JUDGMENT Mr. Mehinder Singh Sullar, J. (Oral):- The matrix of the facts & evidence, unfolded during the course of trial, which needs a necessary mention for the limited purpose of deciding the core controversy, involved in the instant appeal and emanating from the record, as claimed by the prosecution, is that on 3.6.2001, a wireless (VT) message was received by the SHO of Police Station, Ganaur from the office of Superintendent of Police, Sonepat to the effect that three young persons had snatched a white coloured Maruti Zen car, bearing registration No.2634, from the Singla Medical Store, Gohana Road, Sonepat. In pursuance of VT message, a police party headed by SI/SHO Randhir Singh (PW4) consisted of complainant ASI Dhanpat Rai (PW3) (for brevity “the complainant”) and other police officers had arranged/erected checking Barrier (Naka) near village Kaliana. Meanwhile, another Maruti car, bearing registration No.DL-2- CE-9884 came from the side of village Moi. The driver was signaled to stop the car. Instead of slowing down, he accelerated its speed and did not care for the signal. Then, Constable Jaibir driver stopped the police jeep in front of and the Maruti car was stopped. According to the prosecution that one person was sitting near the driver seat, whereas the remaining persons were traveling on the rear seats of the Maruti car. As soon as, the car was stopped, in the meantime, the person sitting near the driver on the front seat, fired a shot from his country made pistol, aiming towards the complainant, but he escaped and the shot did not hit any body. The two accused traveling on the rear seats managed to escape. However, the other accused were apprehended at the spot by PW4 with the help of other police officials, who subsequently disclosed their respective names. 2. Leveling a variety of allegations and narrating the sequence of events, in all, the prosecution claimed that the appellant-convict Madan Lal was driving the Maruti car and main accused appellant Rajpal (since deceased) had fired a shot with the intention to kill, but the complainant escaped and the shot did not hit any body. Appellant Rup Chand and accused Sunil alias Sonu have managed to escape from the place of occurrence, whereas appellants Madan Lal, Rajpal and Kuldeep were apprehended at the spot. Appellant Rup Chand and accused Sunil alias Sonu have managed to escape from the place of occurrence, whereas appellants Madan Lal, Rajpal and Kuldeep were apprehended at the spot. In the background of these allegations and in the wake of statement (Ex.PD) of the complainant, the present criminal case was registered against the appellants and Sunil alias Sonu (acquitted accused), by way of FIR No.127 dated 3.6.2001 (Ex.PD/2), on accusation of having committed the offences punishable u/s 307 read with section 34 IPC and section 25 of the Arms Act by the police of Police Station Ganaur, District Sonepat, in the manner depicted here-in-above. 3. After completion of the investigation, the final police report (challan) was submitted by the police against the appellants to face the trial for the indicated offences. 4. Having completed all the codal formalities, appellant Rajpal (since deceased) was substantively charge-sheeted for the commission of offences punishable u/ss 307 and 25 of the Arms Act, whereas remaining appellants Madan Lal, Kuldeep and Rup Chand were vicariously chargesheeted u/ss 307/34 IPC. Since accused Sunil alias Sonu was juvenile, so, he was separately tried and subsequently acquitted by the Juvenile Justice Board. As the appellants did not plead guilty and claimed trial, therefore, the case was slated for evidence of the prosecution by the trial Judge. 5. The prosecution, in order to substantiate the charges framed against the appellants, examined formal witnesses PW1 HC Hari Chand and PW2 constable Mukesh Kumar, who have tendered into evidence their respective affidavits (Ex.PA & Ex.PB) to complete the chain of link evidence. PW6 SI Amar Dass has formally arrested accused Sonu and Rup Chand @ Rup Basant from the Court of JMIC and obtained their transit remand. PW7 Satbir Singh, Reader has proved the sanction (Ex.PM) granted by the District Magistrate, Sonepat to prosecute main accused Rajpal. PW5 Surinder, Patwari has prepared the scaled site plan (wrongly marked as Ex.PM twice) of place of occurrence at the instance of HC Dharambir with its correct marginal notes. 