JUDGMENT 1. - Heard learned Amicus Curiae for the accused-appellants as well as learned Public Prosecutor for the State. 2. This appeal under Section 374(2) Cr.P.C. has been preferred by the accused-appellants questioning the correctness of the judgment and order dated 10th February, 2006 passed by learned Sessions Judge, Jaipur District, Jaipur in Sessions Case No. 8/2005 State v. Nand Kishore Gurjar @ Tammi and Another , whereby the learned Trial Court convicted the accused-appellant namely Nand Kishore Gurjar @ Tammi and Rakesh Gurjar @ Pappu both sons of late Shri Bhagwan Sahai Gurjar for the offence punishable under Sections 302 and 302/34 IPC respectively and sentenced each of the accused-appellant to life imprisonment along with fine of Rs. 100/-(Rupees One Hundred) each; in default of payment of fine to further undergo one month's rigorous imprisonment. 3. In brief the facts of the case are that on dated 15.11.2004, complainant Devaram S/o. Shri Jai Narain Gurjar, Resident of Gurjar Ki Talai, Sanganer, Jaipur(P.W. 1) submitted a written report(Exhibit P-1) at 2.40 A.M. at Police Station Sanganer, Jaipur City(South), which reads as under: " mijksDr fo"k; esa fuosnu gS fd eSa xqtjksa dh rykbZ esa jgrk gwa fnukad 14-11-2004 dks esjk HkkbZ gjth jke 10&11 cts ls vk;k FkkA vkt jkr djhc 1-15 feuV ij gekjs ?kj ij esjs ikl Jh eqUuk o dUgS;k vk;s o eq>s crk;k fd] " vkt jkt djhc 11-15 cts gjth jke og dUgS;k esjs ikl ljLorh dksyksuh lkaxkusj eksM+ ij vk;s o ge rhuksa vkil esa ckrphr dj jgs Fks rHkh ihNs ls ,d ek:rh ysdj pys x;sA Veh gjth jke ls xkyh xyksp djus yxkA gekjs le>kus ls Veh ljLorh dksyksuh dh rjQ pyk x;kA nks rhu feuV ckn Veh o mldk NksVk HkkbZ iIiw vk;s iIiw us ihNs ls gjthjke dks idM+ fy;k vkSj Veh us isV esa pkdw ekj fn;k ftlls mldh vkars ckgj vk xbZA eSa o dUgS;k gjth dks S.M.S. vLirky ysdj x;s tgka mlus ne rksM+ fn;kA " esjs HkkbZ gjthjke ds Veh xqtj mlds HkkbZ us pkdw ekj dj gR;k dh gSA fjiksVZ djrk gwa dkuwuh dk;Zokgh djsaA esjs HkkbZ dh yk'k S.M.S. eqnkZ?kj esa gSA fnukad 15-11-2004 izkFkhZ A nsokjke B iq= Jh t;ukjk;.k xqtZj xqtjksa dh rykbZ lkaxkusj] t;iqjA " 4. On the basis of aforesaid written report, FIR No. 840/2004 dated 15.11.2004(Exhibit P-4) was registered about commission of offence punishable under Sections 302 and 302/34 IPC against the above named two persons, i.e. Nand Kishore Gurjar @ Tammi and Rakesh Gurjar @ Pappu at Police Station Sanganer, District Jaipur. After due investigation, charge sheet was filed in the Court of Judicial Magistrate, Sanganer for the aforesaid offence against the accused appellants. Thereafter, the case was committed to the Trial Court. Learned Trial Court, after hearing arguments of parties, framed charge under Section 302 IPC against accused-appellant Nand Kishore Gurjar @ Tammi and under Section 302/34 IPC against accused-appellant Rakesh Gurjar @ Pappu. Upon denial of the charges by the accused-appellants, the trial commenced in the present case. During the trial, the prosecution supported its case with the aid of 14 witnesses, 19 documents and 4 articles i.e., Pant, Shirt, Vest(Baniyan) of deceased Harjiram and knife recovered at the instance of the accused-appellant Nand Kishore Gurjar @ Tammi. An opportunity was given by the learned Trial Court to the accused-appellants as per the provisions of Section 313 Cr.P.C. to explain their conduct with regard to adverse material available in the evidence adduced by the prosecution witnesses, while recording statements of the accused-appellants under Section 313 Cr.P.C. The accused-appellants negated the prosecution evidence and gave explanation as under: " eSa funksZ"k gwa] eq>s >waBk Qalk;k x;k gSA eqUuk ds ikl V~d Fkk] og esjs firkth pykrs FksA esjs firk dk nsgkUr Hkh V~d pykrs gq, gh gqvk FkkA esjs firkth dh V~d pykus dh tks lsysjh ( :i;s ) Fks og eqUuk ugha nsuk pkgrk Fkk] blfy, og >waBs c;ku ns jgk gSA dUgS;k vknru vijk/kh gS vkSj blfy, og gelsa jaft'k j[krk gS D;ksafd og eqUuk vkSj gjth dk nksLr gSA blfy, >waBs c;ku ns jgk gS o eq>s >waBk Qalk jgk gSA " 5. However, despite providing opportunity, no witness in defence was examined by the accused-appellants and only police statements recorded under Section 161 Cr.P.C. of Virendra Singh @ Munna(Exhibit D-1) and Kanhaiya Lal(Exhibit D-2) were exhibited in defence during the evidence of prosecution. 