JUDGMENT 1. - This appeal has been filed by the accused appellant against the judgment and order dated 8.8.2003 passed by the learned Special Judge, SC/ST Cases, Kota in Sessions Case No. 53/95 by which he while acquitting the accused appellant for the offence under Sections 326, 326/34 IPC and 3(2)(5) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (hereinafter referred to as the SC/ST Act.), convicted the accused appellant for the offence under Sections 302/34, 307/34 and 324 IPC and 4/25 Arms Act and sentenced him in the following manner:- Name of appellant Convicted u/s Sentence awarded Tapeshwar & Chhotu 302/34 IPC Imprisonment for life and to pay fine of Rs. 500/-, in default of payment of fine, to further undergo SI for six months. 307/34 IPC Ten years RI and to pay fine of Rs. 500/-, in default of payment of fine, to further undergo SI for six months. 324 IPC One year RI and to pay fine of Rs. 1000/-, in default of payment of fine, to further undergo SI for three months. 4/25 Arms Act One year SI and to pay fine of Rs. 200/-, in default of payment of fine, to further undergo one month SI. All the aforesaid substantive sentences were ordered to run concurrently. 2. It may be stated here that co-accused Jagdish (hereinafter referred to as the absconded accused), who is brother of the accused appellant, is absconding and therefore, the learned trial Judge also ordered that the record of this case be kept intact. 3. It arises in the following circumstances:- On 5.3.1995 at about 3.45 PM, PW17 Ramesh gave parcha bayan Ex.P/18 to PW5 Richhpal Singh, who was on that day SHO, Policy Station Ramganjmandi stating inter-alia that on that day at about 3.30 PM, when he was coming from Goverdhanpura Mataji's temple, he was called by absconded accused Jagdish and the accused appellant and at that time, absconded accused was having 12 bore gun in his hand and as soon as he tried to pass the house of the absconded accused Jagdish, the absconded accused Jagdish made fires on him with his gun, which struck on his chest, head and shoulder and absconded accused Jagdish also made fire on Latur (hereinafter referred to as the deceased). It was further stated by PW17 Ramesh that at that time, the accused appellant also came there with sword and gave sword blow on his head, which was resisted by him by wood. It was further stated by PW17 Ramesh that thereafter, PW9 Dhanraj came there and absconded accused Jagdish also made fire on PW9 Dhanraj. Thereafter, he was taken to the hospital by PW9 Dhanraj. On this parcna bayan Ex.P/18. police registered the case and chalked out regular FIR Ex.P/19 and started investigation.During investigation, PW17 Ramesh was got medically examined by PW1 Dr. G.S. Vishnnar and his injury report is Ex.P/1. Which shows that he received many gun shot injuries.PW7 Rakesh was also got medically examined by PW1 Dr. G.S. Vishnnar and his injury report is Ex.P/4, which shows that he also received many gun shot injuries.The deceased was also got medically examined by PW13 Dr. K.K. Soni and his injury report is Ex.P/44 and since deceased died lateron, post mortem of the dead body of the deceased was got conducted by PW14 Dr. Ramesh Chand Dube and the post mortem report is Ex.P/47, which shows that deceased received many gun shot injuries and the cause of death of the deceased was shock due to firearm injuries over liver, heart, lungs, stomach and mesentry.PW3 Babulal was also got medically examined by PW13 Dr. K.K. Soni and his injury report is Ex.P146, which shows that he received six incised wounds.PW6 Ishwar was also got medically examined by PW13 Dr. K.K. Soni and his injury report is Ex.P/45, which shows that he received two firearm injuries.The accused appellant was got arrested through arrest memo Ex P/52. and during arrest he gave information Ex.P/55 for recovery of sword and in pursuance of that information Ex.P/55, the accused appellant got recovered sword and-the same was seized through lard Ex.P/36.After usual investigation, police submitted challan against the present accused appellant and absconded accused for the offence under Sections 302, 307, 326, 341 IPC and Section 3 of SC/ST Act in the Court of Magistrate and from where the case was committed to the Court of Session.On 26.4.2000, the learned Special Judge, SC/ST Cases. Kota framed charges for the offence under Sections 302/34, 307/34, 324, 326, 324/34, 326/34 IPC and Section 3(2)(5) of SC/ST and 4/25 Arms Act and since co-accused Jagdish was absconding, therefore, he was declared absconder and standing warrant of arrest was issued against him. The charges were read over and explained to the accused appellant, who pleaded not guilty and claimed trial.The prosecution in support of its case examined as many as 20 witnesses and got exhibited several documents and thereafter, statement of the accused appellant under Section 313 Cr.PC. was recorded. No evidence vas led in defence.After conclusion of trial, the learned Special Judge, SC/ST Cases, Kota through impugned judgment and order dated 8.8.2003 convicted the accused appellant for the offence under Sections 302/34, 307/34, 324 IPC and 4/25 Arms Act and sentenced