Research › Search › Judgment

Chhattisgarh High Court · body

2011 DIGILAW 159 (CHH)

ARJUN YADAV v. STATE OF C. G.

2011-04-20

R.L.JHANWAR, T.P.SHARMA

body2011
JUDGMENT As per Hon'ble Shri T.P. Sharma, J. :- 1. Challenge in this appeal is to the judgment of conviction & order of sentence dated 22.3.2006 passed by the 10th Additional Sessions Judge (F.T.C.), Bilaspur in Sessions Trial No. 147/2005, whereby & where under learned 10th Additional Sessions Judge after holding the appellants guilty for commission of culpable homicide amounting to murder of Ghanshyam Sahu in sharing common intention convicted them under Section 302 read with Section 34 of the I.P.C. and sentenced to undergo imprisonment for life and fine of Rs. 500/-, in default of payment of fine to further undergo R.I. for one month. 2. Conviction is impugned on the ground that without there being any iota of evidence, the trial Court has convicted and sentenced the appellants as aforementioned and thereby committed illegality. 3. As per case of prosecution, on the fateful day of 25.12.2004 at about 7.30 at morning when deceased Ghanshyam Sahu went for ease near• pond and his father Puniram (PW-1) was accompanying him, all the appellants came, they were holding sticks, they assaulted Ghanshyam and caused fatal injuries over his head and other parts of the body. Puniram (PW-1) and other villagers rushed to the spot and finally they took the injured Ghanshyam to hospital at about 9 a.m. and Ghanshyam succumbed to the injuries. Father of the deceased i.e. Puniram (PW -1) lodged F.I.R vide Ex.P/1 and merg vide Ex.P/2. Investigating officer proceeded for scene of occurrence and after summoning the witnesses vide Ex.P/5, inquest over dead body of deceased Ghanshyam was prepared vide Ex.P/6. Spot map was prepared vide Ex.P/3. Bloodstained and plain soil were recovered from the spot vide Ex.P/10. Dead body was sent for autopsy to Community Health Centre, Kota where Dr.K.K.Airi (PW-9) conducted autopsy vide EX.P/19 and found following injuries:- (i) Lacerated wound over right tempo-parietal region of 2" x ½” x 1/2". (ii) Seven bruises over back of 6" x 3", 2" x 3", 4" x 3", 4" x 3", 3" x 1", 2" x 2" and 4" x 3" dimensions. (iii) One lacerated wound over right ankle joint of 1" x 1/2" x 1/2". (iv) One lacerated wound over left knee of 2" x ½” x 1/2". (v) Bruise over right thigh of 4" x 2". (vi) Blood oozing from left ear. (vii) Fracture of right partial temporal bone. Membrain of brain was ruptured and congested. (iii) One lacerated wound over right ankle joint of 1" x 1/2" x 1/2". (iv) One lacerated wound over left knee of 2" x ½” x 1/2". (v) Bruise over right thigh of 4" x 2". (vi) Blood oozing from left ear. (vii) Fracture of right partial temporal bone. Membrain of brain was ruptured and congested. (viii) Fibia of both legs was found fractured. Cause of death was coma and death was homicidal in nature. Sticks were recovered from the appellants vide Exs.P/7 to P/9. Bloodstained lungi was recovered from appellant Arjun Yadav vide Ex.P/11. Patwari prepared spot map vide Ex.P/18. 4. Statements of the witnesses were recorded under Section 161 of the Code of Criminal Procedure, 1973 (hereinafter referred to as 'the Code') and after completion of investigation, charge sheet was filed in the Court of Additional Chief Judicial Magistrate, Bilaspur, who in turn, committed the case to the Court of Sessions, Bilaspur, from where learned 10th Additional Sessions Judge (F.T.C.), Bilaspur received the case on transfer for trial. 5. In order to prove the guilt of the accused/appellants, prosecution has examined as many as eleven witnesses. Statements of the accused/appellants were recorded under Section 313 of the Code, in which they denied the circumstances appearing against them and pleaded innocence and false' implication in the crime in question. The appellants have also examined defence witness Gangaram Sahu (DW-1) who has deposed that he was informed by father of deceased Ghanshyam namely, Puniram that Ghanshyam has been killed in the field of Janak. He also reached to the spot and Ghanshyam was died. They brought dead body of Ghanshyam to Police Station. Virtually he has not deposed anything in favour or against the prosecution or defence. 6. After providing an opportunity of hearing to the parties, the 10th Additional Sessions Judge (F.T.C.), Bilaspur has convicted and sentenced the appellants as aforementioned. 7. We have heard learned counsel for the parties, perused the judgment impugned and record of the trial Court. 