U. S. TRIPATHI, J. ( 1 ) THIS appeal has been directed against the judgment and order dated 13-6- 1980 passed by VIth Additional Sessions Judge, Kanpur in Sessions Trial No. 205 of 1979 convicting the appellants under Section 302 read with 34 IPC and sentencing each of them to imprisonment for life. ( 2 ) PROSECUTION story, briefly stated, was as under :- Appellants Surendra Singh and Raghubir Singh were first cousin brothers and sons of Bhola Singh and Hakim Singh respectively. Appellant Omi was nephew of Raghubir Singh. Appellant Nekpal was residing with Surendra Singh. About three years before the occurrence of this case Bhola Singh, Ram Bahadur Singh and one Phaguni Chamar were murdered. Banwari Singh deceased, his brother Bhagat Singh (PW4) and 10 other persons were accused in said murder case and they were convicted and sentenced to imprisonment for life by the trial Court. They preferred appeal against their conviction and sentence before this Court and were released on bail. On account of above murder there was enmity between the parties. ( 3 ) ON the night of 4/5-4-1979 Banwari Singh deceased and his brother Bhagat Singh (PW4) had gone to village Maholi for witnessing Parsurami of Dhanush Yagya. Stage for Dhanush Yagya was prepared near temple of village Maholi. Several other persons including Krishna Pal Singh (PW3) and Jagat Pal Singh (PW5) were witnessing the Danush Yagya. Electric bulb on electric pole towards north of stage was emitting light. There was another electric pole in the lane near the house of Sone Lal, which was also fitted with electric bulb and emitting light. At about 1 a. m. in the night Banwari Singh deceased got drowsy and went in front of house of Nandi Singh, father of Sone Lal, and slept there on a Charpai. Krishna Pal Singh (PW3), Bhagat Singh (PW4) and Jagat Pal Singh (PW5) were witnessing Dhanush Yagya by sitting beneath Imli tree. At about 3 a. m. in the night a fire took place near temple of Lord Shankar Ji. The above witnesses and other persons went towards that place and after extinguishing fire they stood at the betel stall near Neem tree on the south western corner of Khandahar of Ram Pal for taking betel. At about 3 a. m. in the night a fire took place near temple of Lord Shankar Ji. The above witnesses and other persons went towards that place and after extinguishing fire they stood at the betel stall near Neem tree on the south western corner of Khandahar of Ram Pal for taking betel. When the above witnesses saw towards north, they saw that appellants Raghubir Singh armed with gun and Surendra Singh armed with country made pistol were standing near Charpai of Banwari Singh deceased. Raghubir Singh fired gun shot and Surendra Singh fired country made pistol shot on Banwari Singh. Appellants Nekpal and Omi were also standing near the Charpal of deceased with country made pistols. When the witnesses proceeded towards Charpai of deceased, Omi and Nekpal threatened them saying that in case they proceeded further, they would be shot at. The appellants thereafter ran away towards north. When the witnesses went to the Charpal of deceased, they found him dead. The appellants were recognized in the light of electric bulbs. ( 4 ) BHAGAT Singh (PW4) prepared report (Ext. Ka-5) of the occurrence and came to police station Maharajganj, where he lodged report at 6. 05 a. m. Chik FIR (Ext. Ka-2) was prepared by Head Constable Kaleshwar Dayal (PW2), who made an endorsement of the same at the G. D. report and registered a case against the appellants under Section 302 IPC. ( 5 ) THE investigation of the case was taken up by Satish Chandra Mehta, 1. 0. (PW6 ). He interrogated Bhagat Singh (PW4) at the police station and thereafter came to the spot, where he conducted inquest of the dead body of Banwari Singh, sealed the dead body and sent for post mortem. Thereafter, he interrogated Jagat Pal Singh (PW5) and other wit-nesses. He inspected the place of occurrence and prepared site plan. He also collected blood stained and simple earth, blood stained baadh of Charpal, pellets and wad pieces from the spot. ( 6 ) AUTOPSY on the dead body of the deceased was conducted on 6-4-1979 by Dr. S. N. Pandey (PW1), who found following ante mortem injuries on his person: (1 Firearm wound of entry 3 cm x 3 cms chest cavity deep over front of left side chest upper part over left nipple. Margins of wound were lacerated and inverted. Blackening, scorching and tattooing were present. S. N. Pandey (PW1), who found following ante mortem injuries on his person: (1 Firearm wound of entry 3 cm x 3 cms chest cavity deep over front of left side chest upper part over left nipple. Margins of wound were lacerated and inverted. Blackening, scorching and tattooing were present. (2) Firearm wound of entry 2 1/2 cm x 2-1/2 cm x chest cavity deep over front of upper part of left side chest 4 cm above injury No. 1. Margins of wounds were lacerated and inverted. (3) Firearm wound of exit 1 cm x 1 cm x chest cavity deep over back of left side chest lower part, margins lacerated and everted. (4) Firearm wound of exit 1 cm x 1 cm x chest cavity deep over back of lower part of left side chest 3/4 cm below injury No. 