6. However, despite providing opportunity, no witness in defence was examined by the accused-appellants and only police statements recorded under Section 161 Cr.P.C. of Virendra Singh @ Munna(Exhibit D-1) and Kanhaiya Lal(Exhibit D-2) were exhibited in defence during the evidence of prosecution. 6. Learned Trial Court, while relying upon the statements of eye-witnesses namely Virendra Singh @ Munna(P.W. 3) and Kanhaiya Lal(P.W. 5), corroborated with other prosecution witnesses, medical evidence, recovery of blood stained knife, FSL Report and other articles, convicted and sentenced the accused-appellants vide judgment and order dated 10th February, 2006 in terms stated herein above. Feeling aggrieved with the judgment and order passed by the learned Trial Court, the accused-appellants have filed present appeal before this Court. 7. In the appeal, learned Amicus Curiae for the accused appellant mainly reiterated the contentions already advanced before the Trial Court and contended that the Trial Court has erred while relying upon statements of the prosecution witnesses and the prosecution has failed to prove its case beyond reasonable doubt. The findings arrived at by the learned Trial Court are erroneous and perverse to the facts and circumstances of the present case and evidence available on record of the case. The impugned judgment suffers from misreading and non-reading of the vital evidence. The learned Trial Court has failed to consider that it was the duty of the prosecution to stand on its own leg to prove the case against the accused-appellants and the burden cannot be shifted on the accused-persons and the duty of the accused-persons is only to preponderance of probabilities in their favour, but the learned Trial Court, while dealing with the explanation given by accused-appellants in their statements recorded under Section 313 Cr.P.C., has totally failed to consider this vital aspect of the matter. Learned Trial Court has wrongly arrived at the conclusion that the accused-appellant Nand Kishore Gurjar @ Tammi has not been able to show that the incident occurred owing to sudden grave and provocation, just because he has not stated said fact in his statement under Section 313 Cr.P.C. 8. Learned Trial Court has wrongly arrived at the conclusion that the accused-appellant Nand Kishore Gurjar @ Tammi has not been able to show that the incident occurred owing to sudden grave and provocation, just because he has not stated said fact in his statement under Section 313 Cr.P.C. 8. Learned Amicus Curiae further submitted that learned Trial Court has recorded erroneous finding on the genesis of occurrence, as it was the case of the prosecution that initially as soon as the accused appellant Nand Kishore Gurjar @ Tammi reached near the deceased Harjiram, he started abusing the accused and was intervened by Kanhaiya Lal(P.W.5) and Virendra Singh @ Munna(P.W.3). Thereafter, the deceased Harjiram followed the accused Nand Kishore Gurjar @ Tammi and again started abusing him, on which the accused-appellants said to have come out from their houses and accused-appellant Rakesh Gurjar @ Pappu caught hold the deceased Harjiram from behind and accused-appellant Nand Kishore Gurjar @ Tammi inflicted knife blows in his abdomen, owing to which, he sustained injuries and succumbed to death. Drawing attention of this Court to the statement of the Investigating Officer of this case, Krishna Kumar Awasthi(P.W.11), learned Amicus Curiae argued that he has admitted the fact that the incident occurred only after the deceased Harjiram started abusing the accused, therefore, the impugned judgment suffers from patent illegality and the genesis of occurrence has been erroneously considered by the learned Trial Court and the finding recorded by the learned Trial Court on this fact, being against the evidence available on record, deserves to be quashed and set aside. 