Judgment SHIV KUMAR SHARMA. J.:- Can the Court depend solely on the probity of investigation? Can criminal justice be made casualty for the wrongs committed by Investigating Officer? These are the pivotal questions springing up for consideration in the instant appeals, which have been preferred against the judgment dated December 13, 2004 of the learned Additional Sessions Judge (Fast Track) No. 3 Bharatpur Camp Bayana by Pin too alias Kamal• Kishore. Susya alias Lokesh and Kalua alias Koshal Kishore, who were convicted and sentenced as under; Susya alias Lokesh; u/S. 302. IPC: To suffer imprisonment for life and fine of Rs. 2000/-. in default to further suffer rigorous imprisonment for three months. Pintoo alias Kamal Kishore and Kalua alias Koshal Kishore; u/S. 302/34. IPC; Both to suffer imprisonment for life and fine of Rs. 2000/-. in default to further suffer rigorous imprisonment for three months. BACKGROUND FACTS: 2. The prosecution story is woven like this;- On September 17. 1999 around 6.45 p.m. informant Prem Shankar (P.W.9) submitted a written report (Ex. P. IS) at Police Station Bayana stating therein that on September 17. 1999 around 5.00 p.m. while his cousin Lakhan was busy in the main market Bayana in inspection work of the employees of Municipal Council, he was surrounded by Susya alias Lokesh. Pin too alias Kamal Kishore. Laddu alias Mool Chand. Dinesh. Kalua. Satish and 2-3 other persons, who were armed with weapons. Pintoo and Kalua. in order to strike terror in the market opened fire in the air. Laddu alias Mool Chand pulled Lakhan from his collar and rest of the persons also caught hold of Lakhan. It was then stated in the report that Susya alias Lokesh made fire from his Katta at Lakhan, hitting Lakhan on the left side of the abdomen. It was also stated that the informant and his friends namely Mahendra and Rakesh Tiwari witnessed the incident, as they were purchasing some articles from the nearby shop in the market. After the firing, the miscreants fled away. Informant and his companions removed injured lakhan to hospital in a rickshaw from where; Sh1ce the condition of injured Lakhan was serious, he was referred to Bharatpur. On the, basis of said report, a case was registered for offence punishable under Sections 147,148,149,323 and 307, IPC. The investigating agency embarked upon investigation of toe impugned crime. Informant and his companions removed injured lakhan to hospital in a rickshaw from where; Sh1ce the condition of injured Lakhan was serious, he was referred to Bharatpur. On the, basis of said report, a case was registered for offence punishable under Sections 147,148,149,323 and 307, IPC. The investigating agency embarked upon investigation of toe impugned crime. During the course of Investigation injured Lakhan succumbed to his injuries, resulting in addition of an offence under Section A.302. IPC. The dead body of deceased was subjected to post mortem examination. After doing the needful, charge sheet came to be filed only against Pintoo. Dinesh and Satish. in the Court of concerned Magistrate. However, appellants Susya alias Lokesh as also Kalua alias Kaushal Kishore were not charge sheeted by the police. The case was committed for trial to the Court of Sessions. Charges were framed. During the course of examination of evidence. 17 witnesses were examined. At that point of time appellant Susya alias Lokesh as also Kalua alias Kaushal Kishore were arrayed as accused persons, by resorting to the provisions contained in Section 319, Cr. P.C. by the learned trial Judge. After the addition of the two accused persons, qua all the five accused persons, charges were framed. As against appellant Susya alias Lokesh charges were framed for the offences under Sections 302 in the alternative 302/149. IPC. As against appellant Pintoo alias Kamal Kishore. charges were framed for offences under Sections 302 in the alternative 302/ 149. IPC and Section 3/25 Arms Act. The accused persons denied the charges and claimed trial. The prosecution in support of its case examined as many as 19 witnesses, In the explanation under Sec. 313, Cr. P.C. the appellants claimed innocence. Three witnesses in support of defence were examined. Learned trial Judge on hearing final submissions convicted and sentenced the appellants as indicated herein above. 3. Death of Lakhan was undeniably homicidal in nature. As per post-mortem report (Ex. P. 35) following ante-mortem injuries were found on the dead body:- 1. Punctured lacerated wound 21,4" x 2 cm x chest cavity and abdomen cavity deep with callus.- 2. Abrasion and bleeding in 4 x 3 cm areas around wound on Lt. mid axillary line below 1/3rd chest and outer wall near costal edge with 33 x blood margins in valeted suggesting wound of entry caused by fire arm. In the opinion of Dr. Abrasion and bleeding in 4 x 3 cm areas around wound on Lt. mid axillary line below 1/3rd chest and outer wall near costal edge with 33 x blood margins in valeted suggesting wound of entry caused by fire arm. In the opinion of Dr. Udai Singh (P.W. 17) the cause of death was haemorrhagic shock due to injury to spleen, It. kidney and liver. ARGUMENTS ON BEHALF OF APPELLANTS: 14. In assailing. the impugned judgment learned counsel for the appellants made following submission-; (i) Informant Prem Shankar (P.W. 9) besides being highly interested witness is also an unreliable witness. Similarly testimony of Rakesh (P.W. 12) does not