JUDGMENT 1. This a criminal appeal against the judgment and order dated 28.06.1982 passed by Sri V.K. Agrawal the then Addl. Sessions Judge, Dehradun in S.T. No. 67 of 1979 u/s 307/333 IPC and S.T. No. 2 of 1980 and S.T. No. 103 of 1980 u/s 60 Excise Act State Vs. Naresh and another whereby the learned Addl. Sessions Judge convicted and sentenced the appellant Naresh to undergo R.I. for a period of four years and a fine of Rs. 500/- under section 333 IPC and to undergo rigorous imprisonment for a period of six months and a fine of Rs. 500/- u/s 60(1)(a) Excise Act. In default of payment of fine he shall undergo R.I. for six months in each count. Both the sentences shall run concurrently. The appellant Rameshwar was convicted and sentenced to undergo R.I. for four years and a fine of Rs. 500/- u/s 333 read with section 34 IPC. In default of payment of fine he shall further undergo R.I. for six months and a fine of Rs. 500/- u/s 60(1)(a) Excise Act. In default of payment of fine he shall undergo R.I. for six months. Both the sentences shall run concurrently. 2. The prosecution case, in brief, is that Head Constable Ballabh Singh (PW-3) alongwith constable Devki Nandan (PW-4) and constable Mahendra Pal on 9.7.1979 at 11.30 p.m. started from the police out post for patrol duty. While on patrol duty they received information that two persons were coming on scooter carrying illicit liquor. They tried to procure independent witnesses but none was available. Believing this, the police party took position on the side of a culvert. At about 12.30 a.m. the police party saw a scooter coming from the side of Panditwari. The police party asked them to stop the scooter but they did not stop the scooter. The scooter hit Devki Nandan PW-4 due to which he received injuries on his leg and he fell down. The scooter also fell down on the ground. The two persons tried to run away but the police arrested them. On enquiry by the police they told their names as Naresh and Rameshwar, the present appellants. On their search plastic jerricane filled with illicit liquor was recovered from the appellant Naresh and a bag having two bladders were also recovered from the possession of appellant Rameshwar alias Munna. The two persons tried to run away but the police arrested them. On enquiry by the police they told their names as Naresh and Rameshwar, the present appellants. On their search plastic jerricane filled with illicit liquor was recovered from the appellant Naresh and a bag having two bladders were also recovered from the possession of appellant Rameshwar alias Munna. The seized articles were sealed on the spot and recovery memo Ex. Ka-4 and Ex. Ka-5 were prepared. The recovered articles and the appellants were brought to the police station where written report Ex. 6 was lodged by Head Constable Ballabh Singh (PW-3). On the basis of written report chick report Ex. Ka-11 was prepared and a case was registered against the appellant vide G.D. entry Ex. Ka-15. The investigation was conducted by S.I. D.P. Sirohi who visited the spot and prepared site plan Ex. Ka-12. The injuries of Devki Nandan were examined by Dr. R.P. Singh PW-5 on 9.7.1979 at 1.25 a.m. There were two abrasions on his person and swelling deformity in right knee and x-ray was advised vide injury report Ex. Ka-8. The illicit liquor recovered from the possession of the appellant was sent for chemical examination. The illicit liquor was examined by Dr. K.L. Bahal PW-1 Excise Inspector vide his reports Ex. Ka-1 and Ex. Ka-2. The injuries of both the appellants were also examined by Dr. R.P. Singh and their injury reports are Ex. Ka-8 and Ex. Ka-9. There were 8 abrasions on the body of appellant Naresh and swelling on the body of appellant Rameshwar. After completing the investigation the Investigating Officer submitted charge sheets Ex. Ka-14 and Ex. Ka-15 against the appellants. 3. Charge was framed against the appellant Naresh u/s 307 IPC and 333 IPC to which he pleaded not guilty and claimed to be tried. Charge was also framed against the appellant Rameshwar u/s 307/34 IPC and 333/34 IPC. He denied the charge and claimed trial. 4. The prosecution in support of its case examined PW-1 K.L. Bahal Excise Inspector, PW-2 Dr. K.K. Malhotra, PW-3 H.C. Ballabh Singh, PW-4 Constable Devki Nandan and PW-5 Dr. R.P. Singh. 5. In the statement recorded u/s 313 Cr.P.C. the appellants denied the prosecution case and stated that they had falsely implicated in this case due to enmity. 6. 4. The prosecution in support of its case examined PW-1 K.L. Bahal Excise Inspector, PW-2 Dr. K.K. Malhotra, PW-3 H.C. Ballabh Singh, PW-4 Constable Devki Nandan and PW-5 Dr. R.P. Singh. 