3. Margins lacerated and everted. (5) Fire arm wound of exit 1 cm x 1 cm x abdominal cavity deep over back of left side sleenic area 1 cm below injury No. 4. Margins lacerated and everted. ( 7 ) INTERNAL examination showed that 3rd to 5th ribs were fractured on anterior aspect of injuries No. 1 and 2 of left side and 4th and 7th ribs were fractured on back of left side chest. Left pleura lacerated and punctured in middle and lower part. Left lung lacerated, congested and punctured in middle lower lobe. 4 pieces of waddings recovered from lung substance on left side. Left side chest cavity contained about 1 kg clotted and non clotted blood. Pericardium was lacerated, congested and punctured. Left chamber (ventricle) of heart lacerated and congested. Two pieces of wadding and two big pellets recovered from left side of heart muscles. Peritoneum cavity contained 1/2 kg of clotted blood. Margins contained semi digested food material. Small intestine was empty and full of gases. Large intestine was half full and with gases. Spleen was lacerated and congested. Left side kidney was lacerated and congested in upper part. Cause of death was due to shock and haemorrhage as a result of firearm injuries. ( 8 ) THE 1. 0. completed remaining investigation and submitted charge sheet against the appellants. ( 9 ) COGNIZANCE of the case was taken up by the Magistrate, who committed the case to the Court of Sessions. Cause of death was due to shock and haemorrhage as a result of firearm injuries. ( 8 ) THE 1. 0. completed remaining investigation and submitted charge sheet against the appellants. ( 9 ) COGNIZANCE of the case was taken up by the Magistrate, who committed the case to the Court of Sessions. ( 10 ) ALL the appellants were charged with the offence punishable under Sections 302 read with Section 34 IPC. The appellants pleaded not guilty and contended that they were falsely implicated on account of enmity with police. ( 11 ) THE prosecution in support of its case examined Dr. S. N. Pandey (PW1), Head Constable Kalwshwar Dayal (PW2), Krishna Pal Singh (PW3), Bhagat Singh (PW4), Jagat Pal Singh (PW5), Satish Chandra Mehta, 1. 0. (PW6) and Constable Dev Dutt (PW7 ). Krishna Pal Singh (PW3), Bhagat Singh (PW4) and Jagat Pal Singh (PW5) were witnesses of fact, while the evidence of remaining witnesses was formal in nature. The appellants examined Rajeshwar Prasad Shukla (DW1) in their defence. ( 12 ) THE learned Sessions Judge on considering the evidence on record held that the prosecution has proved beyond reasonable doubt that the appellants committed murder of the deceased in furtherance of their common intentions. With these findings he convicted and sentenced the appellants as mentioned above. ( 13 ) AGGRIEVED with their conviction and sentence the appellants preferred this appeal. ( 14 ) APPELLANT Raghubir Singh died during pendency of the appeal and the appeal preferred by him stood abated. ( 15 ) WE have heard Sri G. S. Chaturvedi, learned Senior Advocate for appellants Surendra Singh, Nekpal and Omi and Sri R. K. Singh, learned AGA for respondent and have perused the entire evidence on record. ( 16 ) THE motive alleged by the prosecution was that three years before the occurrence of this case Bhola Singh, (father of appellant Surendra Singh), Ram Bahadur Singh and Phaguni Chamar were murdered. Banwari Singh deceased along with his brother Bhagat Singh (PW4) and 10 other persons were tried for the said murder and were convicted and sentenced by the Trial Court. They filed appeal before this Court and were released on bail. This fact is admitted to appellants and this shows that appellants had motive. Banwari Singh deceased along with his brother Bhagat Singh (PW4) and 10 other persons were tried for the said murder and were convicted and sentenced by the Trial Court. They filed appeal before this Court and were released on bail. This fact is admitted to appellants and this shows that appellants had motive. ( 17 ) DEATH of deceased Banwari Singh on account of gun shot injuries on the date, time and place of occurrence is also admitted, as per evidence of Rajeshwar Prasad Shukla (DW1 ). ( 18 ) CONTENTION of the learned counsel for the appellants was that there was no sufficient light on the spot, the ocular witnesses were busy in witnessing Dhanush Yagya and they had no opportunity to witness the murder of the deceased, and the deceased was murdered by brothers- in-law of Ram Bahadur Singh and that appellants were falsely implicated on account of enmity. It was further contended that no specific role was assigned to appellants Omi and Nekpal and there is no evidence that they shared common intention. ( 19 ) THE prosecution had relied on ocular testimony of Krishna Pal Singh (PW3), Bhagat Singh (PW4) and Jagat Pal Singh (PW5 ). According to above witnesses they along with Banwari Singh deceased had gone to witness Parasurami of Dhanush Yagya at village Maholi. Rajeshwar Prasad Shukla (DW1) has admitted the presence of Krishna Pal Singh (PW3) and Bhagat Singh (PW4) near the place of occurrence in the night of occurrence. As such the presence of these witnesses on the spot is admitted. Jagat Pal Singh (PW5) also claimed