Judgment ( 1. ) THE appellants have preferred this appeal against the judgment dated 8-7-2001, passed by learned XIV Additional Sessions Judge, Indore, in S. T. No. 389/2000, whereby convicting each of them for the offence punishable under section 302/34 of the IPC and sentenced them to suffer imprisonment for life with fine of Rs. 1,000/- each, and in default of payment of fine, each of them to undergo further RI of six months. ( 2. ) ACCORDING to the prosecution case as placed before the Trial Court is that on 10-10-2000, deceased Bablu @ Naresh was going with his brother hitendra Kumar (P. W. 6) on scooter by the area known as "somnath Ki Nai chal", towards his house. Deceased was driving Scooter No. MP 09-630 and his brother Hitendra was a pillion rider. When deceased and Hitendra reached near the house of appellant Vishnu Singh, the appellants were standing there and they stopped Naresh. Appellants asked as to how deceased came to their locality and started abusing in the name of mother. Deceased objected the abuse on which, appellants issued warning and appellant Vishnu Singh started assaulting the deceased by lathi and appellant Gajju @ Gajendra took out knife from his pocket and dealt blows whereas other two appellants caught hold of the deceased. Eye witness Hitendra Kumar (P. W. 6) raised alarm, which attracted two police personnel. The appellants after assaulting the deceased fled away from the scene of occurrence. Police took deceased Naresh in an auto-rickshaw to hospital. Witnesses Ajay Malviya (P. W. 16) and Anil Nayak (P. W. 11) also reached on the spot. Hitendra Kumar (P. W. 6) lodged the report (Exh. P-2) in the Police Station, which was recorded by Sub-Inspector Bhaiyalal Jat (P. W. 3 ). It is said that deceased Bablu @ Naresh abducted daughter of appellant Vishnu singh before one year and kept her for one or two days, thereafter, she was brought back by Vishnu Singh because of which, they were having inimical terms. Vishnu Singh did not lodge any report about abduction of her daughter. In the hospital, on examination by Doctor, deceased Bablu was declared dead. Shri Jat (P. W. 3) reached on the spot and prepared spot map (Exh. P-3 ). He also effected seizure of blood stained and control earth through seizure memo (Exh. P-4 ). Vishnu Singh did not lodge any report about abduction of her daughter. In the hospital, on examination by Doctor, deceased Bablu was declared dead. Shri Jat (P. W. 3) reached on the spot and prepared spot map (Exh. P-3 ). He also effected seizure of blood stained and control earth through seizure memo (Exh. P-4 ). Sub-Inspector P. S. Rajput (P. W. 13) completed the inquest inquiry and prepared report (Exh. P-16), thereafter, sent the dead body for post-mortem examination. Post-mortem of deceased was conducted by Dr. Ravindra choudhary (P. W. 7) and its report is Exh. P-5. Appellants were arrested and weapons were seized from their possession on their disclosure statement. Seized articles were sent to Forensic Science Laboratory and its report is Exh. P-20. On completion of investigation, appellants were charge-sheeted for commission of offence under Section 302/34 of the IPC. 2. The appellants denied their complicity with the offence and claimed for trial. They have not examined any witness in defence whereas prosecution has examined, in all, 16 witnesses and adduced 19 documents in evidence to prove its case. The learned Trial Court found the prosecution case proved against all the appellants, convicted and sentenced them as noted herein above. ( 3. ) LEARNED Counsel for the appellants has submitted that conviction of all the appellants under Section 302 of the IPC with the aid of Section 34 is not sustainable. According to the statement of solitary eye-witness Hitendra Kumar (P. W. 6), when they were going on scooter and reached near the house of appellant Vishnu Singh, appellants Vishnu Singh and Gajju @ Gajendra were standing outside the house and they stopped them. They started abusing in the name of mother, which was objected by deceased. At that juncture, appellants vijaysingh and Madhavsingh also came outside from the house on hearing abuse. Further say of witness Hitendra (P. W. 6) is that appellant Gajju @ gajendra started assaulting Bablu @ Naresh with a Chhoori (knife) and appellant Vishnu Singh with a lathi whereas appellants Vijaysingh and madhavsingh caught hold of deceased Naresh. Hitendra tried to save his brother but the appellants did not allow him, therefore, he started crying which was heard by two Police Constables. Witnesses Anil (P. W. 11) and Ajay Malviya (P. W. 16) also reached on the spot, who had also witnessed the incident. ( 4. Hitendra tried to save his brother but the appellants did not allow him, therefore, he started crying which was heard by two Police Constables. Witnesses Anil (P. W. 11) and Ajay Malviya (P. W. 16) also reached on the spot, who had also witnessed the incident. ( 4. ) THE learned Counsel for the appellants has submitted that appellants were not knowing about arrival of the deceased and witness Hitendra in front of their house. They were also not standing together. In the FIR, it is stated that appellant Gajju @ Gajendra took out knife from his pocket and there is no evidence on record that other three appellants were knowing the possession of knife by Gajju @ Gajendra and he would use the same. According to learned Counsel, incident occurred all of a sudden, therefore, Section 34 of the IPC would not be attracted. It is also submitted that the statement of eye-witness Hitendra Kumar (P. W. 6) is not acceptable regarding overt act of appellants No. 1 Vijaysingh and No. 3 Madhavsingh. In sum and substance, according to learned Counsel, only appellants Vishnu Singh and Gajju @ gajendra would be liable for their individual act. ( 5. ) ON the other hand, learned Counsel for the State has supported the impugned judgment and finding, passed by the learned Trial Court. ( 6. ) HAVING heard learned Counsel for the appellants and after perusal of the entire record, this Court is of the view that there is substance in the argument of learned Counsel for the appellants about application of Section 34 of the IPC for the purposes of conviction of all the appellants. There is no evidence on record that appellants were having pre - meeting of mind, premeditation and pre-plan. It is also not clear from the statement of solitary eyewitness Hitendra Kumar (P. W. 6) that appellant Gajju @ Gajendra was possessing knife in his pocket and would use the same for causing injuries to deceased. The basic ingredients of Section 34 of the IPC are missing in the instant case. ( 7. ) SECTION 34 reads as under:-Acts done by several persons in furtherance of common intention.-"when a criminal act is done by several persons in furtherance of the common intention of all, each of such persons is liable for that act in the same manner as if it were done by him alone. ( 7. ) SECTION 34 reads as under:-Acts done by several persons in furtherance of common intention.-"when a criminal act is done by several persons in furtherance of the common intention of all, each of such persons is liable for that act in the same manner as if it were done by him alone. " ( 8. ) FOR invoking application of Section 34 of the IPC, prosecution is required to establish common intention of all the accused participated in the incident and their action in furtherance of the common intention. Specifically, overt act by the individual accused is not necessary, but if prosecution is able to establish that if the accused share the common intention and in furtherance of anyone or all acted and committed crime, then all would be liable for the same. The common intention can also be developed on spot if convincing and reliable evidence is available. (See Supreme Court Judgment passed in case of State of orissa Vs. Arjun Das, AIR 1999 SC 3229 ). ( 9. ) IN case of Ramashish Yadav Vs. State of Bihar, (1999) Vol. 8 SCC 555), the Supreme Court has observed thus:- "it requires a pre-arranged plan and presupposes prior concert, therefore, there must be prior meeting of mind. It can also be developed at the spur of moment but there must be pre arrangement or premeditated concert. " ( 10. ) APPLYING aforesaid guidelines in the instant case, there is no sufficient and convincing evidence about pre meeting of mind and pre-arranged plan among the appellants. Deceased and eye-witness Hitendra Kumar (P. W. 6) were just bypassing from the locality of appellants, and as they reached in front of the house of appellant Vishnu Singh, appellant Vishnu Singh alone stopped the deceased and abused him. At that juncture, other appellants also reached and appellant Gajju @ Gajendra took out knife from his pocket and gave blows causing injuries and only injury caused by him on left scapula region resulted into death of deceased. Appellant Vishnu Singh had used lathi and caused contused abrasions, simple injuries, which did not contribute in death of deceased. Looking to the number of injuries found on the person of deceased (ten in number) on various parts of the body, by Dr. Ravindra Choudhary (P. W. 7), who proved post-mortem report (Exh. Appellant Vishnu Singh had used lathi and caused contused abrasions, simple injuries, which did not contribute in death of deceased. Looking to the number of injuries found on the person of deceased (ten in number) on various parts of the body, by Dr. Ravindra Choudhary (P. W. 7), who proved post-mortem report (Exh. P-5), the overt act of appellants Vijaysingh and Madhavsingh, i. e. , catching hold of the deceased is not acceptable. If these two accused caught hold of the deceased during the course of assault by appellant Vishnu Singh with lathi and appellant Gajju @ Gajendra with knife, the injuries found on the person of deceased could not be caused and blows given by appellants Vishnu Singh and Gajju @ Gajendra could also fell on the person of Vijaysingh and Madhavsingh. In this view of the matter, the appellant vishnu Singh would be liable for his individual act causing simple injuries by lathi and appellant Gajju @ Gajendra would be liable for causing injuries by knife (chhoori), out of which, injury on left scapula region proved fatal, which damaged the heart and ventricle of the deceased. ( 11. ) EYE-WITNESS Anil (P. W. 11) cannot be relied upon because he did not name the appellants and identified them for the first time in Court. He has admitted in his statement about showing and identification of the appellants in police Station. The statement of Anil can be acted upon only upto the extent of happening of the incident as stated by eye-witness Hitendra Kumar (P. W. 6), but his statement cannot be relied upon for establishing the identity of the appellants. The third eye-witness Ajay Malviya (P. W. 16) has turned hostile and his statement is not helpful to the prosecution. ( 12. ) IN the result, for the foregoing discussion, this appeal is allowed in part. Conviction and sentence of the appellants as passed by the learned Trial court are hereby set aside. Appeal of appellants No. 1 Vijay Singh and No. 3 madhav Singh are allowed, they are acquitted. Both are on bail. Their bail bond and surety bond shall stand discharged. Appellant No. 2 Vishnu Singh is convicted under Section 323 of the IPC and sentenced to RI for one year. He has already completed his sentence and he is on bail. His bail bond and surety bond are also cancelled. Both are on bail. Their bail bond and surety bond shall stand discharged. Appellant No. 2 Vishnu Singh is convicted under Section 323 of the IPC and sentenced to RI for one year. He has already completed his sentence and he is on bail. His bail bond and surety bond are also cancelled. Conviction of appellant No. 4 Gajju @ Gajendra under section 302/34 of the IPC is altered into Section 302 of the IPC and he is sentenced to RI for life. It is settled legal position that if accused is charged with the aid of Section 34 of the IPC for substantive offence, he can be convicted for substantive offence if evidence is available. Appellant Gajju @ Gajendra was charged by learned Trial Court under Section 302/34 of the IPC, but it is clear from the FIR and the statement of witnesses recorded under Section 161 of the cr. PC that major injuries were caused by sharp edged weapon by this appellant, therefore, omission to frame a separate charge under Section 302 of the IPC would not cause any prejudice to this appellant and he can be convicted under section 302 of the IPC, simpliciter. Reliance is placed on Supreme Court judgment, passed in case of "willie (William) Slane Vs. State of M. P. , AIR 1956 SC 116 ". ( 13. ) OFFICE is directed to send a copy of this order alongwith record immediately to the Trial Court.