Judgment : LAKSHMAN URAON, J. ( 1 ) AS both the criminal Appeals arise out of a single judgment, passed by Smt. Vidyut Prabha Singh, learned 2nd Additional Sessions Judge, hazaribagh, in Sessions Trial No. 142 of 1995, arising out Katkamsandi (Pelawal) P. S. Case No. 12 of 1995, corresponding to G. R. Case No. 235 of 1995, they have been heard together and the single order of this court will govern the result in both the criminal Appeals. Both the appellants have challenged their judgment and order of conviction dated 11th february, 2000 under Section 302/34 of the indian Penal Code and sentence dated 14th february, 2000 to undergo rigorous imprisonment for life and also to pay a fine of rs. 5000/- each and in default to undergo rigorous imprisonment for three months. ( 2 ) THE informant Anil Kumar Mishra (PW 6) on 10-2-1995 along with his friend Ajay kumar Gupta (since murdered) had gone to his village Srisi from Kumhar Toli, hazaribagh which is his ancestral house. The informant and his father have shifted to Hazaribagh after constructing a house at jaiprakash Marg, Kumhar Toli, Hazaribagh. At village-Srisi widow aunt of the informant resides. On that day he along with his friends left Hazaribagh at 5. 00 p. m. for Sirsi. After putting household articles at Sirsi home, he went to meet his friend Sanjay Rana (PW1)and Vijay Verma (PW2) and thereafter, he was returning home at Village-Srisi along with deceased Ajay Kumar Gupta. On their way Sanjay and vijay also saw them and they followed them. At about 6. 15 p. m. when the informant was likely to reach his home at village Sirsi, two persons on a scooter came in front of him from the western side and stopped the scooter. The scooter was being driven by Afzal Hussain (appellant in Cr. Appeal No. 72 of 2000) and Arbind Kumar mishra (appellant in Cr. Appeal No. 90 of 2000) was the pillion rider. As soon as the scooter stopped, Arbind Kumar Mishra (appellant in Cr. Appeal No. 90 of 2000) pointed pistal towards the informant and opened fire. The bullet did not hit the informant rather it hit his standing friend Ajay Kumar gupta on his head. Ajay Kumar Gupta fell down. Afzal and Arbind Kumar Mishra, both appellants, fled away on the scooter towards west. Appeal No. 90 of 2000) pointed pistal towards the informant and opened fire. The bullet did not hit the informant rather it hit his standing friend Ajay Kumar gupta on his head. Ajay Kumar Gupta fell down. Afzal and Arbind Kumar Mishra, both appellants, fled away on the scooter towards west. Hearing the sound of firing, the nearby persons chased the scooter. The other villagers took the injured Ajay Kumar Gupta to Sadar Hospital, Hazaribagh, where the doctor declared him dead. The alleged occurrence took place only due to the quarrel in between the informant and Arbind Kumar mishra during the preceding Chhath festival and since thereafter, they were not meeting each other. Due to that incident, appellant Arbind Kumar Mishra fired at the informant anil Kumar Mishra to cause his murder but it missed and injured Ajay kumar Gupta on his head, who succumbed to the injuries. ( 3 ) IN course of trial the prosecution produced altogether nine witnesses in order to substantiate the charges, framed against them. PW 1 Sanjay Kumar Rana, PW 2 Vijay kumar Verma, PW3 Mukul Kumar and PW 6 Anil Kumar Mishra are the eye witnesses who were present at the place of occurrence when the alleged occurrence took place. PW 4 Sunil Kumar Mishra, PW 8 Sunil Kumar gupta and PW 9 Sanjay Kumar Gupta are the hearsay witnesses and are the witnesses on inquest report. PW 5 Dr. Ravindra Nath sahay has conducted the autopsy on the dead body of the deceased and Ext. 3 is the post Mortem Report. PW 7 Arun Kumar singh is the Officer-in-charge and Investigating Officer of this case. ( 4 ) THE learned 2nd Additional Sessions judge, Hazaribagh, relied the evidence of the eye-witnesses and found their ocular evidence supported by the Medical evidence of the doctor (PW 5 ). The hearsay witnesses are the witnesses on the inquest report who saw the dead body at the place of occurrence. The enmity was due to scuffle on the occasion of previous festival in between the appellant Arbind Kumar Mishra and the informant anil Kumar Mishra regarding playing with crackers (Patakha ). The learned court below found that Arbind Kumar mishra (appellant in Cr. Appeal No. 90 of 2000), who was pillion rider, fired only once. Afzal Hussain (appellant in Cr. The enmity was due to scuffle on the occasion of previous festival in between the appellant Arbind Kumar Mishra and the informant anil Kumar Mishra regarding playing with crackers (Patakha ). The learned court below found that Arbind