inspire confidence. The statements of, these two witnesses do not get any independent corroboration. Their testimony is riddled with numerous incongruencies, embellishments and contradictions rendering the same to be highly doubtful. (ii) The prosecution failed to produce independent witness of the incident. (iii) No weapon has been recovered from the appellant Susya alias Lokesh. (iv) There is no ballistic report available on record to fortify the forensic worth of testimony of eye-witnesses. (v) The recovery of weapon at the instance of Pintoo alias Kamal Kishore besides being from an open place has also not been proved with the aid of cogent and convincing evidence. (vi) The site plan of place of incident does not render corroboration to the ocular testimony. (vii) The medical evidence stands in conflict with the ocular evidence. (viii) Appellant Susya alias Lokesh was not charge-sheeted by the Investigating Agency and he was arrayed during the course of trial by resorting to the provisions of Section 319, Cr. P.C. Since prosecution led two sets of evidence each one of which contradicts the other. the appellants could not have been convicted. (ix) Cognizance of fresh offence against newly added accused Susya alias Lokesh could not be taken in the same trial. The trial Court ought to have tried two cases separately one after the other and pronounced judgments separately. 5. We have given our thoughtful consideration to the above submissions. ANALYSIS OF PROSECUTION EVIDENCE:" 6. At the outset it may be noticed that as per the written report (Ex. P.15) Pintoo and Kalua. in order to strike terror in the market opened fire in the air and Susya alias Lokesh made fire from Katta (country made gun) at Lakhan on the left side of abdomen, which proved fatal. ANALYSIS OF PROSECUTION EVIDENCE:" 6. At the outset it may be noticed that as per the written report (Ex. P.15) Pintoo and Kalua. in order to strike terror in the market opened fire in the air and Susya alias Lokesh made fire from Katta (country made gun) at Lakhan on the left side of abdomen, which proved fatal. However it was 10 Gordhan Singh (P.W.18), who at his whims did not choose to file charge-sheet against Susya and Kalua despite the allegations made against them by witnesses Prem Shanker. Rakesh and Mahendra in their police statements. The Investigating Officer discarded the evidence of these witnesses and ranked them interested witnesses. The charge-sheet was filed only against Pintoo. Dinesh and Satish and Susya and Kalua, according to written report were main culprits, were left. Gordhan Singh in his deposition stated thus:- (Vernacular matter omitted....Ed.) (after investigation I filed charge-sheet in the Court against Pin too alias Kamal Kishore. Dinesh and Satish because charges under Section 302. 34. IPC and 3/25 Arms Act were found established against them. Since statements of witnesses Mahendra Kumar. Prem Shankar and Rakesh were recorded by Bal Kishan ASI did not rely on their statements because they were interested witnesses and put note in this regard in case diary.) (Emphasis supplied) 7. Further look at the material on record reveals that after the case was committed, learned trial Court on August 17. 2000 framed charge against Pintoo under Section 302. IPC and 3/25 Arms Act whereas accused Dinesh Chand and Satish were charged for having committed offence under Sections 302/149. IPC. It appears that till April 6. 2002 as many as 17 witnesses were examined by the prosecution. An application thereafter was filed under Section 319. Cr. P.C. for proceeding against Susya and Kalua. Learned trial Court allowed the application on July 8. 2002 and proceeded against Susya and Kalua under Sections 302/149 and 148. IPC., after appearance of Susya and Kalua learned trial Court amended the charges on November 22. 2003 and charges under Sections 302 in the alternative 302/149 and 3/25 Arms Act were framed against Pin too alias Kamal Kishore whereas Dinesh Chand. Satish Chand. Susya alias Lokesh. and Kalua alias Kaushal Kishore were charged under Sections 148, 302 in the alternative 302/149. IPC. The prosecution thereafter examined as many as 19 witnesses, out of whom informant Prem Shankar (P.W. 9). Satish Chand. Susya alias Lokesh. and Kalua alias Kaushal Kishore were charged under Sections 148, 302 in the alternative 302/149. IPC. The prosecution thereafter examined as many as 19 witnesses, out of whom informant Prem Shankar (P.W. 9). Rakesh (P.W.11) and Mahendra Kumar, when recalled after proceeding against Susya and Kalua under Section 319, Cr. P.C. did not support the prosecution case and was declared hostile. 