9. It is also contended by learned Amicus Curiae that the prosecution story as regards the weapon of offence becomes doubtful. Kanhaiya Lal(P.W.5) has stated in his statement that the weapon used was a knife and on being asked by the learned Trial Court itself in question, he admitted that he knows difference between knife and prong(Trishool), whereas P.W.3, Virendra Singh @ Munna clearly stated in his statement that the weapon used was a prong(Trishool). Further the said story of the prosecution also becomes doubtful, as per the medical evidence, as all the injuries sustained by the deceased Harjiram were of single inflict, whereas the prong(Trishool) has three blades. In such circumstances, the opening of wound, which was single in nature, cannot be caused because of the prong(Trishool). Further the said story of the prosecution also becomes doubtful, as per the medical evidence, as all the injuries sustained by the deceased Harjiram were of single inflict, whereas the prong(Trishool) has three blades. In such circumstances, the opening of wound, which was single in nature, cannot be caused because of the prong(Trishool). In these facts and circumstances, the weapon of injury cannot be same as recovered at the instance of the accused-appellant Nand Kishore Gurjar @ Tammi. 10. Learned Amicus Curiae further submitted that prosecution has failed to prove any involvement and common intention of accused-appellant Rakesh Gurjar @ Pappu in this case. Alleged eye-witness of prosecution namely Kana Ram(P.W.6) has not at all identified the accused-appellant Rakesh Gurjar @ Pappu and also clearly stated that what act was done by Tammi's brother is not known to him. The other eye-witnesses Kanhaiya Lal(P.W.5) and Virendra Singh @ Munna (P.W.3) have also not attributed any overt act to the accused-appellant Rakesh Gurjar @ Pappu and have stated contradictory facts to each other with regard to his involvement, which goes to show that the accused-appellant Rakesh Gurjar @ Pappu has falsely been implicated in this case and learned Trial Court has also failed to consider this important aspect of the matter. So, the impugned judgment and order passed by the learned Trial Court deserves to be quashed and set aside. 11. Learned Amicus Curiae further contended that Section 34 IPC is not a substantive offence. It is imperative that before a man can be held liable for acts done by another under this Section, it must be established that there was common intention in the sense of a prearranged plan between the two and the person, sought to be so held liable, had participated in some manner in the act constituting the offence. Unless common intention and participation both are present, Section 34 IPC cannot apply, therefore, learned Amicus Curiae has prayed that instant appeal be allowed, impugned judgment and order passed by the learned Trial Court be set aside and the accused-appellants be acquitted from the charges levelled against them. 12. While Opposing the appeal, learned Public Prosecutor supported the impugned judgment and order passed by the learned Trial Court and submitted that there is no reason to disbelieve the prosecution evidence of the eye-witnesses Kanhaiya Lal(P.W.5) and Virendra Singh @ Munna(P.W.3), who have been named in the FIR also. 12. While Opposing the appeal, learned Public Prosecutor supported the impugned judgment and order passed by the learned Trial Court and submitted that there is no reason to disbelieve the prosecution evidence of the eye-witnesses Kanhaiya Lal(P.W.5) and Virendra Singh @ Munna(P.W.3), who have been named in the FIR also. It is also submitted that eye-witnesses Kanhaiya Lal and Virendra Singh @ Munna have fully supported the prosecution case and there is neither any improvement nor any material contradiction or omission in their statements and they are