Kumar mishra (appellant in Cr. Appeal No. 90 of 2000), who was pillion rider, fired only once. Afzal Hussain (appellant in Cr. Appeal No. 72 of 2000) was driving the scooter and stopped it at the place of occurrence and after shooting at Ajay Kumar Gupta by appellant ajay (Arbind) Kumar Mishra, both fled away toward west and then towards south. While Arbind Kumar Mishra brought out pistol and fired by getting down from the scooter, appellant Afzal Hussan had kept the scooter started and was sitting on it. The learned Court below found that there was a common intention in furtherance of both the appellants to cause murder of the informant but it injured Ajay Kumar Gupta, instead of the informant. Having relied the evidence of the prosecution witnesses he convicted both the appellants under Section 302 of the Indian Penal Code and sentenced them thereunder. ( 5 ) LEARNED counsel for the appellant Afzal hussain (Cr. Appeal No. 72 of 2000) has submitted that the prosecution has failed to prove the common intention to cause murder of Ajay Kumar Gupta in furtherance of their common intention. There is no allegation of any overt act against Afzal hussain, who was simply driving the scooter. Even he was not knowing as to whether arbind Kumar Mishra (Cr. Appeal No. 90 of 2000) had possessed any pistol, therefore, conviction of this appellant, who had no enmity with the deceased, cannot be sustained. Learned counsel for the appellant afzal Hussain while arguing, has relied a case, reported in AIR 1972 SC 535 : (1972 cri LJ 322) (Parichhat v. State of Madh Pra), wherein it has been held that "in absence of any evidence of a prior meeting of minds and any pre-arranged plan or of participation of the accused persons in the fight in question they can not be convicted with the aid of Section 34. The prosecution must prove that the criminal act has been done in concert pursuant to the pre-arranged plan. The prosecution must prove that the criminal act has been done in concert pursuant to the pre-arranged plan. Mere proof that some accused persons were with the main accused, who inflicted fatal injury on the deceased at the time of cutting of crops on the field will not attract the applicability of Section 34. " Learned counsel for the appellant Arbind Kumar Mishra (Cr. Appeal No. 90 of 2000) has vehemently argued that at the place of occurrence the prosecution has alleged that this appellant was the pillion rider and Afzal Hussain (Cr. AppealNo. 72 of 2000) was riding the scooter. They were coming from east and going towards west whereas the informant and his deceased friend Ajay Kumar Gupta were going towards east from west. The scooter came from the front side and appellant Arbind Kumar Mishra is alleged to have fired causing injury to Ajay Kumar Gupta on his right temporal region. It was argued that in that situation injury would have been caused on the front of the head of Ajay kumar Gupta and not on his right temporal area. It was urged that the doctor (PW 5), who conducted the autopsy on the dead body of Ajay Kumar Gupta, found burn pits on right side of the neck and cheek due to gun powder, right side of the hair of scalp was also partly burnt and the time elapsed since death was within 36 hours from the time of the post mortem examination on 11 -2-1995 at 11. 00 a. m. The doctor found circular scalp 1" x 1/2 x brain cavity deep abrasion over right temporal region, which was wound of entry and irregular 2" x 1" x brain cavity deep wound abrasion on the left temporal region wound of exit. Both the wounds were communicating each other and brain matter was coming out from both the wounds. ( 6 ) IT was submitted that the eye witnesses i. e. PW1, PW 2, PW 3, and PW 6 have deposed that from a distance of 7 to 8 yards appellant Arbind Kumar Mishra fired causing injury on the right temporal region of ajay Kumar Gupta, having mark of burnt hair partly. The gun powder present there shows that from a close range distance within 3 ft. fire must have been opened. The alleged occurrence took place on 10-2-1995 at 6. The gun powder present there shows that from a close range distance within 3 ft. fire must have been opened. The alleged occurrence took place on 10-2-1995 at 6. 15 p. m. PW 5 conducted autopsy on 11-2-1995 at 11. 