8. In his deposition Prem Shankar (P.W.9) stated that on the date of incident while he was purchasing some articles in main market of Bayana near Panchayati Mandir, Lakhan Lal (son of maternal uncle) who was a contractor of sweepers in Municipal Council Bayana, was inspecting the work of sweepers, at water-hut he was surrounded by Susya alias Lokesh, Pintoo alias Kamal Kishore, Kalua alias Kaushal Kishore, Dinesh Joshi, Satish, who were armed with Kattas (country made guns). Pin too and Kalua opened fire at Lakhan and they also dragged Lakhan towards the shop of Dr. Ved Prakash by holding him from the collar. When Lakhan stood, Lokesh made fire from his Katta at abdomen of Lakhan, as a result of which Lakhan fell down. Believing Lakhan as dead the miscreants fled away. 9. Rakesh (P.W. 12) stated in statement that he along with Mahendra and Prem Shanker on the date of incident went to purchase some hosiery items at Gupta General stores, Bayana. When they were standing outside the shop Lakhan came near water hut from Mandi side and Susya, Pintoo, Kalua, Dinesh, Satish and two three other persons came from opposite side. Kalua and Pintoo opened fire at Lakhan which did not hit him and they dragged Lakhan towards the shop of Dr. Ved Prakesh. Susya pick out Katta (country made gun) and fired at Lakhans abdomen, on account of which Lakhan fell down and the miscreants fled away. 10. Having closely scanned the testimony of Prem Shankar (P.W. 9) and Rakesh (P.W.12), we find that their presence at the time of incident was natural. These witnesses gave sufficient reasons for their •presence at the time of incident, which occurred around 5 p.m. in the market and written report was lodged by Prem Shankar at 6.45 p.m. Prem Shankar named Rakesh in the report with whom he was purchasing goods from the nearby shop. These witnesses gave sufficient reasons for their •presence at the time of incident, which occurred around 5 p.m. in the market and written report was lodged by Prem Shankar at 6.45 p.m. Prem Shankar named Rakesh in the report with whom he was purchasing goods from the nearby shop. In the market every passerby is a chance witness and it is well settled that in the case of a chance witness, if that with ness gives sufficient reasons for his presence, that evidence can be accepted. The incongruencies, embellishments and contradictions pointed out by the learned counsel in the testimony of Prem Shankar and Rakesh do not render the same to be doubtful. On examining the statement of these witnesses from the point of view of trustworthiness, we find them truthful. The shopkeeper examined by the appellants in defence, could not shatter the testimony of Prem Shankar and Rakesh. It was also not necessary to fortifY the forensic worth of testimony of Prem Shankar and Rakesh by exhibiting ballistic report since Dr. Udai Singh (P.W. 17) stated in the post-mortem report (Ex. P. 35) that wounds were caused by firearm. 11. It is well settled that evidence of kith and kin of the deceased may be relied upon. The Apex Court in Krishna Ram v. State of Rajasthan ( AIR 1993 SC 1386 ): (1993 Cri W 1056) held as under (para 4):- "We have gone through the evidence of the eye-witnesses. No doubt P.Ws. 1. 2, 3 and 6 are kith and kin of the deceased but they have given a truthful version of the whole occurrence. Even Ex. P-l all the material particulars are mentioned particularly the fact that the deceased was dragged to the house of A-1 and that there he was tied and beaten. As noted already even A-1 admitted that the deceased was tied in his house but added that because of the scuffle between P.W.6 and the deceased, latter was tied. Immediately after registering the crime, the SHO went to the house of A-I and found the deceased tied and he was having bleeding injuries. Thus the time, place of occurrence and the cause of death are established beyond doubt. So far as the presence and participation of the appellants are concerned there are statements of the eye-witnesses consistently to this effect. Thus the time, place of occurrence and the cause of death are established beyond doubt. So far as the presence and participation of the appellants are concerned there are statements of the eye-witnesses consistently to this effect. Both the Courts below have given cogent and convincing reasons for accepting the evidence of the eyewitnesses. The evidence adduced in defence is not at all material and the Courts below have rightly rejected the same. The trial Court acquitted Keshra Ram A-6 giving the benefit of doubt. In our view the same in any manner does not affect the evidence of eye-witnesses who are the most natural witnesses. We see absolutely no merits in these appeals. The appeals are dismissed accordingly." 12. In Ram Lakhan v. State of U.P. ( AIR 1996 SC 3429 ): (1996 Cri W.3496) held that the evidence of close relatives of deceased is not liable to be rejected on ground of interested witnesses. What is necessary is that Court should scrutinize evidence of such witness carefully. 13. In Baitullah v. State of U. P. ( AIR 1997 SC 3946 ): (1997 Cri W 4644). Honble Supreme Court held that evidence of interested witness cannot be discarded merely on ground that he is interested. It is normally expected that witness would not leave out real culprits and rope in innocent persons. 14. In Tapubha Bhagwanji v. State of Gujarat ( AIR 2002 SC 2794 ): (2002 Cri W 3733) the Apex Court held as under (Para 12):- "The witnesses examined on behalf of the prosecution are witnesses who in normal course of event are expected to know about the incident. Their deposition do not reveal any good reason for rejecting their evidence as untrustworthy or unreliable. Nothing has been brought on record either in cross-examination of the witnesses concerned or in any other evidence to show any good reason as to why they should falsely implicate the accused in the case. Thus rejection of their testimony on ground that they are interested witnesses being in relation of deceased, not proper." (Emphasis supplied) 15. In Angnoo v. State of U. P. ( AIR 1971 SC 296 ) the Apex Court held that the, fact of relationship would add to value of his evidence because he would be interested in getting the real culprit, rather than innocent persons, punished. 