8. Learned counsel for the appellants vehemently argued that in the present case they are not disputing homicidal death of Ghanshyam as a result of fatal injuries, but the present appellants have not caused any injury to Ghanshyam. Evidence of solitary witness Puniram (PW-1), father of the deceased, does not inspire confidence and trustworthy and is not safe to rely in absence of corroboration from independent sources. Evidence of solitary witness Puniram (PW-1), father of the deceased, does not inspire confidence and trustworthy and is not safe to rely in absence of corroboration from independent sources. Evidence of eyewitness Anjoriram (PW-7), Maniram (PW-2) and Ramratan (PW-4) before whom the deceased has made dying declaration do not inspire confidence and trustworthy and their evidence are not safe to rely. Learned counsel further argued that even otherwise prosecution was under obligation to explain that how the appellants have caused fatal injuries and was what the common intention of the aforesaid appellants, but in the present case prosecution has not explained and specified that out of three appellants who has caused fatal injury upon the head of the deceased sufficient for his death and what was the common intention of the appellants, whether their intention were causing simp1e injury or grievous injury or to teeth lesson to Ghanshyam or their intention were causing homicidal death not amounting to murder of Ghanshyam. They were holding bamboo sticks common object use by the villagers in the ordinary course of nature, they were not armed with fatal or dangerous weapons. Except one injury found over the head all injuries were found over back of the deceased which reveals that at the time of causing injuries except one injury over head the assailant has taken proper precaution in causing injury over vital parts shows that they have not caused any injury for causing homicidal death not amounting to murder or amounting to murder of the' deceased, therefore, if the evidence of the aforesaid witnesses are considered as gospel truth, then in absence of any proof of offence and the fact that who has caused alleged injury over the head of the deceased, case of the appellants squarely falls within the ambit of Section 325 read with Section 34 of the I.P.C. 9. Learned counsel placed reliance in the matter of Sarman and others Vs. State of Madhya Pradesh1 in which the Supreme Court has held that in case of common object prosecution is required to establish common object of unlawful assembly and if any member of assembly has exceeded the common object and acted on his own, it would be his individual act and other would not be liable the act exceeded by such member. Learned counsel further placed reliance in the matter of Nadodi Jayaraman and others Vs. Learned counsel further placed reliance in the matter of Nadodi Jayaraman and others Vs. State of Tamil Nadu2 in which the Supreme Court has held that in case one head injury found to be sufficient to cause death in the ordinary course of nature and so many injuries are simple, prosecution is required to prove the exact nature of injury caused by the appellants and who has caused such injury and in case after falling down the deceased no further assault has been made by the appellants, then it can be inferred that the appellants were not having common intention to cause death or has likely to cause death or their act was likely to cause death or to cause such bodily injury as was likely to cause death. The Supreme Court has further held that in cases, where large number of persons are involved and in the commotion injures are caused to the prosecution witnesses and others, it becomes the duty of the court to determine the common intention which could be attributed to those accused who stand convicted, where some of their co-accused stand acquitted. Learned counsel also placed reliance in the matter of Mohinder Singh and another Vs. State of Delhi3 in which the Supreme Court has held that prosecution is required to prove common intention of the appellants if they are more in number and to prove that in sharing common intention one has caused such fatal injury sufficient for causing death of the deceased in the ordinary course of nature. In absence of prove of common intention the person who has not caused fatal injury cannot be convicted for the offence of culpable homicide amounting to murder. Learned counsel relied upon the matter of Gajjan Singh Vs. State of Punjab4 in which the Supreme Court has held that the appellants came together armed with rifles were not sufficient to indicate that they had come having shared a common intention. 10. On the other hand, learned State counsel supported the judgment impugned and argued that evidence of eyewitnesses Puniram (PW-1), father of the deceased, Anjoriram (PW-7), Maniram (PW-2) and Ramratan (PW-4) before whom the deceased Ghanshyam has made dying declaration are sufficient for drawing inference that only the appellants have caused homicidal death amounting to murder of Ghanshyam. 