natural and reliable witnesses in the facts and circumstances of the present case. The incident occurred on 14th November, 2004 at about 11.15 P.M. and the FIR(Exhibit P-4) was lodged at 2.40 A.M. on 15th November, 2004 at Police Station Sanganer, Jaipur. In such a short period, in the night, there is no possibility to implicate the accused-appellants falsely, nor could it have been concocted by natural witnesses produced by the prosecution in the present case. 13. Learned Public Prosecutor further vehemently submitted that in fact, this case is fully proved by the prosecution and guilt is proved beyond any shadow of doubt against both the accused appellants. There is no reason to disbelieve the evidence of eyewitnesses Virendra Singh @ Munna(P.W.3) and Kanhaiya Lal(P.W.5), corroborated with medical evidence, recovery of weapon, i.e., knife and FSL Report also. Learned Trial Court has elaborately considered all the prosecution evidence and defence version also and rightly convicted and sentenced the accused-appellants for the offence under Sections 302 and 302/34 IPC. It is further submitted that even if evidence of witness Kana Ram(P.W.6) is disbelieved by the Trial Court; though Banwari Lal Sharma(P.W.9) and Mukesh Sharma (P.W.10) have not fully supported the case and have been declared hostile, even then, it cannot effect the credibility of statements of eyewitnesses Kanhaiya Lal(P.W.5) and Virendra Singh @ Munna(P.W.3) and other witnesses of the prosecution, in whose testimonies, there is neither any infirmity nor any material contradiction and they are reliable witnesses in the facts and circumstances of the present case. Site Inspection Report(Exhibit P-6) was duly prepared and proved and looking to the site plan, statements of the prosecution witnesses are quite natural and reliable. Site Inspection Report(Exhibit P-6) was duly prepared and proved and looking to the site plan, statements of the prosecution witnesses are quite natural and reliable. The evidence of recovery of Article-5, Knife is also reliable and proved by the prosecution evidence of Investigating Officer and looking to the observations made by the learned Trial Court and also the medical evidence, there is no contradiction about the weapon recovered as knife-prong(Article-5). 14. It is further submitted by the learned Public Prosecutor that mere uttering abusive words would not amount to grave and sudden provocation and particularly in this case, initially as soon as accused-appellant Nand Kishore Gurjar @ Tammi reached near the deceased Harjiram, there was some exchange of abusive words between them and upon intervention by Kanhaiya Lal and Virendra Singh @ Munna(Prosecution witnesses), they left the place of Sanganer Mod and after 2-3 minutes, when the deceased Harjiram reached outside Virendra Singh @ Munna's house, then both the accused-appellants came there. Accused-appellant Rakesh Gurjar @ Pappu caught hold the deceased Harjiram from behind and accused-appellant Nand Kishore Gurjar @ Tammi inflicted knife blows in abdomen etc. Even if, there was some exchange of abusive words, it is not sufficient to cause grave and sudden provocation in this case, because pass on had cooled down by lapse of time and there is a room and scope for premeditation and calculation. 15. Learned Public Prosecutor further submitted that both the accused-appellants have not taken this defence during trial and stated nothing in this regard in their statements recorded under Section 313 Cr.P.C. This defence of the accused-appellant is an after thought and not acceptable in the facts and circumstances of the present case and the evidence available on record. In the facts and circumstances of the present case, it cannot be concluded that death was caused on account of grave and sudden provocation. Learned Public Prosecutor further submitted that involvement, common intention and participation of the accused-appellant Rakesh Gurjar @ Pappu has been proved by the prosecution in this case in view of the facts and