16. In Angnoo v. State of U. P. ( AIR 1971 SC 296 ) the Apex Court held that the, fact of relationship would add to value of his evidence because he would be interested in getting the real culprit, rather than innocent persons, punished. 16. In Bolineedi Venkataramaiah v. State of Andhra Pradesh ( AIR 1994 SC 76 ): (1994 Cri W 61) the Apex Court considered the case where there was bitter enmity between prosecution party and accused party, group of persons chased deceased and inflicted injuries. The presence of witnesses at place of occurrence was not found doubtful. It was herd that being interested witnesses their evidence was subjected to greater scrutiny. Specific overt acts attributed to accused. Corroboration of overt acts by medical and circumstantial evidence was found. Only those accused to whom specific overt acts had been attributed consistently by all witnesses were convicted. The plea that some of the accused were acquitted, the same evidence cannot be accepted against other accused, was not found tenable. 17. In Kartik Malhar v. State of Bihar (1995) 8 JT (SC) 425: (1996 Cri W 889) the Apex Court indicated that "we may also observe that the ground that the witness being a close relative and consequently being partisan witness should not be relied upon, has no substance. This theory was repelled by this Court as early as in Dalip Singhs case ( AIR 1953 SC 364 ) in which this Court expressed its surprise over the impression which prevailed in the minds of the members of the bar that relatives were not independent witnesses speaking through Vivian Bose, J. the Court observed para 25 of ( AIR 1953 SC 364 ); “We are unable to agree with the learned Judges of the High Court that the testimony of the two eye-witnesses requires corroboration. If the foundation for such an observation is based on the fact that the witnesses are women and that the facts of seven men hangs on their testimony, we know of no such rules. If it is grounded on the reason that they are closely related to the deceased we are unable to concur." 18. If the foundation for such an observation is based on the fact that the witnesses are women and that the facts of seven men hangs on their testimony, we know of no such rules. If it is grounded on the reason that they are closely related to the deceased we are unable to concur." 18. In Thangaiya v. State of Tamil Nadu (2005 Cri W 684) the Apex Court observed as under;- “In a murder trial by describing the independent witnesses as chance witnesses it cannot be implied thereby that their evidence is suspicious and their presence at the scene doubtful. Murders are not committed with previous notice to witnesses; soliciting their presence. If murder is committed in a dwelling house, the inmates of the house are natural witnesses. If murder is committed in a street, only passers by will be witnesses. Their evidence cannot be brushed aside or viewed with suspicion on the ground that they are mere chance witnesses. The expression chance witnesses is borrowed from countries where every mans home is considered his castle and everyone must have an explanation for his elsewhere or in another mans castle. It is quite unsuitable an expression in a country where people are less formal and more casual, at any rate in the matter explaining their presence. In instant case, the plea of the accused that P.W. 3 was chance witness who has not explained how he happened to be at the alleged place of occurrence, it has to be noted that the said witness was an independent witness. There was not even a suggestion to the witness that he had any animosity towards the accused. Therefore, there is no substance in the plea that evidence of independent witness which is clear and cogent is to be discarded." 19. From the testimony of Prem Shankar and Rakesh it is established beyond reasonable doubt that Pintoo and Kalua in order to strike terror in market opened fire in the air and thereafter Susya made fire from Katta at Lakhan hitting on the left side of his abdomen. In their police statements Prem Shankar and Rakesh made the same I allegations against Susya. Pintoo and Kalua, but Gordhan Singh 10 (P.W.18) whimsically discarded their statements. MACHINATIONS DEMONSTRATED BY INVESTIGATING OFFICER: 20. Section 161. Cr. In their police statements Prem Shankar and Rakesh made the same I allegations against Susya. Pintoo and Kalua, but Gordhan Singh 10 (P.W.18) whimsically discarded their statements. MACHINATIONS DEMONSTRATED BY INVESTIGATING OFFICER: 20. Section 161. Cr. P.C. does not authorise Gordhan Singh 10 to ignore the statements of Prem Shankar and Rakesh recorded by Bal Kishan ASI on the ground that they were interested witnesses. Section 161, Cr. P.C. reads as under: "161. Examination of witnesses by police:- (1) Any police officer making an investigation under this Chapter, or any police officer not below such rank as the State Government may, by general or special order, prescribe in this behalf, acting on the requisition of such officer, may examine orally any person supposed to be acquainted with the facts and circumstances of the case. (2) Such person shall be bound to answer truly all questions relating to such case put to him by such officer, other than questions the answers to which would have a tendency to expose him to a criminal charge or to a penalty or forfeiture. (3) The police officer may reduce into writing any