to have gone to village Maholi in the night of occurrence to witness Dhanush Yagya. There is nothing in his cross exami-nation to doubt his presence. Therefore, presence of ocular witnesses near the spot is established. ( 20 ) THE ocular witnesses Krishna Pal Singh (PW3), Bhagat Singh (PW4) and Jagat Pal Singh (PW5) stated that deceased Banwari Singh was sleeping on a Charpal in front of house of Nandi Singh. That there was one electric pole towards south of Neem tree near stage of Dhanush Yagya and there was another electric pole on the south western corner of house of Pahalawan Singh and towards north east of house of Nandi Singh, at a distance of 25 paces from the Charpal of the deceased. That there was one electric pole towards south of Neem tree near stage of Dhanush Yagya and there was another electric pole on the south western corner of house of Pahalawan Singh and towards north east of house of Nandi Singh, at a distance of 25 paces from the Charpal of the deceased. That both the electric poles were fitted with bulbs and were emitting light at the time of occurrence. Rajeshwar Prasad Shukla (DW1) also admitted that Banwari Singh deceased was sleeping in front of house of Nandi Singh. He also admitted that there was light of electric bulb on southern pole. However, he stated that there was no light near the Charpai of Banwari Singh deceased. But in his cross examination he admitted that there was electric pole at a distance of 20 feet from the Charpai of deceased. He also admitted in his cross examination that bulb was fitted on the said pole. However, he showed his ignorance whether the above bulb was emitting light or not. He also admitted that the 1. 0. inspected the place of occurrence and found electric bulb fitted in the electric pole towards north of Charpai of the deceased. He also admitted that house of Pradeep Shukla, which was in the eastern lane was electrified. Admittedly, Dhanush Yagya was being performed in village Maholi. Rajeshwar Prasad Shukla (DW1) stated that he made arrangement for light. There is categorical evidence of ocular witnesses that bulbs fitted in both the electric poles were emitting light. There is no evidence on record to show that current supply was off in the night of occurrence. Rajeshwar Prasad Shukla (DW1) stated that he had made arrangement for light through generator set. But the 1. 0. Sri Satish Chandra Mehta (PW6) stated that he visited spot at 7. 30 a. m. on 5-4-1979. In this cross examination, he stated that there was no generator set near the stage. It is not the case of appellants that generator set was lifted early in the morning. Therefore, from the evidence of ocular witnesses, observation of Investigating Officer and admission of Rajeshwar Prasad Shukla (DW1) it is amply proved that there was electricity light near the Charpai of the deceased. It is not the case of appellants that generator set was lifted early in the morning. Therefore, from the evidence of ocular witnesses, observation of Investigating Officer and admission of Rajeshwar Prasad Shukla (DW1) it is amply proved that there was electricity light near the Charpai of the deceased. ( 21 ) THE next contention of the learned counsel for the appellants was that ocular witnesses were witnessing Dhanush Yagya with their faces towards south and occurrence took place towards their back side and therefore, they were not in a position to see the occurrence. All the ocular witnesses have categorically stated that a few minutes before the occurrence a fire took place near temple of Lord Shankar Ji and they participated in extinguishing the fire. That after extinguishing fire, they were standing at the betel stall near Neem tree. There is nothing on record to discard the testimony of above witnesses on the point that fire had taken place near temple of Lord Shankar Ji and if fire had taken place, the witnesses present there must have tried to extinguish the same and if the witnesses were standing at the betel stall near Neem tree, they could easily see the happening at the spot. There is nothing on record to show that at the time of incident witnesses were busy in seeing Dhanush Yagya keeping their faces towards north. It has been explained that fire took place near temple and the witnesses went to extinguish the fire and thereafter were standing at the betel shop. It was contended that factum of fire near temple is not mentioned in the F. I. R. and was subsequently introduced. But it is mentioned in the F. I. R. that at the time of occurrence the witnesses were standing at the betel shop for taking betel. Coming to the betel shop for taking betel during performance of Dhanush Yagya was neither unnatural nor improbable. Thus, it was consistent case of the prosecution that at the time of occurrence the witnesses were standing at the betel shop near Neem tree. The place of incident easily visible from the said place. In these circumstances, the ocular witnesses had full opportunity to see the incident. ( 22 ) BHAGAT Singh (PW4) is no doubt real brother of the deceased, but on this ground his testimony cannot be discarded. The place of incident easily visible from the said place. In these circumstances, the