JUDGMENT 1. - The appellants, three in number, were the accused on the file of learned Additional Sessions Judge (Fast Track) No. 1 Bundi bearing Sessions Case No. 201/2001. Learned Judge vide judgment dated 13.6.2003 convicted appellant Prabhu Lal under Section 302 I.P.C. whereas appellants Jaswant Singh and Goverdhan Singh were found guilty under Section 302/34 I.P.C. Each of the appellants were sentenced to suffer imprisonment for life and fine of Rs. 2000/-, in default to further suffer simple imprisonment for three months. 2. It is the prosecution case that on 31.1.1996 around 2.30 P.M. when Jai Lal (since deceased) was going towards his field, the appellants pelted stones at him and caused injury on his person, as a result of which he fell down. Jai Lal was thereafter run over by the tractor driven by Prabhu Lal. Jaswant Singh and Goverdhan Singh were also sitting on the tractor. Jai Lal was removed to M.B.S. Hospital Kota where he was declared dead. Jamna Lal (PW-3) submitted written report of the incident at Police Station Talera (Bundi). On that report case under Section 304 I.P.C. was registered and investigation commenced. Necessary memos were drawn and after completion of investigation charge sheet was filed. In due course the case came up for trial before the Court of learned Additional Sessions Judge (Fast Track) No. 1 Bundi. Charges under Sections 302 and 302/34 I.P.C. were framed. The appellants denied the charges and claimed trial. The prosecution in support of its case examined as many as 23 witnesses. In the explanation under Section 313 Cr.P.C., the appellants claimed innocence. No witness in defence was however examined. Learned trial Judge on hearing final submissions convicted and sentenced the appellants as indicated herein above. 3. Death of Jai Lal was homicidal in nature. As per post mortem report (Ex.P-2) following ante mortem injuries were found: 1. Bruise 4 in number 1/4" x 1/4" on forehead. 2. Bruise 1/4" x 1/4" on nose. 3. Abrasion 2" x 1/2" on epigastric region. 4. Abrasion 4" x 2" on Right thigh. 5. Lacerated wound 3" x 1" on left parietal region scalp. 6. Abrasion with black staining 6" x 4" on dorsum of right iliac region. 7. Abrasion 3" x 2" on upper part of back. According to Dr. Bruise 1/4" x 1/4" on nose. 3. Abrasion 2" x 1/2" on epigastric region. 4. Abrasion 4" x 2" on Right thigh. 5. Lacerated wound 3" x 1" on left parietal region scalp. 6. Abrasion with black staining 6" x 4" on dorsum of right iliac region. 7. Abrasion 3" x 2" on upper part of back. According to Dr. Radhey Shyam Mehra (PW-2) the cause of death was extensive injuries on abdominal content and right iliac bone fracture leads to severe hemorrhage shock. 4. We have heard rival submissions and scanned the material on record. 5. The prosecution case is founded on the testimony of Mahaveer (PW-4) and Satya Narayan (PW-7). Mahaveer in his deposition stated that while he along with Jai Lal and Satya Narayan was going on foot to the field, a tractor came from the back side. It was driven by Prabhu Lal and Jaswant Singh, Gordhan Singh and Bhairu Lal were sitting on the Trolly. The persons sitting in the trolly pelted stones at Jailal who fell down. Prabhu Lal then drove tractor over Jai Lal and crushed him under the wheels of tractor. In his cross-examination Mahaveer stated that there was no enmity between the deceased and the appellants " ;g lgh gS fd t;yky vkSj tloar flag oxSjg eqyfteku ds chp dksbZ iqjkuh nq'euh ugha FkhA " 6. Testimony of Mahaveer gets corroboration from the evidence of Satya Narayan (PW-7). In his cross-examination Satya Narain admitted that prior to the incident the relations between the deceased and the appellants were cordial. He also stated that death of Jai Lal was accidental. Gokal Ram (PW-23) who investigated the case, deposed that it was accidental death. " V~sDVj dh VDdj ls e`rd dh ekSr gqbZ FkhA " 7. Conjoint reading of the statements of Mahaveer (PW-4), Satya Narain (PW-7) and Gokul Ram Investigating Officer (PW-23) demonstrates that appellant Prabhu Lal had no intention to kill Jai Lal and he drove the tractor at Jai Lal only to frighten him. It can however be presumed that Prabhu Lal had knowledge that his act of driving the tractor at Jai Lal was likely to cause death of Jai Lal even though he had no intention of causing death or such bodily injury as is likely to cause death. Appellant Prabhu Lal, therefore, is found guilty of the offence punishable under Section 304 Part II I.P.C.8. Appellant Prabhu Lal, therefore, is found guilty of the offence punishable under Section 304 Part II I.P.C.8. Corning to the charge under Section 302/34 I.P.C. against appellants Jaswant Singh and Goverdhan Singh, we find that the prosecution is not able to establish that they shared joint responsibility for the criminal act of Prabhu Lal. They were only sitting on the trolly. It was Prabhu Lal alone who suddenly decided to frighten Jai Lal, drove tractor at him and run over Jai Lal. Jaswant Singh and Goverdhan Singh did not join Prabhu Lal in doing criminal act. They did not participate and engage themselves in furtherance of the common intention which might be of a pre concert or pre arranged plan or one manifested or developed at the spur of moment in the course of the