10. On the other hand, learned State counsel supported the judgment impugned and argued that evidence of eyewitnesses Puniram (PW-1), father of the deceased, Anjoriram (PW-7), Maniram (PW-2) and Ramratan (PW-4) before whom the deceased Ghanshyam has made dying declaration are sufficient for drawing inference that only the appellants have caused homicidal death amounting to murder of Ghanshyam. This is not a case while the appellants were going towards for their work and incidentally the deceased met in a way then they have assaulted him, but in the present case at about 7.15-8 a.m. when the persons busy with their personal work, the appellants assembled and went near the pond where deceased Ghanshyam had gone for ease accompanied by his father shows that Ghanshyam and his father Puniram (PW-1) were having sufficient apprehension that on account of previous quarrel the appellants may kill Ghanshyam, thereby father of deceased Ghanshyam was accompanying. The appellants were having definite knowledge that at morning time the deceased will go out for his house and that will be suitable time for finish of his life. With intent to kill Ghanshyam all the appellants went to the spot with sticks and have assaulted Ghanshyam when he was in helpless position and even he was not able to save his life by escaping from the spot or using any object. Head injury and other injuries found over other parts of the body shows merciless act of the appellants in causing homicidal death of the deceased. The aforesaid circumstances are sufficient to establish the fact that there was mitigating of mind of the aforesaid appellants and the appellants were having only intention to kill Ghanshyam and in sharing common intention all the appellants have caused injuries resulting into death of Ghanshyam. In these circumstances, prosecution was not under obligation to prove the common intention of the appellants. 11. In order to appreciate the arguments advanced on behalf of the parties, we have examined the evidence adduced on behalf of the parties. 12. In the present case, homicidal death as a result of fatal injury found over the head of deceased Ghanshyam has not been substantially disputed on behalf of the appellants, even otherwise, it is established by the evidence of PW -9 and autopsy report Ex.P/19. Death of Ghanshyam was homicidal in nature. 13. 12. In the present case, homicidal death as a result of fatal injury found over the head of deceased Ghanshyam has not been substantially disputed on behalf of the appellants, even otherwise, it is established by the evidence of PW -9 and autopsy report Ex.P/19. Death of Ghanshyam was homicidal in nature. 13. As regard the complicity of the appellants in crime in question is concerned, conviction is substantially based on the evidence of eyewitness Puniram (PW-1), Anjoriram (PW-7) and dying declaration of the deceased made to Maniram (PW-2) and Ramratan (PW-4). As per evidence of Puniram (PW-1), on account of previous quarrel with the appellants at the time of incident he went with his son Ghanshyam near the pond. At the time of ease of Ghanshyam he was waiting his son near the bond, suddenly Ghanshyam shouted for help, then he saw the appellants who were holding sticks were assaulting his son Ghanshyam, he requested the appellants that Ghanshyam is his only son and do not kill him, but appellants Ballu and Sakhan are rushed towards this witness, then he requested Brinda and Panchu who were also present on the spot to save his son, but they told that how they can save his son at the risk of their life. Appellant Ballu assaulted his son by stick over his head and caused substantial injury, thereafter other appellants have also assaulted, he shouted for help, then villagers came to the spot and the appellants escaped from the spot. They brought injured Ghanshyam to kitchen garden, thereafter after arranging tractor they took Ghanshyam to Police Station Kota along with Ramratan, Maniram, Baliram and other persons. Police Officers immediate directed him to bring the injured to hospital, they took the injured to hospital where ultimately Ghanshyam died, then he lodged F.I.R. vide Ex.P/1 and merg vide Ex.P/2. 14. Anjoriram (PW-7) has deposed in his evidence that he has gone near Dabri pond where he heard sound of assault of stick, then he saw the incident, at that time the appellants were assaulting Ghanshyam by sticks and he was struggling for his life. The appellants were causing injury to him. Binda Yadav, Shankar Yadav and Panchram were also present there. Father of the appellant was shouting for help, at the same time, Panchram, Binda and Shankar Yadav rushed from the spot. Ghanshyam was badly injured. Other persons took Ghanshyam to village. The appellants were causing injury to him. Binda Yadav, Shankar Yadav and Panchram were also present there. Father of the appellant was shouting for help, at the same time, Panchram, Binda and Shankar Yadav rushed from the spot. Ghanshyam was badly injured. Other persons took Ghanshyam to village. Defence has cross-examined this witness at length. He has denied the suggestion in para 10 of his cross-examination that on previous night at about 10 p.m. quarrel took place between him and Ghanshyam. He has also denied the suggestion that on account of previous quarrel he alongwith his brothers have killed Ghanshyam. In para 11 he has denied enmity with appellant Arjun. In his detailed cross-examination, he has specifically and substantially deposed that he has seen the incident that all the appellants assaulted Ghanshyam by'sticks, they have mercilessly assaulted Ghanshyam and have broken limbs of Ghanshyam. Other persons rushed from the spot. Nobody was in a position to save or try to intervene the incident on account of regular and mercilessly assault by the appellants. 15. Defence has cross-examined Puniram (PW-1) in detail. In his detailed cross-examination he has very specifically and categorically deposed that these appellants have mercilessly assaulted his son Ghanshyam and have caused repeated injuries. His evidence finds support from the evidence of Anjoriram (PW-7) and promptly lodged F.I.R. Ex.P/1. 16. As per evidence of Maniram (PW-2), after hearing the sound of Ghanshyam he reached to the spot along with other persons where he saw body of injured Ghanshyam, being asked Ghanshyam made dying declaration that the present appellants have assaulted him by sticks. Ramratan (PW-4) has substantially corroborated the evidence of Maniram (PW -2) relating to dying declaration made by the deceased. There cue some discrepancies, omissions, contradictions and exaggerations in the evidence of these witnesses with their previous statements Exs.D/2 and D/4, but they have categorically deposed that Ghanshyam has made dying declaration. Evidence of dying declaration and when dying declaration is proved to be true, then same are sufficient for conviction of the accused persons. 17. Evidence of eyewitnesses Puniram (PW -1) and Anjoriram (PW -7) also find support from dying declaration made by the deceased. Puniram (PW-1) is father of the deceased and he is relative witness, but his evidence cannot be discarded only on the ground of his relation. 17. Evidence of eyewitnesses Puniram (PW -1) and Anjoriram (PW -7) also find support from dying declaration made by the deceased. Puniram (PW-1) is father of the deceased and he is relative witness, but his evidence cannot be discarded only on the ground of his relation. Even otherwise, relative would be the last to screen the real culprit and falsely implicate an innocent person. 18. Evidence of Puniram (PW-1) corroborated by Anjoriram (PW-7) and factum of dying declaration made to Maniram (PW-2) and Ramratan (PW-4) are sufficient to establish the fact that the present appellants have caused injuries to Ghanshyam and Ghanshyam succumbed to the injuries caused by the appellants. 19. As regard the question of motive is concerned, in case of direct evidence motive losses its importance, even otherwise, motive is only aid in criminality and can be inferred on the basis of nature of injury, kind of weapon used, part of the body effected and other similar circumstances. 20. Common intention is an intention of more than one person for commission of act or series of act. The common intention implies acting in concert, existence of a pre-arranged plan which is to be proved either from conduct or from circumstances or from any incriminating facts. While dealing with the question of common intention, the Supreme Court in the matter of Ramashish Yadav and others Vs. State of Bihar5 in which the Supreme Court has observed in para 3 as under:- "3. ......... Section 34 lays down a principle of joint liability in the doing of a criminal act. The essence of that liability is to be found in the existence of common intention animating the accused leading to the doing of a criminal act in furtherance of such intention. The distinct feature of Section 34 is the element of participation in action. The common intention implies acting in concert, existence of a pre arranged plan which is to be proved either from conduct or from circumstances or from any incriminating facts. It requires a pre-arranged plan and it presupposes prior concert. Therefore, there must be prior meeting of minds. The prior concert or meeting of minds may be determined from the conduct of the offenders unfolding itself during the course of action and the declaration made by them just before mounting the attack. It requires a pre-arranged plan and it presupposes prior concert. Therefore, there must be prior meeting of minds. The prior concert or meeting of minds may be determined from the conduct of the offenders unfolding itself during the course of action and the declaration made by them just before mounting the attack. It can also be developed at the spur of the moment but there must be a pre-arrangement or . premeditated concert. . . . . .." 21. While dealing with the question of requirement of proving the nature of common intention, the Supreme Court in the matter of Nadodi Jayaraman and others2 (supra) has observed in para 16 as under:- "16. In cases, where large number of persons are involved and in the commotion injures are caused to the prosecution witnesses and others, it becomes the duty of the court to determine the common intention which could be attributed to those accused who stand convicted, where some of their co-accused sand acquitted and the State chooses not to file, any appeal against their acquittal. With a view to determine the common intention, the nature of injuries, the background of the incident and the nature of the weapons used to cause the injuries besides other factors are required to be properly considered and appreciated." 22. In order to convict the appellants under Section 302 or any other substantial offence with the aid of Section 34 of the I.P.C. the prosecution is required to prove common intention of the persons for causing such act and common intention can be inferred on the basis of nature of injury caused by the appellants and their act attributed. 