illustration (c) appended to Section 300 clearly brings out this point." 24. We now proceed to decide the question whether conviction of appellant Jagdish u/s. 302/34 IPC is sustainable or not. The learned trial Court, on appreciation of evidence, came to a conclusion that appellant Jagdish caught hold of deceased Rewati Prasad and having made available sharp edged weapon to appellant Shukla asked him to chop off the neck of deceased and in this way accused Jagdish shared a common intention with appellant Shukla in respect of ultimate criminal act. 25. Section 34 IPC recognises principle of vicarious liability in criminal jurisprudence. It makes an accused liable for the ultimate criminal act done by several co-accused persons in furtherance of common intention of all of them. In other words, it makes a person liable for action of an offence not committed by him but by another person with whom he shared the common intention. It is a rule of evidence and does not create a substantive offence. To attract Section 34 IPC, overt act is needed on the part of an accused if he shares the common intention with others in respect of ultimate criminal act which may be done by anyone of the accused sharing such intention. 26. It is a rule of evidence and does not create a substantive offence. To attract Section 34 IPC, overt act is needed on the part of an accused if he shares the common intention with others in respect of ultimate criminal act which may be done by anyone of the accused sharing such intention. 26. In Suresh v. State of U.P., (2001) 3 SCC 673 , their Lordships of the Apex Court while considering the scope and applicability of Section 34 IPC made an elaborate discussion in paras 21 to 25 of the judgment which may be reproduced here below: "Obviously Section 34 is not meant to cover a situation which may fall within the fictitiously concocted section caricatured above. In that concocted provision the accused need not do anything because the act done by the principal accused would nail the co-accused also on the ground that such act was done by that single person in furtherance of the common intention of all the several persons. But Section 34 is intended to meet a situation wherein all the co-accused have also done something to constitute the commission of a criminal act." (Para 21) "Even the concept of presence of the co-accused at the scene is not a necessary requirement to attract Section 34, e.g. the co-accused can remain a little away and supply weapons to the participating accused either by following or by catapulting them so that the participating accused can inflict injuries on the targeted person. Another illustration, with advancement of electronic equipment can be elched like this: One of such persons, in furtherance of the common intention, overseeing the actions from a distance through binoculars can give instructions to the other accused through mobile phones as to how effectively the common intention can be implemented. Another illustration, with advancement of electronic equipment can be elched like this: One of such persons, in furtherance of the common intention, overseeing the actions from a distance through binoculars can give instructions to the other accused through mobile phones as to how effectively the common intention can be implemented. We do not find any reason why Sec.34 cannot apply in the case of those two persons indicated in the illustrations." (Para 22) "Thus to attract Section 34 IPC two postulates are indispensable: (1) The criminal act (consisting of a series of acts) should have been done, not by one person, but more than one person, (2) Doing of every such individual act cumulatively resulting in the commission of criminal offence should have been in furtherance of the common intention of all such persons." (Para 23) "Looking at the first postulate pointed out above, the accused who is to be fastened with liability on the strength of Section 34 IPC should have done some act which has nexus with the offence. Such an act need not be very substantial, it is enough that the act is only for guarding the scene for facilitating the crime. The act need not necessarily be overt, even if it is only a covert act it is enough, provided such a covert act is proved to have been done by the co-accused in furtherance of the common intention. Even an omission can, in certain circumstances, amount to an act. This is the purport of Section 32 IPC. So the act mentioned in Section 34 IPC need not be an overt act, even an illegal omission to do a certain act in a certain situation can amount to an act, e.g. a co-accused, standing near the victim face to face saw an armed assailant nearing the victim from behind with a weapon to inflict a blow. The co-accused, who could have alerted the victim to move away to escape from the onslaught deliberately refrained from doing so with the idea that the blow should fall on the victim. Such omission can also be termed as an act in a given situation. Hence an act, whether overt or covert, is indispensable to be done by a co-accused to be fastened with the liability under the section. Such omission can also be termed as an act in a given situation. Hence an act, whether overt or covert, is indispensable to be done by a co-accused to be fastened with the liability under the section. But if no such act is done by a person, even if he has common intention with the others for the accomplishment of the crime, Section 34 IPC cannot be invoked for convicting that person. In other words, the accused who only keeps the common intention in his mind, but does not do any act at the scene, cannot be convicted with the aid of Section 34 IPC." (Para 24). "There may be other provisions in the IPC like Section 