commission of offence. In such a situation Jaswant Singh and Goverdhan Singh cannot be held guilty under Section 302/34 I.P.C.9. In Gopi Nath v. State of U.P., (2001) 6 SCC 620 : 2001 Cr.L.R. (SC) 513 , the Apex Court indicated that: "Section 34 I.P.C. lays down the rule of joint responsibility for criminal acts performed by plurality of persons who joined together in doing the criminal act, provided that such commission is in furtherance of the common intention of all of them. Even the doing of separate, similar or diverse acts by several persons, so long as they are done in furtherance of a common intention, render each of such persons liable for the result of them all, as if he had done them himself, for the whole of the criminal action - be it that it was not over or was only a covert act or merely an omission constituting an illegal omission. The section is, therefore, attracted even where the acts committed by the different confederates are different when it is established in one way or the other that all of them participated and engaged themselves in furtherance of the common intention which might be of a preconcerted or prearranged plan or one manifested or developed at the spur of the moment in the course of the commission of the offence. The common intention or the intention of the individual concerned in furtherance of the common intention could be proved either from direct evidence or by inference from the acts or attending circumstances of the case and conduct of the parties. The common intention or the intention of the individual concerned in furtherance of the common intention could be proved either from direct evidence or by inference from the acts or attending circumstances of the case and conduct of the parties. The ultimate decision, at any rate, would invariably depend upon the inference deducible from the circumstances of each case." 10. In Sure v. State of U.P., (2001) 3 SCC 673 , the Apex Court had occasion to consider Section 34 I.P.C. and it was held thus: "The dominant feature for attracting Section 34 I.P.C. is the element of participation in absence resulting in the ultimate "criminal act". For appreciating the ambit and scope of Section 34, the preceding Sections 32 and 33 have always to be kept in mind. Under Section 32 acts include illegal omissions. Section 33 defines the "act" to mean as well a series of acts as a single act and the word "omission" denotes as well a series of omissions as a single omission. The "act" referred to in the later part of Section 34 means the ultimate criminal act with which the accused is charged of sharing the common intention. The accused is, therefore, made responsible for the ultimate criminal act done by several persons in furtherance of the common intention of all. The section does not envisage the separate act by all the accused persons for becoming responsible for the ultimate criminal act. If such an interpretation is accepted, the purpose of Section 34 shall be rendered infructuous. Participation in the crime in furtherance of the common intention cannot conceive of some independent criminal act by all accused persons, besides the ultimate criminal act because for that individual act law takes care of making such accused responsible under the other provisions of the Code. What is required under law is that the accused persons, sharing the common intention must be physically present at the scene of occurrence and be shown not to have dissuaded themselves from the intended criminal act for which they shared the common intention. Culpability under Section 34 cannot be excluded by mere distance from the scene of occurrence. The presumption of constructive intention, however, has to be arrived at only when the Court can, with judicial servitude, hold that the accused must have preconceived the result that ensued in furtherance of the common intention." 11. Culpability under Section 34 cannot be excluded by mere distance from the scene of occurrence. The presumption of constructive intention, however, has to be arrived at only when the Court can, with judicial servitude, hold that the accused must have preconceived the result that ensued in furtherance of the common intention." 11. Learned trial Court did not properly appreciate Section 34 I.P.C. and committed illegality in convicting appellants Jaswant Singh and Goverdhan Singh under Section 302/34 I.P.C.12. For these reasons, we dispose of instant appeal in the following terms:- (i) We partly allow the appeal of Prabhu Lal and instead of Section 302 we convict him under Section 304 part II I.P.C. Looking to the fact that Prabhil Lal has already undergone confinement for a period of more than five years and ten months, the ends of justice would be met in sentencing him to the period already undergone by him in confinement. Appellant Prabhu Lal, who is in jail, shall be set at liberty forthwith, if he is not required to be detained in any other case. (ii) We allow the appeal of Jaswant Singh and Goverdhan Singh and acquit them of the charge under Section 302/34 I.P.C. These appellants are on bail, they need not surrender and their bail bonds stand discharged. (iii) The impugned judgment of learned trial Court stands modified as indicated above. Appeal disposed of. *******