23. As held by the Supreme Court in the matter of Mohinder Singh and another3 (supra), prosecution is required to prove the fact that in sharing common intention with co-accused other accused has caused murder of the deceased, conviction of the co-accused under Section 302 with the aid of Section 34 of the I.P.C. was not found sustainable. The Supreme Court has observed in para 3 as under :- "3. We are, therefore, of opinion that while Umed Singh has been rightly convicted of the offence of the murder of Daya Nand. The Supreme Court has observed in para 3 as under :- "3. We are, therefore, of opinion that while Umed Singh has been rightly convicted of the offence of the murder of Daya Nand. Mohinder Singh could not be so convicted unless it could be established that he shared a common intention with Umed to cause the death of Day a Nand or at least to cause such injury as would lead in the usual course of nature to Daya Nand's death. We are not persuaded that the three men who are involved in the occurrence went there with the intention of causing Daya Nand's death though there is evidence that they said they would kill him. That is probably an exaggeration. If the intention were to kill the wrong side of the axe would not have been used. While the knowledge that the injury he was causing would in the ordinary course of nature lead to Daya Nand's death might be attributed to Umed Singh, it is not possible to attribute such knowledge to Mohinder Singh. It is not, therefore, possible to ascribe to Mchinder Singh a common intention along with Umed Singh to cause to Daya Nand such injury as would lead in the ordinary course of nature to his death. We are, therefore, of opinion that Mohinder Singh cannot be convicted of murder of Daya Nand under Section 302 I.P.C. read with Section 34. The result would be that he could be convicted only of causing hurt or at the most of grievous hurt to Daya Nand. We would, therefore, allow his appeal in part and convert the sentence passed on him to one under Section 325, LP.C. As he has been in prison since shortly after the occurrence the sentence will be restricted to the period already undergone. He is directed to be released forthwith. The appeal of Umed Singh is dismissed." 24. As held by the Supreme Court in the matter of Gajjan Singh4 (supra), mere armed with rifle and causing-injury by one person is not sufficient to prove common intention of other. 25. He is directed to be released forthwith. The appeal of Umed Singh is dismissed." 24. As held by the Supreme Court in the matter of Gajjan Singh4 (supra), mere armed with rifle and causing-injury by one person is not sufficient to prove common intention of other. 25. While dealing with the question of common object, the Supreme Court in the matter of Sarman and othersl (supra) has held that in case of member of unlawful assembly exceeded common object of the assembly, then it would be his individual act and other are not liable with the aid of Section 149 of the I.P.C.. The Supreme Court has observed in para 5 as under:- "5. ...........The prosecution case in general is that all of them were found with lathies. Nobody has stated that which of them caused the injury No. 15 which unfortunately resulted in the death of the deceased. If anyone of the appellants had exceeded the common object and acted on his own, it would be his individual act. In this case unfortunately no witness has come forward as to which of the accused has caused which injury. In these circumstances we find it difficult to award punishment under S.302/149, IPC." 26. While dealing with the question of applicability of Section 34 i.e. common intention, the Supreme Court in the matter of Pipal Singh Vs. State of Punjab6 has held that with a view to determine common intention, the nature of injuries, background of the incident and the nature of weapon used to cause the injuries besides other factors are needed to be considered. The Supreme Court has observed in para 3 as under:- "3. Even where some out of several accused are acquitted it is open to the court to consider whether the remaining accused were guilty of an offence by involving Section 34 IPC by reason of having committed the offence along with others acquitted. With a view to determine common intention, the nature of injuries, background of the incident and the nature of weapon used to cause the injuries besides other factors are needed• to be considered. There is no principle in law which prevents from adopting that course set out above by us. In the circumstances arising in the case. With a view to determine common intention, the nature of injuries, background of the incident and the nature of weapon used to cause the injuries besides other factors are needed• to be considered. There is no principle in law which prevents from adopting that course set out above by us. In the circumstances arising in the case. the High Court has done the necessary exercise in finding out whether the accused needed to be convicted under Section 302 IPC read with Section 34 IPC. We find no infirmity in the same." 27. While dealing with the question of common intention and consideration of the material for determination of common intention, the Supreme Court in the matter of Surendra Chauhan Vs. State of Mp7 has held that the existence of a common intention can be inferred from the attending circumstances of the case and the conduct of the parties. The Supreme Court has observed in para 11 as under:" 11. Under Section 34 a person must be physically present at 'the actual commission of the crime for the purpose of facilitating or promoting the offence, the commission of which is the aim of the joint criminal venture. Such presence of those who in one way or the other facilitate the execution of the common design is itself tantamount to actual participation in the criminal act. The essence of Section 34 is simultaneous consensus of the minds of persons participating in the criminal action to bring about a particular result. Such consensus can be developed at the spot and thereby intended by all of them. (Ramaswami Ayyangar v. State of T.N., [(1976) 3 SCC 779] The existence of a common intention can be inferred from the attending circumstances of the case and the conduct of the parties. No direct evidence of common intention is necessary. For the purpose of common intention even the participation in the commission of the offence need not be proved in all cases. The common intention can develop even during the course of an occurrence. (Rajesh Govind Jagesha v. State of Maharashtra [(1999) 8 SCC 428]. To apply Section 34 IPC apart from the fact that there should be two or more accused, two factors must be established: (i) common intention, and (ii) participation of the accused in the commission of an offence. The common intention can develop even during the course of an occurrence. (Rajesh Govind Jagesha v. State of Maharashtra [(1999) 8 SCC 428]. To apply Section 34 IPC apart from the fact that there should be two or more accused, two factors must be established: (i) common intention, and (ii) participation of the accused in the commission of an offence. If a common intention is proved but no over act is attributed to the individual accused, Section 34 will be attracted as essentially it involves vicarious liability but if participation of the accused in the crime is proved and a common intention is absent, Section 34 cannot be invoked. In every case, it is not possible to have direct evidence of a common intention. It has to be inferred from the facts and circumstances of each case." 28. While dealing with the question of common intention, the Supreme Court in the matter of State of U.P. Vs. Jhinkoo Nai and other connected matter8 has observed in para 8 as under: "8. Now let us apply the aforesaid principles to the facts of the present case and find out what reasonable inference would be drawn by a prudent man. Proved facts are : the accused were armed with knives; they entered the house of the complainant in the dead of night, may be to take revenge for the quarrel which had taken place in satisfy their sexual lust, the accused including the appellant, despite resistance by the girl lifted her and brought her in the osara. At that stage when the deceased was crying and resisting, her father PW 4 Mani Ram and her mother Nageshari, PW 5 got up and started raising alarm. Tahir, one of the accused gave a knife-blow to the deceased and two others gave knife-blows to PW 4 and PW 5. From these facts, the only reasonable inference which could be drawn is that the common intention of the accused was to ravish the young girl of the poor Harijan and in case of resistance, to commit murder by inflicting knife-blows. Their adventure in criminality cannot be watered down or nullified by contending that injuries caused by them have not resulted in the death of PW 4 and PW 5. Their adventure in criminality cannot be watered down or nullified by contending that injuries caused by them have not resulted in the death of PW 4 and PW 5. In this view of the matter, the High Court materially erred in altering the sentence of the accused from the offence punishable under Sections 302/34 IPC to Section 324 IPC by observing that assault by knife on Mani Ram and Nageshari were individual acts of Jhinkoo (appellant) and Deep Chand and the act of Tahir in inflicting the knife injury on the chest of the deceased appears to be his individual act and, therefore, the appellant Jhinkoo cannot be convicted for the offence punishable under Section 302 read with Section 34 IPC. Hence, the impugned order passed by the High Court cannot be sustained." 29. While dealing with the same question the Supreme Court in the matter of Suresh and another Vs. State of U.P. and other connected rnatter9 has held that in furtherance of common intention no over act of member is necessary and question of common intention can be inferred on the basis of circumstances. The Supreme Court has observed in paras 22, 23 and 24 as under:- "22. Even the concert of presence of the co-accused at the scene is not a necessary requirement to attract Section 34, e.g. the co-accused can remain a little away and supply weapons to the participating accused either by throwing or by catapulting them so that the participating accused can inflict injuries on the targeted person. Another illustration, with advancement of electronic equipment can be etched like this: One of such persons, in furtherance of the common intention, overseeing the actions from a distance through binoculars can give instructions to the other accused through mobile phones as to how effectively the common intention can be implemented. We do not find any reason why Section 34 cannot apply in the case of those two persons indicated in the illustrations. 23. Thus to attract 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. 24. (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. 24. Looking at the first postulate pointed out above, the accused who is to be fastened with liability on the strength of Section 34 IPC should have done some act which has nexus with the offence. Such an act need not be very substantial, it is enough that the act is only for guarding the scene for facilitating the crime. The act need not necessarily be over act, even if it is only a covered act it is enough, provided such a over act it proved to have been done by the co-accused in furtherance of the common intention. Even an omission can, in certain circumstances, amount to an act. This is the purport of Section 32 IPC. So the act mentioned in Section 34 IPC need not to be an over act, even an illegal omission to do a certain act in a certain situation can amount to an act, e.g. a co-accused, standing near the victim face to face saw an armed assailant nearing the victim from behind with a weapon to inflict a blow. The co-accused, who could have alerted the victim to move away to escape from the onslaught deliberately refrained from doing so with the idea that the blow should fall on the victim. Such omission can also be termed as an act in a given situation. Hence an act, whether overt or covert, is indispensable to be done by a co-accused to be fastened with the liability under the section. But if no such act is done by a person, even if he has common intention with the others for the accomplishment of the crime, Section 34 IPC cannot be invoked for convicting that person. In other words, the accused who only keeps the common intention in his mind, but does not do any act at the scene, cannot be convicted with the aid of Section 34 IPC." 30. In the light of dictum of the Supreme Court in the aforesaid cases, prosecution is required to prove intention and common intention of the accused. In other words, the accused who only keeps the common intention in his mind, but does not do any act at the scene, cannot be convicted with the aid of Section 34 IPC." 30. In the light of dictum of the Supreme Court in the aforesaid cases, prosecution is required to prove intention and common intention of the accused. If any member of assembly has exceeded the common object and acted on his own, then it would be his individual act and other would not be liable the act exceeded by such member. 31. In order to commit the offence in sharing common intention, pre concert and pre-determination of mind is necessary and not over act of the person concerned. Common intention can be inferred on the basis of weapon used, sequel1ce of the act, nature of weapon, nature of injury and part of body effected. 32. In the present case, evidence adduced on behalf of prosecution is not sufficient to point out that out of three appellants who has caused injury over the head of the deceased sufficient for causing death in the ordinary course of nature of the deceased. Evidence relating to causing such injury to Puniram (PW-1) and Anjoriram (PW-7) is not sufficient for drawing definite conclusion that out of three appellants who has caused such injury. Evidence of aforesaid witnesses and medical evidence is also not sufficient for drawing any definite, conclusion that head injury has been caused by all three accused persons and head injury was as a result of three injuries or more than three injuries. 33. As held by the Supreme Court in the matter of Sarman and othersl (supra), the appellants were having only sticks, therefore, only on the basis of holding sticks it would not be possible to infer that the appellants were having common intention for commission of culpable homicide amounting to murder of Ghanshyam without any further corroboration or other circumstances. 34. Facts and circumstances of the present case reveal that just one day prior to the incident some quarrel took place between appellant Arjun and deceased Ghanshyam in the market, Ghanshyam was beaten by the appellant and anyhow he rescued from the market. 34. Facts and circumstances of the present case reveal that just one day prior to the incident some quarrel took place between appellant Arjun and deceased Ghanshyam in the market, Ghanshyam was beaten by the appellant and anyhow he rescued from the market. As per evidence of Puniram (PW1), promptly lodged F.I.R. Ex.P/1 and merg Ex.P/2, at the time of incident i.e. at about 7.30 at morning time of answering the call of nature or for ease, the deceased Gharishyam who was not minor who was aged about 34-35 years was accompanied by his father Puniram (PW-1) aged about 55 years up to the place of incident, Puniram (PW-1) was waiting and watching to his son and was present to support and protect his son, he was waiting his son near the pond, deceased Ghanshyam was present in the field of Janak, at that time three appellants armed with lathies came and caused repeated assault to Ghanshyam, he shouted for help, his father Puniram (PW-1) rushed and requested the appellants, even he has made specific request that the deceased is his only son and at least you spare him, despite that the appellants have assaulted him, even they tried to chess this witness, he shouted for help, then 5 to 10 persons gathered, then the appellants fled from the spot. Ghanshyam was badly injured. Evidence of this witness reveals that just one day prior to the incident there was serious quarrel between appellant Arjun and deceased and the deceased was having sufficient apprehension that he may be killed by the appellants, therefore, he was accompanied by his father for ease which was normal time to answer the call of nature or to ease of the villagers and everybody can presume that persons residing in village may go out of village to field for answering the call of nature. 35. The appellants were armed with sticks, they were three in number, they have not gone to field or pond for other work either for bathing or for answering the call of nature or for ease or for any work in field, that too at early part of the day. There was no other object or occasion for the appellants for their presence on the spot. Even otherwise the appellants have not shown any other cause for their presence on the spot, that too with sticks. There was no other object or occasion for the appellants for their presence on the spot. Even otherwise the appellants have not shown any other cause for their presence on the spot, that too with sticks. As per evidence of Puniram (PW-1), he has requested the appellants to leave his son on the ground that he was his only son, even then, they have not stopped making assault and out of three two have chased this witness. He requested other persons for saving his son, but they refused on the ground that they were not in a position to save his son at the cost of their life. 36. The appellants left the place of occurrence and fled from the spot only after coming of 5 to 10 persons from the village. As per autopsy report and medical evidence, one fatal injury with facture was found over the head, seven injuries were found over back, one lacerated wound over right ankle, one lacerated wound was found over left knee, one bruise found over right thigh and fibula of both legs were found fractured. Total ten injuries with three fractures were found over the body. Brain was badly effected by the injury. These show that the appellants have mercilessly assaulted the injured and at that time nobody was having courage to intervene the incident. 37. The appellants are father and sons, they are residents of same house, they came together to the spot, they have jointly assaulted the deceased, they were having grudge against the deceased. There was no occasion for otherwise presence of the appellants on the spot at early part of the day. These circumstances are sufficient for drawing inference that on account of previous serious quarrel the appellants have decided to kill Ghanshyam and after taking opportunity to kill Ghanshyam when he went to ease from his house to field, the appellants proceeded from their house together, they jointly attacked upon Ghanshyam and caused aforesaid injuries. This shows common intention of the appellants to commit homicidal death amounting to murder of Ghanshyam and in furtherance of common intention they have caused injuries to Ghanshyam. In these circumstances, prosecution was not under obligation to prove the fact that who has caused fatal injury to Ghanshyam. 38. This shows common intention of the appellants to commit homicidal death amounting to murder of Ghanshyam and in furtherance of common intention they have caused injuries to Ghanshyam. In these circumstances, prosecution was not under obligation to prove the fact that who has caused fatal injury to Ghanshyam. 38. This is not a case where the appellants were having common intention to cause grievous injury or to teach lesson to Ghanshyam, but this is a case in which the appellants were having common intention to kill and finish Ghanshyam, therefore, non-proving the fact that who has caused fatal injury to Ghanshyam is not fatal to prosecution and causing injury over the head of the deceased in the present case is not an individual act of the appellants. 39. After appreciating the evidence available on record, learned 10th Additional Sessions Judge (F.T.C.), Bilaspur has convicted the appellants under Section 302 read with Section 34 of the I.P.C. and sentenced them to undergo imprisonment for life and fine of Rs.500/-Conviction of the appellants is based on clinching and credible evidence sustainable under the law. 40. On close scrutiny, we do not find any illegality or infirmity in conviction and sentence imposed upon the appellants. 41. Consequently, the appeal being devoid of merit is liable to be dismissed and it is hereby dismissed. Appeal Dismissed.