120- B or Section 109 which could them be invoked to catch such non-participating accused. Thus participation in the crimes in furtherance of the common intention is a sine qua non for Section 34 IPC. Exhortation to other accused, even guarding the scene etc., would amount to participation. Of course, when the allegation against an accused is that he participated in the crime by oral exhortation or by guarding the scene the Court has to evaluate the evidence very carefully for deciding whether that person had really done any act". (Para 25) 27. Keeping in mind the above settled position as to the scope and applicability of Section 34 IPC, we have to very carefully evaluate the evidence available on record. The only allegation against appellant Jagdish is that he asked accused Shukla to take out knife from his pocket and to chop off the neck of deceased. This allegation came to be levelled against Jagdish for the first time in the course of evidence before the Court. The four eye witnesses, namely PW-1 Laxmi Narain, PW-2 Mst. Shanti, PW-3 Shambhu Dayal and PW- 11 Bhagwan Singh have, in their statements, deposed that accused Jagdish ordered appellant Shukla to take out knife from his pocket and to chop off the neck of the deceased. In addition to these four eye witnesses, two more were indicted as the persons to have witnessed the incident. These two witnesses, PW-4 Devi Singh and PW-5 Bhagwandas Khandelwal have not supported the prosecution case and accordingly declared hostile. In addition to these four eye witnesses, two more were indicted as the persons to have witnessed the incident. These two witnesses, PW-4 Devi Singh and PW-5 Bhagwandas Khandelwal have not supported the prosecution case and accordingly declared hostile. It is worthy to notice that all the four eye witnesses have kept themselves confined by stating only to the extent "accused Jagdish caught hold of deceased and told Shukla to take out knife from his pocket and chop off the neck of deceased." 28. With a view to find out truth as regards allegation of these four eye witnesses against appellant Jagdish we have adverted to the other evidence available on record. A glance at the written report, Ex.P/1 lodged by PW- 1 Laxmi Narain, son of the deceased speaks about the overtact of the only accused Shukla and there is nothing against either appellant Jagdish or co-accused Vishnu attributing any role to them, except their mere presence at the scene at the time of incident. That apart, there are certain omissions in the written report about the eye witnesses being belaboured at the hands of the accused and also about the deceased having been caught by accused Jagdish. We find these omissions even in the statements of these eye witnesses recorded u/s. 161 Cr.P.C. in the course of investigation. Thus, evidently the allegation against appellant Jagdish that he caught hold of deceased and then ordered appellant Shukla to take out knife from his pocket and chop off the neck of deceased does not find place in the report Ex.P/1, nor such statement was made by any of these four eye witnesses before the Investigating Officer when their statements were first recorded. Therefore, making such allegation against appellant Jagdish for the first time in the Court raises some doubts as to the veracity of the said fact. In this view of the matter we think it is not safe to rely upon the evidence of these eye witnesses who have made improvement as to the participation of accused Jagdish for the first time before the Court. While holding so, we have borne in mind the fact that all these four eye witnesses are very closely related to the deceased. 29. While holding so, we have borne in mind the fact that all these four eye witnesses are very closely related to the deceased. 29. If this part of the evidence of the eye witnesses as against appellant Jagdish is to be excluded then, in our considered view, there is no sufficient material to establish meeting of minds between the accused persons to commit murder of deceased. The only fact that stands proved is the presence of appellant Jagdish at the time and place of incident. However, mere presence at the scene or at the time of crime in the absence of other evidence, direct or circumstantial, is not sufficient to hold him guilty with the aid of Section 34 IPC, unless the prosecution is able to establish, on facts, sharing of common intention of appellant Jagdish with appellant Shukla. 30. From what has been discussed above, there is nothing available on record to draw an inference that appellant Jagdish was present at the scene or at the time of crime with the intention of causing death of the deceased and that such intention was known to the appellant, much less shared by him. Simply because appellant Jagdish was present at the scene would not necessarily lead to an inference that he accompanied accused Shukla with the intention of causing death of the deceased. An inference as to appellant Jagdish having shared with accused Shukla a common intention of causing the murder of deceased cannot be drawn. Therefore, the conviction of appellant Jagdish u/s. 302/34 IPC cannot be sustained and must be set aside. 31. In the result, the appeal filed by appellants-Shukla and Jagdish so far it relates to appellant Shukla, stands dismissed. The conviction of appellant- Shukla u/s. 302 IPC and the sentence awarded thereunder are maintained. Both the appeals of appellant Jagdish (one filed through Jail and another filed in representative capacity) are allowed. His conviction u/s. 302/34 IPC is set aside. Appellant Jagdish is in Jail and he be set at liberty forthwith if not required in any other case.Appeal No. 685/2000 dismissed/ Appeal No. 737/2000 allowed. *******