6. Sequelly, PW3 complainant ASI Dhanpat Rai, PW4 Inspector Randhir Singh and PW8 HC Ramphal have corroborated the version contained in the initial statement (Ex.PD) on all vital counts and maintained that main accused Rajpal had fired a shot from his country made pistol, aiming towards the complainant, but he escaped and the shot did not hit any body. 6. Sequelly, PW3 complainant ASI Dhanpat Rai, PW4 Inspector Randhir Singh and PW8 HC Ramphal have corroborated the version contained in the initial statement (Ex.PD) on all vital counts and maintained that main accused Rajpal had fired a shot from his country made pistol, aiming towards the complainant, but he escaped and the shot did not hit any body. They have further testified the recovery of .315 bore pistol loaded with empty cartridges from the possession of accused Rajpal. The pistol (Ex.P1) and missed cartridge (Ex.P2) were taken into possession, vide recovery memo (Ex.PC), after preparing its sketch (Ex.PC/1) attested by the witnesses. The car, bearing registration No.DL- 2-CE-9884 along with bunch of keys was also taken into possession, by virtue of recovery memo (Ex.PE). The respective disclosure statements (Ex.PF to Ex.PH) of accused Rajpal, Kuldeep and Madan Lal were also proved by them. They have also duly testified the remaining investigation. The prosecution has also placed reliance on site plan (Ex.PJ) of the spot, memos of arrest (Ex.PK & Ex.PL) and report (Ex.PX) of FSL Haryana, Madhuban in documentary evidence. 7. After the close of the prosecution evidence, the statements of the appellants were recorded. The entire incriminating material/evidence was put to enable them to explain any circumstance appearing against them therein, as contemplated under section 313 Cr.PC. However, they have denied the prosecution version & evidence in its entirety and pleaded false implication. They opted for defence. 8. The appellants, in order to prove their line of defence, have examined DW1 Mohinder Singh and DW2 Indirawati. The compendium of statements of defence witnesses is with regard to improbability of the prosecution version and false implication of the appellants. This is the entire oral as well as documentary evidence brought on record by the parties. 9. Taking into consideration the indicated evidence on record, appellant Rajpal (since deceased) was substantively convicted & sentenced to undergo rigorous imprisonment (for short “RI”) for a period of seven years and to pay a fine of Rs. 1000/- for the commission of an offence punishable u/s 307 IPC. He was also convicted & sentenced to undergo RI for a period of one year u/s 25 of the Arms Act. Whereas remaining appellants were vicariously convicted & sentenced to undergo the same RI of seven years each u/ss 307/34 IPC. 1000/- for the commission of an offence punishable u/s 307 IPC. He was also convicted & sentenced to undergo RI for a period of one year u/s 25 of the Arms Act. Whereas remaining appellants were vicariously convicted & sentenced to undergo the same RI of seven years each u/ss 307/34 IPC. In default of payment of fine, they were ordered to further undergo RI for a period of six months each. However, all the sentences were ordered to run concurrently, by means of impugned judgment of conviction dated 26.10.2002 and order of sentence dated 31.10.2002 by the trial Judge. 10. Aggrieved thereby, the appellants have preferred the instant appeal. That is how I am seized of the matter. 11. At the very outset, having placed reliance on death certificate, the learned counsel for the parties are ad idem that since during the pendency, appellant Rajpal son of Karan Singh (main accused) has expired, so, the appeal relatable to him stands abated. Now the controversy with regard to the role of remaining appellants, relatable to the applicability of section 34 IPC, remain to be determined in the present appeal. 12. Having heard the learned counsel for the parties, having gone through the evidence on record with their valuable help and after bestowal of thoughts over the entire matter, to my mind, the instant appeal deserves to be accepted in this context. 13. What cannot possibly be disputed here is that according to the prosecution, as soon as, the Maruti car stopped in the manner described here-in-above, in the meantime, appellant Rajpal (since deceased, who was substantively convicted & sentenced u/ss 307 IPC and 25 of the Arms Act), had fired a shot, aiming towards the complainant, but he escaped. The shot did not hit any body. He was the main culprit and his appeal stands already abated on account of his death. Sequelly, since the similarly situated co-accused Sunil alias Sonu son of Dalbir Singh was juvenile, so, he was separately tried and subsequently acquitted, by means of judgment of acquittal dated 10.7.2009 by the Juvenile Justice Board. 