00 a. m. and opined that the time elapsed since death from the time of autopsy was within 36 hours. It was submitted that the doctor did not mention the time elapsed since death within 24 hours or 30 hours but has mentioned 36 hours, which does not corroborate the time of the injury sustained by deceased Ajay Kumar gupta. The eye witnesses i. e. PW1 and PW 2 have improved the prosecution case in course of their evidence whereas PW 6 has changed the manner of the alleged occurrence, which was not explained to the appellants of both the Criminal Appeals while they were examined under Section 313 Cr. P. C. and has relied a case reported in AIR 2001 SC 3955 : (2001 Cri LJ 4655) (State of punjab v. Naib Din), wherein, it has been held that "if any appellate Court or revisional court comes across that the trial Court had not put any question to an accused even if it is of vital nature, such omission alone should not result in setting aside the conviction and sentence as an inevitable sentence. Efforts should be made to undo or correct the lapse if it is not possible to correct it by any means the Court should then consider the impact of the lapse on the overall aspects of the case. After keeping that particular item of evidence aside, if the remaining evidence is sufficient to bring home the guilt of the accused, the lapse does not matter much and can be sidelined justifiable. But if the lapse is too vital as would affect the entire case, the appellate or revisional Court can endeavour to see whether it could be rectified. " ( 7 ) LEARNED counsel for the appellants has argued that while examining both the appellants under Sec. 313 Cr. P. C. the question was put that Anil Kumar Mishra, informant, was riding the scooter where Ajay kumar Gupta (since dead) was sitting behind. While crossing on scooters Arbind kumar Mishra who was sitting behind the scooter, driven by appellant Afzal Hussain caused injury by opening fire to Ajay Kumar gupta on his head. P. C. the question was put that Anil Kumar Mishra, informant, was riding the scooter where Ajay kumar Gupta (since dead) was sitting behind. While crossing on scooters Arbind kumar Mishra who was sitting behind the scooter, driven by appellant Afzal Hussain caused injury by opening fire to Ajay Kumar gupta on his head. The circumstances appearing in the evidence adduced by the eye witnesses were not asked to explain to these appellants while they were examined under Sec. 313 cr. P. C. As the questions were wrongly put, it has caused great prejudice to the appellants, which can not be cured or segregated. On these grounds, it was submitted that both the appellants deserve acquittal, giving them benefit of doubt. ( 8 ) LEARNED A. P. P. assisted by the private Advocate, engaged by the informant, refuting the arguments, advanced on behalf of both the appellants, has submitted that the eye witnesses i. e. PW1, PW 2, PW 3 and pw 6 have corroborated the prosecution case by stating that it was appellant Afzal hussain, who was riding the scooter. He stopped the scooter at the place of occurrence where the informant and deceased along with others were proceeding. Appellant Arbind Kumar Mishra, who was sitting behind the scooter, came down and fired, causing injury on the right parietal region of Ajay Kumar Gupta. Thereafter, both the appellants fled away on scooter for about 150 yards but when the villagers chased them, they left the scooter and fled away. The ocular evidence regarding firing and sustaining injury has been corroborated by the doctor (PW 5) who conducted the autopsy on the dead body of deceased Ajay Kumar gupta. ( 9 ) THE doctor opined that the fire must have been caused from a distance in between 1 ft. to 3 ft. causing such injury having charring mark with gun powder. There is direct evidence against both these appellants. Appellant Arbind Kumar Mishra fired with pistol, who was carried on scooter by appellant Afzal Hussain. Again after the alleged occurrence, it was Afzal Hussain who took Arbind Kumar Mishra on scooter and fled away which attracts Section 34 of the indian Penal Code against him. There is direct evidence against both these appellants. Appellant Arbind Kumar Mishra fired with pistol, who was carried on scooter by appellant Afzal Hussain. Again after the alleged occurrence, it was Afzal Hussain who took Arbind Kumar Mishra on scooter and fled away which attracts Section 34 of the indian Penal Code against him. On this point, learned A. P. P. has relied a case, reported in AIR 2001 SC 2815 : (2001 Cri LJ 3965) (State of Uttar Pradesh v. Jhinkoo Nai)in which it has been held that "for common intention, there could rarely be direct evidence. The ultimate decision, at any rate, would invariably depend upon the inferences deducible from the circumstances of each case. The common intention or the intention of the individual concerned in furtherance of common intention would be proved either from direct evidence or by inferences from the acts or attending circumstances of the case and conduct of the parties. " ( 10 ) IT was submitted that in the instant case, Afzal Hussain carried the other assailant Arbind Kumar Mishra on his scooter. He stopped the scooter where they met informant and his other friends, including Ajay kumar Gupta. After firing, causing injury to Ajay Kumar Gupta, again they fled away from scooter, which very much proves the act done in furtherance of the common intention of both the appellants. On these grounds, it was submitted that all the ocular and medical evidence as also the documentary evidence were meticulously considered by the learned 2nd Additional Sessions judge, who has rightly convicted the appellants and sentenced them thereunder. ( 11 ) IN the present case, PW 1 Sanjay kumar Rana, PW 2 Vijay Kumar Verma. PW 3 Mukul Kumar and PW 6 Anil Kumar mishra (informant) were together at the place of occurrence. They are friends inter se, who were likely to reach the house of the informant Anil Kumar Mishra (PW 6) and reached near the plum tree from west to east and the appellants at scooter were coming from east to west. They crossed the informant and others and proceeded towards west crossing the informant and others, including Ajay Kumar Gupta (deceased ). After crossing at a distance of 3 to 5 yards Afzal hussain stopped the scooter and kept it started. They crossed the informant and others and proceeded towards west crossing the informant and others, including Ajay Kumar Gupta (deceased ). After crossing at a distance of 3 to 5 yards Afzal hussain stopped the scooter and kept it started. Appellant Arbind Kumar Mishra got down from the scooter and aiming his pistol at the informant Anil Kumar Mishra opened fire but unfortunately it injured Ajay Kumar gupta on his right temporal region. When ajay Kumar Gupta fell down, both the assailants fled away. They were chased by the villagers, who assembled on hearing the sound of firing. The appellants leaving scooter at a distance of 150 yards from the place of occurrence fled away. PW 1 Sanjay kumar Rana has deposed that appellant arbind Kumar Mishra fired from a distance of 16 ft. At that time none of the male members came out at the place of occurrence but after the alleged occurrence they assembled on hearing the sound of firing. PW 2 vijay Kumar Verma was also with the informant and the deceased along with Sanjay (PW1), Mukul (PW3) and Anil (PW6 ). He has deposed that they have not informed the police rather the police came at the place of occurrence at 11. 00 p. m. on the same day. At that time the sun was likely to set and was not so dark. The police seized the scooter and prepared seizure list. Blood stained soil was also seized and seizure list was prepared on which he and Sanjay kumar Rana (PW1) signed (Exts. 1 and 1/1 respectively ). PW 3 Mukul has also corroborated the prosecution case and the evidence of the other witnesses, as deposed by PW 1, pw 2 and PW 6, who were also with them. He has deposed that Anil Kumar mishra (informant) was ahead, followed by ajay Kumar Gupta. Then Sanjay and Vijay along with Mukul were going parallel, talking in between them. The scooter came from east, crossed them and went towards west i. e. back at a distance of 7 to 8 yards and it was stopped by appellant Afzal Hussain. Then appellant Arbind Kumar Mishra fired pointing at the informant PW 6 Anil but the same injured Ajay Kumar Gupta on his right temporal area. The scooter came from east, crossed them and went towards west i. e. back at a distance of 7 to 8 yards and it was stopped by appellant Afzal Hussain. Then appellant Arbind Kumar Mishra fired pointing at the informant PW 6 Anil but the same injured Ajay Kumar Gupta on his right temporal area. Similar is the statement of the informant (PW 6) whose Fard-beyan was recorded by the I. O. at that very night on 10-2-1995 at 8. 30 p. m. in Sadar Hospital, hazaribagh where the dead body of Ajay kumar Gupta was lying. He signed (Ext. 2/ 1) on the Fard-beyan and the signature of sunil Kumar Mishra is Ext. 2/2. PW 7 Arun kumar Singh, I. O. received telephonic message that one person at Sirsi village was murdered and his dead body is lying in sadar Hospital, Hazaribagh at 8. 00 p. m. on 10-2-1995. He went there and recorded the fard-beyan (Ext. 6) of the informant at the hospital. As it was night hence the inquest report (Ext. 5) was prepared on the next morning at 8. 00 a. m. He reached the place of occurrence on the same night at 21. 30 hours on 10-2-1995 and found the blood stained soil at the place of occurrence, which he seized and also seized the scooter. He arrested Afzal from his house at 23. 00 hours. ( 12 ) THE other witnesses PW 4 Sunil kumar Mishra, PW 8 Sunil Kumar Gupta and PW 9 Sanjay Kumar Gupta are hearsay witnesses, who were informed by the informant that appellant Afzal Hussain was driving the scooter whereas appellant Arbind kumar Mishra was sitting on the back seat. When they met informant and others at the place of occurrence, the scooter crossed them and stopped at a distance of 7 to 8 yards. Appellant Arbind Kumar Mishra got down and fired with his pistol, causing injury on the right parietal region of Ajay kumar Gupta and thereafter, they fled away. They were also informed that due to some scuffle which had taken place in the preceding Chhath festival regarding explosion of crackers, appellant Arbind Kumar Mishra had thereatened the informant Anil Kumar mishra but unfortunately instead of Anil kumar Mishra, his friend Ajay Kumar gupta, who was by his side, sustained injury by pistol firing. They were also informed that due to some scuffle which had taken place in the preceding Chhath festival regarding explosion of crackers, appellant Arbind Kumar Mishra had thereatened the informant Anil Kumar mishra but unfortunately instead of Anil kumar Mishra, his friend Ajay Kumar gupta, who was by his side, sustained injury by pistol firing. Those eye witnesses have informed these hearsay witnesses, who went to the place of occurrence and saw the dead body and the scooter of the appellant, which corroborates the evidence of the prosecution case. ( 13 ) THE learned Additional Sessions judge while considering the evidence of the witnesses has discussed that there are some minor contradictions which are slight imoprovement in the prosecution case but the fact remains that appellant Arbind kumar Mishra fired, causing injury on the left temporal area of Ajay Kumar Gupta, who fell down and died at the spot. It was appellant Afzal Hussain, who took him on his scooter and stopped at the place, helping appellant Arbind Kumar Mishra in shooting at the informant. However, it missed and injured Ajay Kumar Gupta. After the occurrence again it was Afzal who fled away on the scooter along with Arbind Kumar Mishra, which attracts Section 34 of the Indian Penal Code. The evidence of the eye witnesses i. e. PW 1, PW 2, PW 3 and PW 6 is corroborative of the prosecution case as stated by the informant (PW 6) in his Fard-beyan. The question put in course of examination to the accused persons under Section 313 Cr. P. C. that the informant and deceased Ajay Kumar gupta were also coming from east to west and appellants were going on scooter from west to east and near the plum tree, which is near the house of the informant Anil kumar Mishra, the assailant Arbind Kumar mishra fired which injured Ajay Kumar gupta, who was sitting on the back of the scooter driven by the informant Anil Kumar mishra. The question has not appeared in the evidence of the prosecution witnesses or in the prosecution case. But the circumstances were brought in the question put under Section 313 Cr. P. C. that Afzal hussain drove the scooter on which Arbind kumar Mishra was sitting behind and it was arbind Kumar Mishra, who fired and injured ajay Kumar Gupta and thereafter, they fled away. But the circumstances were brought in the question put under Section 313 Cr. P. C. that Afzal hussain drove the scooter on which Arbind kumar Mishra was sitting behind and it was arbind Kumar Mishra, who fired and injured ajay Kumar Gupta and thereafter, they fled away. The circumstances and evidence appearing against the appellants were put in general terms which has not caused any prejudice to them. The laches on the part of the Court will not hamper the prosecution case as throughout the trial the appellants had heard the evidence adduced against them in course of trial. The learned Court below has discussed all these circumstances and evidence appearing against the appellants and hasconvicted them under Section 302/34 of the Indian Penal Code and sentenced both of them to undergo life imprisonment and also to pay a fine of rs. 5,000/- each. When considered all the pros and cons of the prosecution cases and the evidence, appearing against them, which have meticulously been considered and discussed by the learned Court below, I find that there is no illegality in the impugned judgment and order of conviction and sentence, passed by the learned Court below, which does not require interference by this i court. ( 14 ) VIEWED thus, I find no merit in both these Criminal Appeals, which fail and are, accordingly, dismissed. The judgment and order of conviction and sentence, passed by learned 2nd Additional Sessions Judge, hazaribagh, in Sessions Trial No. 142 of 1995, arising out of Katkamsandi (Pelawal)p. S. Case No. 12 of 1995, against both the appellants is hereby confirmed. S. J. MUKHOPADHAYA, J. : 15. I agree. Appeal dismissed. --- *** --- .