5. In the statement recorded u/s 313 Cr.P.C. the appellants denied the prosecution case and stated that they had falsely implicated in this case due to enmity. 6. The learned trial court after appraisal of the evidence on record found the appellants guilty and convicted and sentenced the appellant as mentioned above. 7. I have heard the learned counsel for the parties and perused the evidence on record. 8. The prosecution adduced the evidence of Excise Inspector K.L. Bahal PW-1 who stated in his evidence that he examined the liquor containing jerricane and two bladders and he found that it was illicit liquor. PW-5 Dr. R.P. Singh examined the injuries of the appellants at the hospital and he found the injuries on the person of the appellant. PW-2 Dr. K. Malhotra proved that there was a fracture on the right knee of Devki Nandan PW-4. The prosecution has not produced the Investigating Officer. There are two eye-witnesses of the incident, namely, H.C. Ballabh Singh PW-3 and constable Devki Nandan PW-4. They stated in their evidence that on the date of incident they were on patrol duty and they started from the police check post at about 11.30 p.m. on 9.7.1979. At about 12 a.m. some informer informed them that two persons were coming on a scooter from the side of Panditwari and they were carrying illicit liquor in their possession. Pursuant to the said information the police force went to the bridge of Chakrota road where they concealed themselves behind the culvert and they started waiting for the said miscreants. At about 12.30 a.m. the police party saw a scooter having no light on it which was coming from the side of Panditwari. The scooter was being driven by Naresh appellant (now dead) and the appellant Rameshwar was a pillion rider on the scooter. When the scooter reached near the culvert Devki Nandan PW-4 tried to stop the scooter but the scooter came forward and struck the scooter on his right leg and both the appellants fell down. Devki Nandan PW-4 also fell down on the spot and sustained injuries. The appellants were arrested on the spot. When the scooter reached near the culvert Devki Nandan PW-4 tried to stop the scooter but the scooter came forward and struck the scooter on his right leg and both the appellants fell down. Devki Nandan PW-4 also fell down on the spot and sustained injuries. The appellants were arrested on the spot. Recovery of one jerricane having the illicit liquor was recovered from the possession of appellant Naresh and one bag in which two bladders were kept was recovered from the possession of appellant Rameshwar. The said two bladders were containing the illicit liquor. Thereafter the Fard was prepared and the appellants were taken to the police station. PW-4 stated the same facts in his evidence. 9. Now it has to be examined as to whether the evidence of the prosecution is reliable and it has also to be examined whether the prosecution has established the guilt against the appellants beyond all reasonable doubt. 10. The learned counsel for the appellant Rameshwar contended that the police party after the arrest of the appellant alongwith the recovered articles reached at the police station at about 2.00 a.m. It was further pointed out that the G.D. Ex. Ka-16 reveals that the police party reached at 2.00 a.m. at the police station. It is also in the ocular testimony of the witnesses that the police party alongwith the injured reached at the police station at 2.45 a.m. or 3.00 a.m. It is also the prosecution case that when the police personnel reached at the police station they lodged the FIR and the injured was sent to the hospital. The learned counsel for the appellant also contended that the injured Devki Nandan PW-4 was exmained at 1.25 a.m. It was not possible for the police alongwith the injured to reach at the hospital at 1.25 a.m. The perusal of the record reveals that Dr. R.P. Singh has categorically stated in his evidence that he examined the injured at 1.25 a.m. The learned AGA tried to explain the circumstances and contended that it was due to mistake. The doctor has not given any explanation as to the mistake occurred or the prosecution has not given any reason in the evidence that the time in the medical report has been written due to mistake. The learned trial court has erred in holding that this mistake has crept due to some mistake. The doctor has not given any explanation as to the mistake occurred or the prosecution has not given any reason in the evidence that the time in the medical report has been written due to mistake. The learned trial court has erred in holding that this mistake has crept due to some mistake. In absence of any cogent and reliable evidence the learned trial court cannot give this finding. If there was any mistake or misunderstanding it should have been explained by cogent evidence. It is also the defence case that the injured sustained injuries in the accident and the appellant has been falsely implicated in this case. Thus the omission and lapse on the part of the prosecution is material and this fact totally belies the prosecution evidence. 11. The learned counsel for the appellant further contended that the appellant has been convicted on the basis of common intention. He further pointed out that so far as the appellant Rameshwar is concerned, there is no allegation that he took part in the assault. He submitted that his false implication cannot be ruled out. In any event it has been submitted that his conviction with the aid of section 34 IPC is not justified in the facts and circumstances of the case. To attract the provisions of 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. There is also difference between a “common intention” and “similar intention”. To attract the applicability of section 34 IPC the prosecution is under obligation to establish that there existed a common intention which requires a prearranged plan, because before a man can be vicariously convicted for the criminal act of another, the act must have been done in furtherance of the common intention. Thus section 34 of the Indian Penal Code recognizes the principles of vicarious liability in criminal jurisprudence. 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. Thus section 34 of the Indian Penal Code recognizes the principles of vicarious liability in criminal jurisprudence. 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. The section gives statutory recognition to the common-sense principle that if more than two persons intentionally do a thing jointly, it is just the same as if each of them had done it individually. There is no gainsaying that a common intention presupposes prior concert, which requires a prearranged plan of the accused participating in an offence. Such preconcert or preplanning may develop on the spot or during the course of commission of offence but the crucial test is that such plan must precede the act constituting an offence. Common intention can be formed previously or in the course of occurrence and on the spur of moment. The existence of a common intention is a question of fact in each case to be proved mainly as a matter of inference from the circumstances of the case. 12. In the present case the said scooter was being driven by the appellant Naresh (deceased) and the appellant Rameshwar was a pillion rider. It is also in the evidence that PW-4 Devki Nandan tried to stop the scooter coming immediately behind the tree and the appellants tried to make their escape good. PW-4 tried to chase the appellant and the appellant Naresh hit him by the scooter and he sustained the injuries. It is in the evidence of PW-4 that the appellant stated that he would kill him. PW-4 has not stated in his evidence that the pillion rider made any such exhortation. Whereas other witness Ballabh Singh PW-3 who was behind the culvert stated that he also exhorted. The evidence of PW-3 Ballabh Singh cannot be relied upon because he was at a considerable distance and the scooter was not stopped by miscreants at the spot. According to the prosecution story the scooter hit the injured Devki Nandan at about 35 paces away from the place when they tried to stop the scooter and as such he could not hear the conversation. It is revealed from the evidence that there is no common intention to cause the injuries to the injured. According to the prosecution story the scooter hit the injured Devki Nandan at about 35 paces away from the place when they tried to stop the scooter and as such he could not hear the conversation. It is revealed from the evidence that there is no common intention to cause the injuries to the injured. In Purshuram Singh v. State of Bihar (2002) 8SCC 16, and Suresh vs. State of U.P. 2001 SCC (Cri) 601 the Apex Court gave to two of the accused persons the benefit of doubt having regard to the peculiar facts and circumstances of that case. Against one of the accused in that case the allegation was that the father of the accused exhorted the others to kill the deceased, and though the accused himself was armed with a Lathi, he did not take any part in the assault. The court found that the surrounding circumstances of the case did not ensure the confidence that he made such an exhortation. Apart from not using the weapon, which was handy with him, there appeared