14. Likewise, the remaining appellants were vicariously convicted & sentenced u/ss 307/34 IPC. Sequelly, since the similarly situated co-accused Sunil alias Sonu son of Dalbir Singh was juvenile, so, he was separately tried and subsequently acquitted, by means of judgment of acquittal dated 10.7.2009 by the Juvenile Justice Board. 14. Likewise, the remaining appellants were vicariously convicted & sentenced u/ss 307/34 IPC. Section 307 IPC postulates that “Whoever does any act with such intention or knowledge, and under such circumstances that, if he by that act caused death, he would be guilty of murder, shall be punished therein.” Similarly, section 34 IPC posits that “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.” 15. A conjoint and meaningful reading of these provisions would reveal that before a man can be held vicariously liable for acts done by another, inter-alia, it must be established by the prosecution by producing cogent evidence on record that (i) there was a common intention in the sense of a pre-arranged plan between the two, and (ii) the person sought to be so held liable had actually participated in some manner in the act constituting the offence. However, section 34 IPC will not be attracted, unless, at the first instance, it is established that a crime has been committed by several persons, secondly, that there was a common intention and a pre-arranged/pre-planned to actually commit the pointed offence and third there was a participation in the commission of actual offence in furtherance of that common intention. This section does not by itself create any offence. It only lays down the principle of joint criminal liability. The common intention and pre-arranged plan must be anterior in point of time to commission of crime. When there is neither pre-concert for meeting of minds, then, section 34 IPC is not attracted. This matter is no more res integra and is now well settled. 16. An identical question came to be decided by Hon’ble Apex Court in a celebrated judgment in case Anil Sharma & Ors. v. State of Jharkhand 2004(3) RCR (Criminal) 774. Having considered the scope of section 34 IPC, it was ruled as under (para 17) :- “Section 34 has been enacted on the principle of joint liability in the doing of a criminal act. v. State of Jharkhand 2004(3) RCR (Criminal) 774. Having considered the scope of section 34 IPC, it was ruled as under (para 17) :- “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 mind 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 moment; but it must necessarily be before the commission of the crime. The true contents of the Section is 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. As observed in Ashok Kumar v. State of Punjab ( AIR 1977 SC 109 ), 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.” 17. Not only that, the same view was again reiterated by Hon’ble Supreme Court in case Jagannath v. State of M.P., [2007(4) Law Herald (SC) 2962] : 2007(4) RCR (Criminal) 274. 18. 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.” 17. Not only that, the same view was again reiterated by Hon’ble Supreme Court in case Jagannath v. State of M.P., [2007(4) Law Herald (SC) 2962] : 2007(4) RCR (Criminal) 274. 18. Above being the legal position and evidence on record, now the core controversy, which invites an immediate attention of this Court and arises for determination in the instant appeal is, as to whether the remaining appellants can be vicariously held liable under the present set of evidence or not ? 19. Having regard to the rival contentions of the learned counsel for the parties, to me, the answer must obviously be in the negative, as the prosecution has miserably failed to prove all the essential ingredients of sections 307/34 IPC. 20. As is evident from the record that the prosecution claimed that having received a VT message, PW4 arranged and erected a checking Barrier (Naka) near village Kalian. Meanwhile, the indicated Maruti car came from the side of village Moi. The driver was signaled to stop, but he accelerated its speed. The Maruti car was stopped by putting the police jeep in front of it. As soon as, it was stopped, then, appellant Rajpal main accused (since deceased) fired a shot, aiming towards the complainant and he escaped. The shot did not hit any body. Appellants Rup Chand and acquitted accused Sunil alias Sonu had slipped away, whereas remaining appellants were apprehended at the spot. In order to prove the charge of vicarious liability with the aid of section 34 IPC against the remaining appellants, the prosecution in this respect has pressed into service the statements of PW3, PW4 and PW8, who have only deposed that appellant Madan Lal was driving the Maruti car and appellants Kuldeep & Rup Chand were traveling in it. When it was stopped, then, they tried to flee. Appellant Rup Chand and acquitted accused Sunil alias Sonu managed to escape and appellants Madan Lal and Kuldeep were apprehended at the spot by the police party. In this regard, the crux of their statements is that “however, two occupants of the car sitting on the rear seats managed to escape from the car. The other three occupants were apprehended by us. In this regard, the crux of their statements is that “however, two occupants of the car sitting on the rear seats managed to escape from the car. The other three occupants were apprehended by us. The driver of the car told his name Madan Lal. The person who fired the shot disclosed his name as Rajpal son of Karan Singh. The third person disclosed his name as Kuldeep son of Chand Singh. These persons disclosed the names of the other occupants who had fled away to be Sunil alias Sonu son of Dalbir and Rup Chand son of Dhara, residents of village Gumar.” Nothing more nothing less. 21. Meaning thereby, neither any specific role nor any overt-act is attributed to appellants Madan Lal, Kuldeep and Rup Chand. Appellant Rajpal (main accused), who was stated to have fired a shot on the police party, has since expired. Moreover, on receipt of a VT message to the effect that some young persons had snatched a white coloured Maruti Zen car, bearing No.2634, the police party has suddenly erected a checking Barrier (Naka) and the appellants were stated to have arrived at the spot in another Maruti Car, bearing registration No.DL-2CE-9884, which was by chance stopped by the police party. It cannot possibly be saith that these appellants had the prior knowledge of receipt of VT message, the fact of sudden erection of a checking Barrier by the police or they preplanned to attempt to murder the complainant or shared the common intention of appellant Rajpal for use of his gun. Even they might not be aware that he (Rajpal) was having a country made pistol at that time. They did not cooperate him, in any manner, rather, they tried to flee from the place of occurrence. There is not an iota of evidence, muchless cogent, even to suggest remotely that appellant Rajpal would be confronted by the police party by chance or he would use his pistol. No evidence, muchless cogent, is forth coming on record even to indicate that remaining appellants knew that appellant Rajpal had prior intention to attempt to murder the complainant. In that eventuality, sharing of common intention by the remaining appellants to attempt to murder the complainant by appellant Rajpal did not arise at all under the present set of circumstances. Therefore, all the indicated essential ingredients of applicability of section 34 IPC are deeply missing. In that eventuality, sharing of common intention by the remaining appellants to attempt to murder the complainant by appellant Rajpal did not arise at all under the present set of circumstances. Therefore, all the indicated essential ingredients of applicability of section 34 IPC are deeply missing. Thus, the ratio of law laid down by the Hon’ble Apex Court in Anil Sharma & Jagannath’s cases (supra) “mutatis mutandis” is attracted to the facts of the present case and is the complete answer to the problem in hand. 22. Therefore, if all the facts & circumstances, oozing out from the evidence on record and lack of essential ingredients of section 34 IPC, as discussed here-in-above are put together, then, to my mind, the conclusion is inescapable and irresistible that the evidence brought on record by the prosecution falls short as is required to prove the charges u/ss 307/34 IPC, which entails the benefit of doubt and acquittal to the remaining appellants as well. Thus, the trial Court has slipped into a deep legal error to vicariously convict them with the aid of section 34 IPC. In this manner, the impugned judgment of conviction & order of sentence of trial Judge cannot legally be maintained, deserve to be and are hereby set aside in the obtaining circumstances of the case. 23. No other legal point, worth consideration, has either been urged or pressed by the learned counsel for the parties. 24. In the light of aforesaid reasons, the instant appeal is hereby accepted. Consequently, the impugned judgment of conviction & order of sentence are set aside. Having extended the benefit of doubt, the remaining appellants are acquitted of the charge u/ss 307/34 IPC as well. Needless to mention that the necessary compliance and procedural consequences would naturally follow. ---------0.B.S.0------------