circumstances of the present case and statements of eye-witnesses Kanhaiya Lal(P.W.5) and Virendra Singh @ Munna(P.W.3). Learned Public Prosecutor further submitted that involvement, common intention and participation of the accused-appellant Rakesh Gurjar @ Pappu has been proved by the prosecution in this case in view of the facts and circumstances of the present case and statements of eye-witnesses Kanhaiya Lal(P.W.5) and Virendra Singh @ Munna(P.W.3). Both the eye-witnesses have categorically stated that the accused-appellant Rakesh @ Pappu caught hold the deceased Harjiram from behind and Nand Kishore @ Tammi inflicted knife blows in his abdomen owing to which he sustained injuries and succumbed to death. Section 34 IPC has rightly been invoked by the learned Trial Court holding accused-appellant Rakesh @ Pappu guilty under Section 302/34 IPC and the learned Trial Court has correctly applied the law. Hence, present appeal of the accused-appellants lacks merit and the same is liable to be dismissed. In support of his arguments, learned Public Prosecutor has relied upon the following decisions rendered by the Hon'ble Supreme Court as well as this Court also: (i) Gura Singh v. State of Rajasthan, 1984 Cri LJ 1423 ; (ii) K.M. Nanawati v. State of Maharashtra, 1962 AIR 605 ; (iii) Virendra Singh v. State of Madhya Pradesh; JT 2010(8) SC 319. 16. We have given our thoughtful consideration to the submissions made by learned counsel for the parties and have carefully perused the entire oral and documentary evidence adduced by both the parties in the matter as also the record of the learned Trial Court. 17. It is clear from the written report(Exhibit P-1) submitted by the complainant Devaram S/o. Shri Jai Narain Gurjar, brother of deceased Harjiram to SHO, Police Station Snaganer, Jaipur, Krishna Kumar Awasthi(P.W.11) on 15.11.2004 at about 2.40 A.M. that he was informed by Virendra Singh @ Munna(P.W.3) and Kanhaiya Lal(P.W.5) that on that day at around 11.15 P.M. when Harjiram visited both of them, they were talking near Sanganer Mod, the accused Nand Kishore Gurjar @ Tammi came there and started abusing Harjiram, deceased. On being convinced, they left the place of Sanganer Mod. Nand Kishore Gurjar @ Tammi went to his house, which is nearby Vriendra Singh @ Munna's house at Saraswati Colony, Sanganer. Harjiram also reached outside Vriendra Singh @ Munna's house, which is shown as "X" in Site Plan(Exhibit P-6). After 2-3 minutes, both accused-appellants came from their houses. On being convinced, they left the place of Sanganer Mod. Nand Kishore Gurjar @ Tammi went to his house, which is nearby Vriendra Singh @ Munna's house at Saraswati Colony, Sanganer. Harjiram also reached outside Vriendra Singh @ Munna's house, which is shown as "X" in Site Plan(Exhibit P-6). After 2-3 minutes, both accused-appellants came from their houses. The accused Rakesh Gurjar @ Pappu caught hold Harjiram from behind and accused Nand Kishore Gurjar @ Tammi inflicted knife blows in his abdomen owing to which Harjiram succumbed to his injuries. On this FIR, the police started investigation. In this way, it is clear that in this case, FIR was lodged promptly, without any delay and investigation also started immediately. 18. Admittedly, Devaram(P.W.1), brother of deceased Harjiram, who has lodged the FIR, narrated the facts of the incident and supported the facts of FIR, but he is not an eye-witness of the incident and stated the facts as per the information given by eyewitnesses Virendra Singh @ Munna(P.W.3) and Kanhaiya Lal(P.W.5), who have also supported the prosecution story. There is no reason to disbelieve the testimonies of both the eye-witnesses Virendra Singh @ Munna and Kanhaiya Lal. In our opinion, recovery of Article-5(knife) as per recovery memo(Exhibit P-8) and documentary evidence of information under Section 27 of the Evidence Act(Exhibit P-13); after arrest of accused-appellant Nand Kishore @ Tammi(Exhibit P-11) are also proved by the testimony of the Investigating Officer, