Judgment SUNIL KUMAR SINHA, J. (1) This appeal is directed against the judgment dated 29th of August, 1991 passed in Sessions Trial No. 240/89 by the Sessions Judge, Raipur. Appellant No.1 has been convicted u/S. 302 IPC and appellants 2 and 3 have been convicted u/S. 302/34 IPC and all have been sentenced to undergo imprisonment for life. (2) The facts, briefly stated, are as under:- Deceased Tulsiram Sahu was the Sarpanch of Gram Panchayat, Urkura. Tulsiram had allotted certain plots to Pahalwan (PW-5), Bhondu (PW-17) and the appellants for constructions of the houses. Appellant No.2 - Dau @ Krishna Kumar had encroached upon the plots of Pahalwan and Bhondu and was raising objections to their allotments. On 16-6-1989, when Pahalwan and Bhondu went to take possession of their plots, they were obstructed by appellant No. 2 who did not allow them to enter in the said plots. On this, they went to deceased Tulsiram and made complaints. Tulsiram accompanied these two persons, went to the plots and tried to settle the matter, but the appellants did not hear him. Tulsiram, there after, went to police station and lodged the report (Ex. P/5). He was accompanied by village Kotwar Raghunath, Pahalwan and Bhondu. The allegations are that when they were returning to the village, after lodging the report, at about 10.00 p.m., the appellants and co-accused Bramha Prasad (a juvenile whose charge-sheet was filed before the Juvenile Board) stopped them on the way in village Urkura near the house of the deceased and dragged the deceased in a gali situated near the house of one Ramgopal. Appellant No. 1 gave repeated knife blows to the deceased. The other three accused persons, including the two appellants, were holding the deceased. Incident was witnessed by 2 eye-witnesses namely Pahalwan (PW-5) and Bhondu (PW-17). The deceased, any how, was taken to his house, where he made oral dying declaration before his daughter- Sakuntla (PW-2) and wife Champi Bai (PW-3). Then he was taken to the police station by an auto-rikshaw by Kanslal (PW-1), who lodged the First Information Report (Ex. P/1). Thereafter the deceased was taken to the hospital, where he was declared dead. In the post-mortem examination, the Autopsy Surgeon, Dr. D. C. Jain (PW-11), noticed following external injuries :- (i) Punctured wound 1" x 1/4" on the left side of the chest in the 3rd inter costal space. P/1). Thereafter the deceased was taken to the hospital, where he was declared dead. In the post-mortem examination, the Autopsy Surgeon, Dr. D. C. Jain (PW-11), noticed following external injuries :- (i) Punctured wound 1" x 1/4" on the left side of the chest in the 3rd inter costal space. The wound was going deep in chest cavity; (ii) Punctured wound 3/4" x 1/4" x 1", 1" medial and above injury No. 1; (iii) Punctured wound 3/4" x V4" x 1" on the left side of the chest in 6th inter costal space; (iv) Punctured wound 1" x 1/4 on the left side of the chest in 7th inter costal space going deep into the abdomen. (v) and (vi) Punctured wound 1" x 1/4" x 2" on the medial side of the right arm exit was 1/2'' x 1/4". On internal examination, he noticed that injury No. 1 was going deep into the chest cavity cutting the lung and penetrating the heart through and through Injries No.2 and 3 were cutting pluera and the left lung. Injury Nos.3 was cutting the dipharam. Injury No. 4 was penetrating the abdomen and cutting the small intestine. All the injuries were ante-mortem, caused ; by sharp and penetrating weapon like a knife and were sfficient to cause death in ordinary course of nature. The death of the deceased was homicidal. The case of the prosecution was based on the eye-witnesses account of Pahalwan (PW-5) and Bhondu (PW-17) as also the oral dying declaration made before Sakuntla, (PW-2) and Champi Bai (PW-3). (3) The learned Sessions Judge believed the testimonies of eye-witnesses and the witnesses before whom the oral dying declaration was made and convicted and sentenced the appellants as aforementioned. It was held that while appellant No. 1 assaulted the deceased by knife with intention to cause death, the other two appellants shared common intention for the said act and all were liable for punishment as above. (4) MRS. Renu Kochar, learned counsel appearing on behalf of the appellants, has not disputed the homicidal death of the deceased. She argued that the testimonies of the eyewitnesses were not reliable and the oral dying declaration said to be made before the daughter and wife was also suspicious. (4) MRS. Renu Kochar, learned counsel appearing on behalf of the appellants, has not disputed the homicidal death of the deceased. She argued that the testimonies of the eyewitnesses were not reliable and the oral dying declaration said to be made before the daughter and wife was also suspicious. About appellants 2 and 3, she also argued that even if, the entire evidence led by the prosecution is taken at its face value, these two appellants would not be liable for punishment with the aid of Section 34 IPC, as there is hardly any evidence to show that they shared common intention to commit murder of the deceased. On the other hand, Mr. Kishore Bhaduri, learned Additional Advocate General appearing on behalf of the State, opposed these arguments and supported the judgment passed by the Sessions Court. (5) We have heard the learned counsel for the parties at length and have also perused the records of the Sessions case. (6) PAHALWAN (PW-5) deposed that "He had gone to police station along with deceased Tulsiram. Bhondu (PW-17) and Kotwar- Raghunath had also accompanied them. At about 9-10.00 p.m., they returned to the village. He, along with Bhondu, was going to drop the deceased to his house. The appellants and juvenile Bramha Prasad met them in the way near the house of Ramgopal. They caught the deceased and dragged him to the gali of Ramgopal's house. Thereafter Satya Prakash took out a knife from the back- pocket of his full-pant and gave repeated knife blows on the chest of the deceased. The other 3 persons, including the 2 appellants, were holding the deceased. Seeing all this, he ran away from that place." The role attributed to appellants 2 and 3 regarding holding the deceased was on omission in his 161 statement (Ex.-D/3). In para 10 of his cross- examination, he deposed that he had stated that these 2 appellants were holding the deceased and he cannot tell the reason as to why this fact is not mentioned in his police case diary statement. Bhondu (PW-17) also deposed that "As soon as they reached near the house of Ramgopal, the appellants caught the deceased and they dragged him into the gali of the house of Ramgopal. It was 10.00 p.m. in the night. Bhondu (PW-17) also deposed that "As soon as they reached near the house of Ramgopal, the appellants caught the deceased and they dragged him into the gali of the house of Ramgopal. It was 10.00 p.m. in the night. Appellants 2 and 3 slapped the deceased and appellant No. 1 took out a knife and raised it over the deceased. Thereafter he ran away from the place of occurrence". According to this witness, he had not seen even appellant No.1 giving knife blows to the deceased. However, he saw appellants 2 and 3 assaulting the deceased by hands. He has never deposed that he saw appellants 2 and 3 holding the deceased so as to facilitate appellant No. 1 to assault him by knife. (7) MRS. Renu Kochar argued that it was difficult for these witnesses to identify the assailants because it was an incident of 10.00 p.m. We cannot accept this argument in view of the facts that the assailants and the witnesses as also the deceased, all were residents of same village and they were knowing each other. If the persons previously known had dragged the victim among the group of 2-3 persons, it would not be difficult to identify them because the factor of visibility would hardly come in the way in such circumstances. Had it been a case of seeing the assault from some distance, or the assailants would have been strangers to the witnesses and the victim, or a case of assailants having covered their faces, then the situation would have been different. (8) MRS. Renu Kochar then argued that among the 2 witnesses, Pahalwan (PW-5) is improving his version by adding the fact of holding the deceased by appellants 2 and 3, therefore, he cannot be relied on. She also pointed minor discrepancies in the evidence of Bhondu (PW-17). On the above omission in 161 statement of PW-5, his entire version cannot be disbelieved. After going through the entire evidence of the 2 witnesses and testing their veracity in light of the attaining circumstances of the case, we find that their evidence was fully reliable to the extent that deceased Tulsiram was assaulted by appellant No. 1 by a knife which he suddenly took out from back-pocket of his full-pant. So far as oral dying declaration of the deceased is concerned, this appears to be doubtful. So far as oral dying declaration of the deceased is concerned, this appears to be doubtful. According to the post-mortem report, the deceased received six punctured wounds on chest and abdomen. His lung was cut and the injury No. 1 has gone deep penetrating the heart through and through. Injury Nos. 2 and 3 were also cutting the pleura and the left lung. The dipharam and the small intestine was also cut. As per version of the 2 witnesses of dying declaration, they heard hue and cry of the deceased and ran away to the place of occurrence which was at a distance of 50-60 fts. from their house. This is also clear from the map (Ex. P/21). They went to that place and brought the deceased to their house and then the alleged oral dying declaration was made by the deceased to them. After hearing the cries that means after receiving the blows, the 2 witnesses i.e. Sakuntla (PW-2) and Champi Bai (PW-3) must have consumed reasonable time to go the place of occurrence and to come back to their house along with the deceased. Some more time must have to consume to make arrangements to bring him to the house. Therefore, we doubt that by that time the deceased was in a position to make dying declaration. The Doctor has also opined that after receiving such injuries, a person can speak hardly for 5 minutes and after that nothing is possible. Therefore, the factum of oral dying declaration made by the deceased to these 2 witnesses cannot be relied on and the learned Sessions Judge erred in recording the finding that the deceased made oral dying declaration before these 2 witnesses and their testimonies were reliable. (9) EVEN if we take out the oral dying declaration from consideration, we find that the evidence of the 2 eye-witnesses were reliable to hold that the deceased was dragged from main road to a nearby gali and appellant No.1 gave repeated knife blows to the deceased causing above injuries resulting to his death and the learned Sessions Judge has rightly held him liable for punishment u/S.302 IPC. (10) Now we shall examine the case of appellants 2 and 3 who have been convicted with the aid of Section 34 IPC. Section 34 has been enacted on the principle of joint liability in the doing of a criminal act. (10) Now we shall examine the case of appellants 2 and 3 who have been convicted with the aid of Section 34 IPC. Section 34 has been enacted on the principle of joint liability in the doing of a criminal act. The Section is only a rule of evidence and does not create a substantive offence. The distinctive feature of the Section is the element of participation in action. The liability of one person for an offence committed by another in the course of criminal act perpetrated by several persons arises under Section 34 if such criminal act is done in furtherance of a common intention of the persons who join in committing the crime. Direct proof of common intention is seldom available and, therefore, such intention can only be inferred from the circumstances appearing from the proved facts of the case and the proved circumstances. In order to bring home the charge of common intention, the prosecution has to establish by evidence, whether direct or circumstantial, that there was plan or meeting of minds of all the accused persons to commit the offence for which they are charged with the aid of Section 34, be it pre-arranged or on the spur of the moment; but it must necessarily be before the commission of the crime. The true contents of the section are that if two or more persons intentionally do an act jointly, the position in law is just the same as if each of them has done it individually by himself. The existence of a common intention amongst the participants in a crime is the essential element for application of this section. It is not necessary that the acts of the several persons charged with commission of an offence jointly must be the same or identically similar. The acts may be different in character, but must have been actuated by one and the same common intention in order to attract the provision. Please see Anil Sharma and others v. State of Jharkhand (2004) 5 SCC 679 : (2004 Cri LJ 2527). The Apex Court further clarified that in 1870, Section 34 was amended by 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 Section 34 clear. The Apex Court further clarified that in 1870, Section 34 was amended by 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 Section 34 clear. The section does not say "the common intention of all", nor does it say "and intention common to all". Under the provisions of Section 34 the essence of the 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. As a result of the application of principles enunciated in Section 34, when an accused is convicted under Section 302 read with Section 34, in law it means that the accused is liable for the act which caused death of the deceased in the same manner as if it was done by him alone. The provision is intended to meet a case in which it may be difficult to distinguish between acts of individual members of a party who act in furtherance of the common intention of all or to prove exactly what part was taken by each of them. (11) IN Dani Singh v. State of Bihar, 2005 SCC (Cri) 127 : (2004 Cri LJ 3328) (para 20) the Supreme Court held that to constitute common intention, it is necessary that intention of each one of the accused be known to the rest and shared by them. Undoubtedly, it is difficult to prove even the intention of an individual and, therefore, it is all the more difficult to show the common intention of a group of persons. But however difficult may be the task, the prosecution must lead evidence of facts, circumstances and conduct of the accused from which their common intention can be safely gathered. IN most cases, it has to be inferred from the act, conduct or other relevant circumstances of the case in hand. The totality of the circumstances must be taken into consideration in arriving at a conclusion whether the accused had a common intention to commit offence for which they can be convicted. The facts and circumstances of cases vary and each case has to be decided keeping in view the facts involved. Whether an act is in furtherance of the common intention is an incident of fact and not of law. The facts and circumstances of cases vary and each case has to be decided keeping in view the facts involved. Whether an act is in furtherance of the common intention is an incident of fact and not of law. (12) IN case on hand, though there is evidence that appellants 2 and 3 also dragged the deceased along with appellant No. 1, but there is no evidence that they assaulted the deceased by any weapon. However, it comes in the evidence of Bhondu (PW-17) that they also had slapped the deceased. The case of the prosecution that they were holding the deceased at the time of blows given by appellant No. 1, was also not established in view of the omission in 161 statement of Pahalwan (PW-5) which he could not explain. Therefore, the prosecution failed to establish that these 2 appellants, in fact, facilitated appellant No.1 to cause knife injuries to the deceased. On the contrary, it comes in the evidence of PW-5 and PW-17 that after dragging the deceased to the gali, appellant No. 1 suddenly took out a knife from his back- pocket and assaulted the deceased in the above manner. There is no evidence on record even to show that appellants 2 and 3 were having knowledge that appellant No. 1 was holding a knife in his back-pocket. Had there been a case that appellant No.1 was holding the knife in his hands since very beginning, the inferences would have been different. To constitute common intention, it was necessary that intention of each one of the accused be known to the rest and shared by them. Even from the act and conduct of appellants 2 and 3, we are unable to infer their common intention with appellant No. 1 for commission of murder of the deceased. We are of the view that the prosecution has completely failed to prove that these 2 appellants were sharing common intention with appellant No. 1 and conviction of these appellants u/S.302 with the aid of Section 34 IPC cannot be sustained. IN our considered view, in the above facts and circumstances, appellants 2 and 3 would be liable for punishment u/S.323 IPC for voluntarily causing hurt to the deceased. In the result, the appeal is partly allowed. IN our considered view, in the above facts and circumstances, appellants 2 and 3 would be liable for punishment u/S.323 IPC for voluntarily causing hurt to the deceased. In the result, the appeal is partly allowed. While confirming the conviction and sentence awarded to appellant No.1 u/S.302 IPC, we set aside the conviction and sentences awarded to appellants 2 and 3 u/S.302/34 IPC. Instead thereof, they are convicted u/S. 323 IPC and sentenced to undergo Rigorous Imprisonment of one year. It is stated that the appellants are on bail. Appellants 2 and 3 have already undergone more than the sentences now awarded to them, therefore, they are not required to surrender. However, appellant No. 1 is directed to surrender immediately to serve the remaining sentence awarded to him. Order accordingly.