him in the manner as indicated above holding inter-alia:- (i) That deceased died because of gun shot injuries and his death was homicidal one. (ii) That PW17 Ramesh, PW7 Rakesh and PW6 ishwar received gun shot injuries at the hands of the absconded accused Jagdish and thus, the learned trial Judge convicted the accused appellant for the offence under Section 307 1PC with the aid of Section 34 1PC. (iii) That accused appellant caused sharp edged injuries to PW3 Babulal and for that, the learned trial Judge convicted the accused appellant for the offence under Section 324 IPC. (iv) That no doubt deceased died because of gun shot injuries caused by absconded accused Jagdish, but the learned trial Judge came to the conclusion that in causing gun shot injuries, the present accused appellant also shared common intention with absconded accused and therefore, he convicted the accused appellant for the offence under section 302 IPC with the aid of Section 34 IPC. (v) That the prosecution has failed to prove the offence under Section 3(2)(5) of SC/ST Act and 326 or 326/34 IPC against the accused appellant. Aggrieved from the said judgment and order dated 8.8.2003 passed by the learned Special Judge, SC/ST Cases, Kota, the accused appellant has preferred this appeal. 4. (v) That the prosecution has failed to prove the offence under Section 3(2)(5) of SC/ST Act and 326 or 326/34 IPC against the accused appellant. Aggrieved from the said judgment and order dated 8.8.2003 passed by the learned Special Judge, SC/ST Cases, Kota, the accused appellant has preferred this appeal. 4. In this appeal, the main contention of the learned counsel for the accused appellant is that the learned trial Judge has wrongly applied section 34 1PC against the accused appellant and thus, he has erroneously convicted the accused appellant for the offence under Section 302 and 307 with the aid of Section 34 IPC as what was done, it was done by the absconded accused Jagdish and for causing gun shot injuries to PW17 Ramesh, PW7 Rakesh, PW6 Ishyvar and deceased by the absconded accused Jagdish, the accused appellant did not share common intention with him. Hence, the findings of conviction recorded by the learned trial Judge against the accused appellant for the offence under Sections 302/34 and 307/34 1PC are wholly erroneous one and cannot be sustained and liable to be set aside. 5. On the other hand, the learned Public Prosecutor has supported the impugned judgment and order passed by the learned Special Judge, SC/ST Cases, Kota. 6. We have heard the learned counsel for the accused appellant and the learned Public Prosecutor and gone through the record of the case. 7. It may be stated here that there is no dispute on the point that from the statement of PW1 Dr. G.S. Vishnnar, it is well proved that PW17 Ramesh and PW7 Rakesh received many gun shot injuries and their injury reports are respectively Ex.P/1 and Ex.P/4 and the same have been proved by Dr. G.S. Vishnnar, PW1. 8. Similarly, from the statement of PW13 Dr. K.K. Soni, it is well proved that PW6 lshwar also received two fire arm injuries and his injury report is Ex.P/45 and the same has been proved by PW13 Dr. K.K. Soni. 9. Similarly, from the statement of PW13 Dr. K.K. Soni, it is also well proved that PW3 Babulal also received six injuries by sharp edged weapon and his injury report is Ex.P/46 and the same has been proved by PW13 Dr. K.K. Soni. 10. From the statement of PW13 Dr. K.K. Soni. 9. Similarly, from the statement of PW13 Dr. K.K. Soni, it is also well proved that PW3 Babulal also received six injuries by sharp edged weapon and his injury report is Ex.P/46 and the same has been proved by PW13 Dr. K.K. Soni. 10. From the statement of PW13 Dr. K.K. Soni, it is also well proved that deceased received gun shot injuries and his injury report is Ex.P/44 and the same has been proved by PW13 Dr. K.K. Soni. 11. From the statement of PW14 Dr. Ramesh Chand Dube, who conducted the post mortem of the dead body of the deceased, it is also well proved that deceased received gun shot injuries and he has proved the post-I mortem report Ex.P/47, and the cause of death of the deceased was shock due to firearm injuries over liver, heart, lungs, stomach and mesentry. 12. The main question for consideration is whether the learned trial Judge has rightly convicted the accused appellant for the offence under Sections 302 and 307 with the aid of Section 34 IPC or not and for that, evidence of this case has to be looked into. 13. From perusing the parcha bayan Ex.P/18, which was given by PW17 Ramesh to PW5 Richhpal Singh on 5.3.1995 at about 3.45 PM, it appears that the absconded accused Jagdish was armed with the gun and he caused fire arm injuries and the accused appellant made attempt with sword on PW17 Ramesh and at that time, PW9 Dhanraj was also with him. 14. PW2 Rambharosi states that he made a complaint with the accused appellant that he has not vacated his house and further, he had not paid the rent. He has further stated that thereafter, accused appellant came with the naked sword with an intention to beat him and at that time, PW3 Babulal was also with him. He has further stated that for that incident, he lodged a report with the police station. 15. He has further stated that thereafter, accused appellant came with the naked sword with an intention to beat him and at that time, PW3 Babulal was also with him. He has further stated that for that incident, he lodged a report with the police station. 15. It may be stated here that on the report, which was lodged by PW2 Rambharosi against the accused appellant, a separate case for the offence under Sections 352, 504, 445 IPC and 3(1)(x) of SC/ST Act was registered against the accused appellant bearing sessions case No. 158/95 and in that sessions case, the accused appellant was acquitted through judgment and order dated 8.3.2002 passed by the learned Special Judge, SC/ST Cases, Kota and a certified copy of that judgment and order was produced by the learned counsel for the accused appellant during the course of arguments. 16. PW3 Babulal, who was also with PW2 Rambharosi, states that accused appellant gave sword blow to him. He has further admitted that absconded accused Jagdish also came there with gun and made gun fire, but accused appellant did not utter any word when absconded accused Jagdish was making fire with gun. 17. Thus, from the statement of PW3 Babulal, it is well proved that he received injuries by sword at the hands of the accused appellant, but no overt act on the part of accused appellant has been proved in respect of causing fire arm injuries by the absconded accused Jagdish. 18. PW6 Ishwar is another injured witness. He has stated that when absconded accused Jagdish was making fire with gun, the accused appellant was also with him. He has further admitted in cross-examination that accused appellant did not do anything meaning thereby accused appellant had not shared common intention with the absconded accused Jagdish in respect of firing. 19. PW7 Rakesh is another injured witness. He has simply stated that absconded accused Jagdish caused fire arm injuries to him, PW17 Ramesh, PW6 Ishwar and PW9 Dhanraj. He did not say anything about the present accused appellant. 20. PW9 Dhanraj is another witness. Though he has stated that absconded accused Jagdish made fire on him, but he has admitted in cross-examination that he did not get himself medically examined and when PW3 Babulal was going towards his house, the accused appellant gave sword blow on him. 21. He did not say anything about the present accused appellant. 20. PW9 Dhanraj is another witness. Though he has stated that absconded accused Jagdish made fire on him, but he has admitted in cross-examination that he did not get himself medically examined and when PW3 Babulal was going towards his house, the accused appellant gave sword blow on him. 21. Thus, from the statement of PW9 Dhanraj, sharing of common intention by the present accused appellant with the absconded accused Jagdish in causing fire arm injuries is not established. 22. PW17 Ramesh Meena has stated that when he was coming from Mataji's temple, the accused appellant called him and he tried to give sword blow on him, but in the meantime, absconded accused Jagdish made fires with his gun which caused injuries to him. He has admitted that from the sword attempt made by the accused appellant, he did not receive any injury. 23. Thus, from the statement of PW17 Ramesh also, it cannot reasonably be inferred that the accused appellant was sharing common intention with the absconded accused Jagdish when he was causing fire arm injuries to PW17 Ramesh, PW7 Rakesh, PW6 Ishwar and deceased. 24. It is true that in order to convict persons vicariously liable under Section 34 or Section 149 it is not necessary to prove that each and every one of them had indulged in overt acts. Even so, there must be material to show that the Overt act or acts of one or more of the accused was or were done in futherance of the common intention of all the accused or in prosecution of the common object of the members of the unlawful assembly. The version of the occurrence given in the fard-bayan would not be enough for fastening constructive liability on the other accused for the overt act of one of them and hence some overt act must be attributed to them in order to make it appear that the attack on the deceased had been planned by all of them. 25. For an inference of common intention being drawn for the purposes of Section 34, the evidence and the circumstances of the case should establish, without any room for doubt, that a meeting of minds and a fusion of ideas has taken place amongst different accused and in prosecution of it the overt acts of the accused persons flowed out. 25. For an inference of common intention being drawn for the purposes of Section 34, the evidence and the circumstances of the case should establish, without any room for doubt, that a meeting of minds and a fusion of ideas has taken place amongst different accused and in prosecution of it the overt acts of the accused persons flowed out. In this respect, the decision of the Hon'ble Supreme Court in Dukhmochan Pandey v. State of Bihar ( AIR 1998 SC 40 ) may be referred to. 26. Common intention is to be inferred from the circumstances, particularly the part played by the accused and the surrounding circumstances, namely, nature of the weapon used and the injury inflicted as well as the meeting of the minds among the accused who are being held constructively liable. In this respect, the decision of the Hon'ble Supreme Court in Kashmira Singh v. State of Punjabi AIR 1994 SC 1651 may be referred to. 27. In order to attract section 34 1PC it is not sufficient to prove that each of the participating culprits had the same intention to commit a certain act. What is the requisite ingredient of Section 34 1PC is that each must share the intention of the other. For that, the decision of the Hon'ble Supreme Court in Dajya Mooshya Bhil v. State of Maharashtra AIR 1984 SC 1717 may be seen. 28. Common intention is a question of fact and it is subjective but it can be inferred from facts and circumstances of each case. 29. Mere presence of a person cannot make him liable under Section 34 IFC without taking into consideration whether any specific overt act is proved against him. For that, the decision of the Hon'ble Supreme Court in Balker Singh v. State of Punjab ( AIR 1994 SC 1133 ) may be referred to. 30. In the light of the above principles, the facts of the present case are being examined. 31. From the evidence just discussed above, it cannot reasonably be inferred or gathered that the accused appellant was sharing common intention with the absconded accused Jagdish when he caused fire arm injuries to PW17 Ramesh, PW7 Rakesh, deceased and PW6 Ishwar. 32. 30. In the light of the above principles, the facts of the present case are being examined. 31. From the evidence just discussed above, it cannot reasonably be inferred or gathered that the accused appellant was sharing common intention with the absconded accused Jagdish when he caused fire arm injuries to PW17 Ramesh, PW7 Rakesh, deceased and PW6 Ishwar. 32. Apart from this, it appears that there was a dispute between PW2 Rambharosi and accused appellant and since PW3 Babulal was friend of PW2 Rambharosi and he was with PW2 Rambharosi, therefore, accused appellant caused injuries to PW3 Babulal by sword and at that time also, the absconded accused Jagdish caused fire arm injuries to PW17 Ramesh. PW7 Rakesh, deceased and PW6 Ishwar and these facts itself reveal that in causing fire arm injuries to the above persons by absconded accused the accused appellant was not haring any common intention with him, as from the above facts, proximate connection between the part played by the absconded accused Jagdish as well as by the present accused appellant is not there and even the accused appellant has not caused any injury with sword to PW17 Ramesh and apart from this, in the parcha bayan Ex.P/18, many facts uttered by PW17 Ramesh are missing. 33. Thus, the prosecution has failed to prove that what was done by the present accused appellant, it was done in furtherance of the common intention sharing with absconded accused Jagdish. 34. Furthermore, simply because the accused appellant was brother of the absconded accused Jagdish and he was present on the scene. it should not be inferred that he was sharing common intention with absconded accused Jagdish in causing fire arm injuries to deceased, PW17 Ramesh PW7 Rakesh and PW6 Ishwar as no overt act has been attributed on the part of the accused appellant. 35. For the reasons stated above, the learned trial Judge has wrongly applied Section 34 IPC against the accused appellant and thus, the findings of the learned trial Judge convicting the accused appellant for the offence under Sections 302 and 307 with the aid of Section 34 IPC are illegal and thus, should not be sustained and liable to be set aside and the accused appellant is entitled to acquittal of the said charges. 36. 36. However, so far as conviction of the accused applicant for the offence under Sections 324 IPC and 4/25 Arms Act as recorded by the learned trial Judge through impugned judgment and order is concerned, the same is maintained. In the result, the appeal filed by the accused appellant Tapeshwar @ Chhotu is partly allowed in the following manner:- (i) That the conviction and sentence of the accused appellant for the offence under Sections 302 and 307 with the aid of Section 34 IPC as recorded by the learned Special Judge SC/ST Cases, Kota through impugned judgment and order dated 8.8.2003 are set aside and he is acquitted of the said charges. (ii) That however, the conviction of the accused appellant for the offence under Sections 324 IPC and 4/25 of Arms Act as recorded by the learned Special Judge SC/ST Cases, Kota through impugned judgment and order dated 8.8.2003 is maintained. (iii) That since the accused appellant had already served out the sentence for the offence under Sections 324 IPC and 4/25 of Arms Act as awarded by the learned Special Judge, SC/ST Cases, Kota through impugned order of sentence dated 8.8.2003, therefore he be released forthwith, if not required in any other case. (iv) That the impugned judgment and order dated 8.8.2003 passed by the learned Special Judge, SC/ST Cases, Kota stand modified accordingly to the extent as indicated above. *******