statement made to him in the course of an examination under this section; and if he does so, he shall make a separate and true record of the statement of the statement of each such person whose statement he records." Section 161 makes no distinction between one person acquainted with facts and circumstances of a case and another. It does not divide them into the classes of complainants, accused persons and witnesses, instead they are all interrogates. A statement made under Section 161 can only be used for the purpose of contradicting the evidence of a prosecution witness. It cannot be used for corroborating the evidence of a prosecution witness. Section 173 however provides for a final report after completion of investigation and showing the results of such investigation. The report shall accompanied by all documents or relevant extracts on which the prosecution proposes to rely and the statements recorded under Section 161 of all the persons whom, the prosecution proposes to examine as the witnesses. 21. The criminal law in India and the Police Organisation, which is based upon it, are both founded on the principle that public order depend, essentially upon the responsibility of every member of the community within the law to prevent offences and to arrest offenders. 21. The criminal law in India and the Police Organisation, which is based upon it, are both founded on the principle that public order depend, essentially upon the responsibility of every member of the community within the law to prevent offences and to arrest offenders. This fundamental principle must be thoroughly understood and borne constantly in mind by Police Officers of all ranks. In a criminal case the Investigating Officer should behave like an impartial friend of the victim and there should be no room for entertaining a doubt, about the fair investigation of the case. Since in the case on hand the evidence of Prem Shankar and Rakesh, on scrutiny, is found credible and acceptable, we cannot be influenced by the machinations demonstrated by Gordhan Singh, 10 in conducting investigation and in preparing the records so unscrupulously. In a similar situation, their Lordships of the Supreme Court in State of Karnataka v. K. Yarappa Reddy (1999 Cri LR (SC) 723): (2000 Cri W 400) indicated thus :(Para 19) ............It can be guiding principle that as investigation is not the solitary area for judicial scrutiny in a criminal trial, the conclusion of the Court in the case cannot be allowed to depend solely on the probity of investigation. It is well nigh settled that even if the investigation is illegal or even suspicious the rest of evidence must be scrutinised independently of the impact of it. Otherwise criminal trial will plummet to the level of the investigating officers ruling the roost. The Court must have predominance and preeminence in criminal trials over the action taken by investigating officers. Criminal justice should not be made the casualty for the wrongs committed by the investigating officer in the case. In other words, if the Court is convinced that the testimony of a witness to the occurrence is true, the Court is free to act on it albeit investigating officers suspicious role in the case." (Emphasis Supplied) COGNIZANCE UNDER SECTION 319. Cr. P. C.: 22. That takes us to the next submission of learned senior counsel that cognizance of fresh offence against newly added accused Susya alias Lokesh could not be taken in the same trial According to learned counsel the trial Court ought to have tried twp cases separately one after the other and pronounced judgments separately. Cr. P. C.: 22. That takes us to the next submission of learned senior counsel that cognizance of fresh offence against newly added accused Susya alias Lokesh could not be taken in the same trial According to learned counsel the trial Court ought to have tried twp cases separately one after the other and pronounced judgments separately. In Balbir Singh v. State of Haryana, (2.000) 1 SCC 285: (2000 Cri W 169) on which reliance is placed by learned Senior Counsel, following legal point was formulated by the Supreme Court (Para 2):- "The question of law which has arisen for determination rests in discovering the course to be steered by a Court of Session when two commitments are made before it pertaining to the same offence and pertaining to the same victim, one giving one version against one accused, and the other giving another against a different accused. In what manner should the Court of Session proceed when taking cognizance of the offence is the subject matter of debate in this appeal, Added thereto is the quest for fairness of trial and avoidance of prejudice to the accused." The backdrop of aforesaid legal point was that the Sessions Court rejected the story, which the police had propounded, after a full-fledged investigation, as untrue but the same trial Court approved the other divergent version as the true story. Resultantly the man who was shown as real murderer by the investigating agency got acquittal while the man whom the other side dubbed as the culprit stood convicted and sentenced. The fact situation of Balbirs case was that in the FIR informant Jagdish, accused Balbir and his brother Rajinder as the persons who shot the deceased but the Investigating Officer found Balbir to be not the culprit and instead 19-year old youngster Guria was discovered to have shot at the deceased. Guria was finally charge sheeted and the case was committed to the Court of Session. Informant Jagdish being dissatisfied with the action of investigating agency complained to the SP and thereafter filed complaint in the Court of Magistrate against Balbir and Rajinder. The Magistrate proceeded thereafter and eventually that case was also committed to the Court of Session. Under these circumstances the Supreme Court held that the trial Court ought to have tried two cases separately one after the other and pronounced judgment separately. 23. The Magistrate proceeded thereafter and eventually that case was also committed to the Court of Session. Under these circumstances the Supreme Court held that the trial Court ought to have tried two cases separately one after the other and pronounced judgment separately. 23. Ratio indicated in Balbir v. State of Haryana (2000 Cri W 169) (supra) is not applicable to the facts of the instant case. Here the case was committed to the Court of Session against Pintoo alias Kamal Kishore, Dinesh and Satish. Learned Sessions Court framed charges against Pintoo under Section 302, IPC and 3/25 Arms Act, whereas Dinesn and Satish were charged under Section 302/149, IPC till Aplil6, 2002 as many as 17 witnesses were examined. Thereafter application under Section 319, Cr. P. C. was filed for proceeding against Susya and Kalua. Learned trial Court allowed the application on July 8,2002. 24. Section 319, Cr. P.C. gives power to the Court to proceed against other persons appearing to be guilty of offences. It reads as follows: "319. Power to proceed against other persons appearing to be guilty of offence: (1) Where, in the course of any inquiry into, or trial of, an offence, it appears from the evidence that any person not being the accused has committed any offence for which such person could be tried together with the accused, the Court may proceed i against such person for the offence which , he appears to have committed. (2) Where such person is not attending the Court he may be arrested or summoned, as the circumstances of the case may require, for the purpose aforesaid. (3) Any person attending the Court although not under arrest or upon a summons, may be detained by such Court for the purpose of the inquiry into, or trial of, the offence which he appears to have committed. (4) Where the Court proceeds against any person under sub-section (1) then (a) The proceedings in respect of such person shall be commenced afresh and witnesses re-heard. (b) Subject to the provisions of clause (a) the case may proceed as if such person had been an accused person when the Court took cognizance of the offence upon which the inquiry, or trial was commenced." 25. (b) Subject to the provisions of clause (a) the case may proceed as if such person had been an accused person when the Court took cognizance of the offence upon which the inquiry, or trial was commenced." 25. In Annamma Cherian v. State of Kerala, (1990 Cri, LJ 1796) Kerala High Court (Honble K. G. Balakrishnan J. as his Lordship then was) had occasion to analyse Section 319, Cr. P.C. It was observed as under:- (Para 4) "Section 319 says that if in the course of inquiry into, or trial of, an offence, it appears from the evidence that any person other than the accused who are already on party array committed any offence for which such person could be tried together with the accused, the Court may proceed against such person for the offence which he appears to have committed. Sub-sec. (2) of S. 319 further says that if such person is not attending the Court the Court may arrest him and summon him for the purpose of proceeding against him. Sub-section (3) of S. 319 empowers the Court to detain such person for the purpose of any inquiry or trial of the offence which he appears to have committed. Sub-sec. (4)(l)(a) of S. 319 says that proceedings in respect of the person who is newly added as the accused shall be commenced afresh and the witnesses be reheard. Sub-section (4)(I)(b) of S. 319 raises a legal fiction that the case may proceed against the newly added accused as if such person had been an accused when the Court took cognizance of the offence upon which the inquiry or trial was commenced." 26. A bare look at Section 319, Cr. P.C. demonstrates that it authorises a Court to summon a person as an accused if the evidence before it shows that such person has committed any offence for which he could be tried together with the persons who are already being tried as an accused. 27. In Guriya alias Tabassum Tauquir v. State of Bihar (2007 (11) JT (SC) 438): ( AIR 2008 SC 95 ) the Apex Court had occasion to analyse Section 319. Cr. 27. In Guriya alias Tabassum Tauquir v. State of Bihar (2007 (11) JT (SC) 438): ( AIR 2008 SC 95 ) the Apex Court had occasion to analyse Section 319. Cr. P.C. and it was observed as under:- "Power under Section 319 of the Code can be exercised by the Court suomotu or on an application by someone including accused already before it, if it is satisfied that any person other than accused has committed an offence and he is to be tried together with the accused. The power is discretionary and such discretion must be exercised judicially having regard to the facts and circumstances of the case. Undisputedly, it is an extraordinary power which is conferred on the Court and should be used very sparingly and only if compelling reasons exist for taking action against a person against whom action had not been taken earlier. The word "evidence" in Section 319 contemplates evidence of witnesses given in Court. Under sub-section (4)(1)(b) of the aforesaid provision, it is specifically made clear that it will be presumed that newly added person had been an accused person when the Court took cognizance of the offence upon which the inquiry or trial was commenced. That would show that by virtue of sub-section (4)(1)(b) a legal fiction is created that cognizance would be presumed to have been taken so far as newly added accused is concerned." 