ocular witnesses had full opportunity to see the incident. ( 22 ) BHAGAT Singh (PW4) is no doubt real brother of the deceased, but on this ground his testimony cannot be discarded. Moreover, being close relative of the deceased, he was not expected to spare out the real assailants and falsely implicate innocent persons. Krishna Pal Singh (PW3) is resident of another village. An attempt was made from the side of appellants that he was inimical with appellants as one Rakshpal Singh was witness against him in a dacoity case and that Rakshpal Singh was cousin of appellants Surendra Singh and Raghubir Singh. The witness has admitted that Rakshpal Singh was witness in dacoity case against him, but he showed his ignorance whether he was uncle of Surendra Singh and Raghubir Singh. No evidence has been adduced from the side of appellants to show that Rakshpal Singh was uncle of appellants Raghubir Singh and Surendra Singh. Therefore, no enmity with the witnesses could be established. Jagat Pal Singh (PW5) is also an independent witness. It was suggested that the sisters of the witness was married with Prahlad Singh, nephew of Krishna Pal Singh (PW3 ). But the witness denied the above suggestion and there is nothing on record to prove his above alleged relationship. In this way, there is no ground for discarding the evidence of ocular witnesses. The evidence of ocular witnesses is consistent with medical evidence, F. I. R. and other circumstances of the case. ( 23 ) LASTLY it was contended that no specific role has been assigned to appellants Omi and Nekpal and it is alleged that they were standing near Charpal of the deceased with country made pistols and therefore, there is nothing on record to prove that they also shared common intentions of appellants Surendra Singh and Raghubir Singh. It is mentioned in the F. I. R. that after firing shots by Surendra Singh and Raghubir Singh appellants Omi and Nekpal stopped the witnesses saying that in case any one dared to come forward, he would also be killed. Bhagat Singh (PW4) stated that Omi and Nekpal appellants threatened the witnesses that in case any one came forward, he would be shot at. Jagat Pal Singh (PW5) had also stated the same fact. Bhagat Singh (PW4) stated that Omi and Nekpal appellants threatened the witnesses that in case any one came forward, he would be shot at. Jagat Pal Singh (PW5) had also stated the same fact. The above evidence clearly showed that Omi and Nekpal having country made pistols threatened witnesses to facilitate the main assailants. The Apex Court held in Krishnan and another v. State, that the dominant feature of Section 34 is the element of participation in actions. This participation need not in all cases be by physical presence. Common intention implies acting in concert. There is a prearranged plan which is proved either from conduct or from circumstances or from incrimi-nating facts. The principle of joint liability in the doing of a criminal act is embodied in Section 34 IPC. The existence of common intention is to be the basis of liability. That is why the prior concert and the prearranged plan is the foundation of common intention to establish liability and guilt. It was further held in the said decision that applicability of Section 34 depends upon the facts and circumstances of each case. As such no hard-and-fast rule can be laid down as to the applicability or non-applicability of Section 34. For applicability of the section it is not necessary that the acts of several persons charged with commission of an offence jointly, must be the same or identically similar. The acts may be different in character, but must have been actuated by one and the same common intention in order to attract the provision. ( 24 ) IN the instant case it is established from the evidence on record that appellants Omi and Nekpal armed with country made pistols joined the main assailants in reaching the place of occurrence and after assault by Surendra Singh and Raghubir Singh when the witnesses tried to rush, these two appellants threatened the witnesses on the point of pistols that in case any one came forward, he would also be shot at. This clearly shows that these two appellants had facilitated the main assailants to make their escape good and therefore the facts and circumstances of the case clearly indicated that these two appellants Omi and Nekpal had also shared common intentions and were rightly convicted with the aid of Section 34 IPC. In view of our above discussions and observations, we find no force in the appeal. In view of our above discussions and observations, we find no force in the appeal. The appeal preferred by Raghubir Singh already stood abated. The appeal preferred by Surendra Singh, Nekpal and Omi is, accordingly, dismissed. Convic-tion and sentence of the appellants awarded by the Trial Court are confirmed. The above appellants are on bail. They shall surrender before the C. M. M. Kanpur Nagar to serve out the sentence awarded by the Trial Court. C. M. M. Kanpur Nagar is directed to procure the arrest of appellants by adopting all processes available under law to send them to jail to serve out the sentence. Appeal dismissed.