no reason for him to take up the leadership of the gang, as he had no quarrel with the deceased. As regards the other accused to whom the benefit of doubt was extended, the Court found that it was highly improbable that he would have refrained from using an inherently lethal weapon like the pistol, which was in his possession if he shared the common intention. In MD. Rustam alias Rustam V. State of Bihar, 2003 SCC (Cri) 1422, the Apex Court has held : “6. The question, therefore, is whether this finding can be confirmed. From the entire prosecution evidence, it is noticed that the appellant and Accused 3 came to the place of incident on hearing the call of their father. It is said that after they came to the spot armed with firearms, their father exhorted them to kill Manir, the deceased. In response to that exhortation, it is only Accused 3 who fired at Manir and admittedly the appellant did not shoot at the deceased. Therefore, it is clear that so far as the father’s intention to kill Manir is concerned, the same is shared only by Accused 3 and not by A-2. In response to that exhortation, it is only Accused 3 who fired at Manir and admittedly the appellant did not shoot at the deceased. Therefore, it is clear that so far as the father’s intention to kill Manir is concerned, the same is shared only by Accused 3 and not by A-2. Therefore, we will have to consider whether the alleged subsequent shooting of the appellant at PWs 4 and 7, if at all true could also be attributed as part of the same common intention. In this process, we notice that there is no much of contradiction in the case of the prosecution that the Sessions Court itself thought it fit not to rely upon this part of the evidence of the prosecution while considering the case under section 307 IPC against the appellant. Then we notice that the appellant has not been attributed with any other motive to either kill the deceased or any of the members of his family, nor was there any exhortation by A-1 to kill any person other than the deceased. In such circumstances, if the appellant has not chosen to obey the exhortation of his father to kill Manir then it will be extremely difficult to hold that the appellant shared the common intention of his father and his younger brother. Even if the role attributed to this appellant in shooting PW-1, 4 and 7 is to be accepted, even then that cannot be part of the same common intention of killing Manir. Therefore, in our opinion, the prosecution has failed to establish that the appellant had shared the common intention of his father A-1 and younger brother A-3 so as to hold him guilty of murder by invoking Section 34 IPC.” 13. In view of the above factual matrix as well as of the legal position, I am of view that the appellant – Rameshwar had no common intention to cause the injuries to the injured. 14. The learned counsel for the appellant contended that the article which was produced before the trial court does not pertain to the alleged recovery made from the appellant. The learned counsel for the appellant pointed out that the recovery of the article and the illegal liquor from the possession of the appellant becomes doubtful. 14. The learned counsel for the appellant contended that the article which was produced before the trial court does not pertain to the alleged recovery made from the appellant. The learned counsel for the appellant pointed out that the recovery of the article and the illegal liquor from the possession of the appellant becomes doubtful. The perusal of the evidence reveals that the article which was recovered from the possession of the appellant was produced before the court below. It is in the evidence of PW-1 that the article which was produced before the court below does not belong to this crime. It was pertaining to crime No. 779/1979. It is also in the evidence that the recovery was made of two bladders from the possession of the appellant and one bag in which these two bladders were packed, but it has come in the evidence of PW-3 and PW-4 that one bottle was there containing liquor. This type of recovery does not inspire confidence. 15. In view of the foregoing discussion, the appeal of Rameshwar @ Munna is liable to be allowed. The appeal of Rameshwar @ Munna is allowed and the conviction and sentenced awarded by the trial court under Section 333/34 I.P.C. and under section 60(1)(a) Excise Act against appellant – Rameshwar per judgment and order dated 28.6.1982 are set-aside. 16. The appeal of the Naresh @ Jippi @ Munna since dead stands abated. 17. Let the lower court record be remitted back for compliance. Compliance be submitted within two months.