28. Again in Mohd. ShaH v. Mohd. Rafiq (2007 (5) JT (SC) 562) the Apex Court interpreted Section 319 thus (Para 13):- "Before a Court exercises its discretionary jurisdiction in terms of Section 319 of the Code of Criminal Procedure, it must arrive at the satisfaction that there exists a possibility that the accused so summoned is in all likelihood would be convicted. Such satisfaction can be arrived at inter alia upon completion of the cross-examination of the said witness. For the said purpose, the Court concerned may also like to consider other evidence. ~ 29. Section 319 Cr. P.C. was also subject-matter in Y. Saraba Reddy v. Puthur Rami Reddu 2007 (6) JT (SC) 460) : (2007 AIR SCW 6258) and the Apex Court propounded as follows (Para 12) :- "The trial Court has undoubted jurisdiction to add any person not being the accused before it to face the trial along with other accused persons. Section 319 Cr. P.C. was also subject-matter in Y. Saraba Reddy v. Puthur Rami Reddu 2007 (6) JT (SC) 460) : (2007 AIR SCW 6258) and the Apex Court propounded as follows (Para 12) :- "The trial Court has undoubted jurisdiction to add any person not being the accused before it to face the trial along with other accused persons. if the Court is satisfied at any stage of the proceedings on the evidence adduced that the persons who have not been arrayed as accused should face the trial. It is further evident that such person even though had initially been named in the FIR as an accused, but not charge-sheeted. Can also be added to face the trial. The trial Court can take such a step to add such persons as accused only on the basis of evidence adduced before it and not on the basis of material available in the charge-sheet or the case diary, because such materials contained in the charge-sheet or the case diary do not constitute evidence. (Emphasis Supplied) 30. In the instant case learned trial Court was satisfied on the evidence adduced before it that Susya and Kalua. who had not been arrayed as accused should face the trial. The order passed by learned trial Court taking cognizance against Susya and Kalua under Section 319. Cr. P.C. was perfectly legal and we approve it. 31. Since the trial Court proceeded against Susya and Kalua under Section 319. Cr. P.C. they could be tried together with the accused, who were already being tried as accused. The argument of learned counsel that separate trial against Susya and Kalua were necessary is devoid of merit. 32. That apart since the contention in regard to illegality in trial was never raised before the Sessions Court, we in these appeals cannot permit the appellants to raise this objection as has been observed by the Supreme Court in Balbir v. State of Haryana (2000 Cri W 169) (supra) (para 9):- “It must be pointed out that when the trial in the case began before the Sessions Court the appellant did not make any contention that a joint trial of both the cases must be ordered. Having not done so he cannot raise such a contention on that score at any later stage." 33. Having not done so he cannot raise such a contention on that score at any later stage." 33. Next contention of learned counsel is that the prosecution led two sets of evidence, each one of which contradicts each other. According to learned counsel in the first set of evidence Pin too was shown the author of fatal injury whereas in second set it was Susya, who caused fatal injury. Reliance is placed on Harchand v. State of Haryana ( AIR 1974 SC 344 ) where the prosecution led two sets of evidence, each one of which contradicts the other, the Apex court held that it is difficult to find the conviction of the accused. We are afraid, we cannot agree with this submission. As already noticed by us that Prem Shankar and Rakesh, from the very beginning stated that it was Susya, who opened fire at Lakhan and killed him. This version was consistent throughout. No prosecution witness even stated that Pintoo opened fire at Lakhan. The prosecution did not lead two sets of evidence in this case. 34. In so far as the argument in regard to error in making amendment of charge is concerned we find that after Susya and Kalua put up appearance the charge against Pin too got amended. Initially Pintoo was charged under Section 302, IPC and 3/25 Arms Act, but afterwards only alternative charge under Section 302/149, IPC was added. There is nothing on record to show that Pintoo was misled either by the said alternative charge or it had occasion a failure of justice. In such a situation Section 464(1), Cr. P.C. can be invoked which reads as follows:- “No finding sentence or order by a Court of competent jurisdiction" shall be deemed invalid merely on the ground that no charge was framed or on the ground of any error, omission or irregularity in the charge including any mis-joinder of charge, unless, in the opinion of the Court of appeal, confirmation or revision, a failure of justice has in fact been occasioned thereby." Since failure justice has not been occasioned to appellant Pintoo alias Kamal Kishore by adding alternative charge, he cannot be permitted to raise argument in regard to error or irregularity in the charge. SECTION 34. IPC. 35. SECTION 34. IPC. 35. Coming to the question as to whether appellants Pintoo alias Kamal Kishore and Kalua alias Koshal Kishore, could be contvicted under Section 302/34 IPC, we in that there is consistent evidence of Prem Shankar and Rakesh against them that they had shared common intention with Susya. They in prder to strike terror in the market opened fire in the air and thereafter Lakhan was shot dead by Susya. Section 34. IPC was considered by Privy Council in Barendra Kumar Ghosh v. King Emperor (AIR 1925 Privy Council 1) and it was indicated thus:"So 34 deals with the doing of separate acts similar or diverse by several persons: if all are done in furtherance of a common intention each person is liable for the result of them all as if he had done them himself for "that act" and "the act" in the latter part of the section must include the whole action covered by "a criminal act" in the first part because they refer to it. (Emphasis supplied) 36. In Shreekantiah Ramayya Munipalli v. State of Bombay. ( AIR 1955 SC 287 ) the Apex Court analysed Section 34 and observed as under: "It is the essence of S. 34 that the person must be physically present at the actual commission of the crime. He need not be present in the actual room; he can, for instance, stand guard by a gate outside ready to warn his companions about any approach of danger or wait in a car on a nearby road ready to facilitate their escape, but he must be physically present at the scene of the occurrence and must actually participate in the commission of the offence in some way or other at the time the crime is actually being committed. The antithesis is between the preliminary stages, the agreement. the preparation, the planning, which is covered by S.109, and the stage of commission when the plans are put into effect and carried out; S.34 is concerned with the latter. The antithesis is between the preliminary stages, the agreement. the preparation, the planning, which is covered by S.109, and the stage of commission when the plans are put into effect and carried out; S.34 is concerned with the latter. It is true there must be some sort of preliminary planning which mayor may not be at the scene of the crime and which may have taken place long before hand, but there must be added to it the element of physical presence at the scene of occurrence coupled with actual participation, which of course, can be of a passive character such as standing by a door, provided that is done with the intention of assisting in furtherance of the common intention of them all and there is a readiness to play his part in the pre-arranged plan when the time comes for him to act. The emphasis in S. 34 is on the word "done". It is essential that the accused join in the actual doing of the act and not merely in planning its perpetration. If the accused was not present he cannot be convicted with the aid of S. 34 (AIR 1925 PC 1) Relied on." 37. Section 34 is it originally stood, was in the following terms: "When a criminal act is done by several persons, each of such persons is liable for that act in the same manner as if the act was done by him alone." In 1870, it was amended by the insertion of the words "in furtherance of the common intention of all" after the word "persons" and before the word "each", so as to make the object of the section clear. Section 34 lays down a principle of joint liability in the doing of a criminal act. The section does not say "the common intentions of all" nor does it say "an intention common to all". Under the section, the essence of that liability is to be found in the existence of a common intention animating the accused leading to the doing of a criminal act in furtherance of such intention. The section does not say "the common intentions of all" nor does it say "an intention common to all". Under the section, the essence of that liability is to be found in the existence of a common intention animating the accused leading to the doing of a criminal act in furtherance of such intention. To invoke the aid of Section 34 successfully, it must be shown that the criminal act complained against was done by one of the accused persons in the furtherance of the common intention of all; if this is shown, then liability for the crime may be imposed on anyone of the persons in the same manner as if the act were done by him alone. 38. In the instant case as already noticed appellants Pin too and Kalua shared common intention with appellant Susya to kill Lakhan. Pintoo, Kalua and Susya at the time of incident were armed with Kattas. Initially Pintoo and Kalua, in order to strike terror in the market opened fire in the air, thereafter Susya made fire from his Katta at Lakhan, hitting Lakhan on the left side of the abdomen and killed him. In our opinion Pintoo, and Kalua were rightly held guilty under Section 302/34, IPC. 39. As a result of the above discussion, we find no merit in the appeals and the same are accordingly dismissed. Appellants Pintoo alias Kamal Kishore and Kalua alias Koshal Kishore, who are on bail shall be forthwith taken in custody and their bail bonds stand cancelled. Appeals dismissed.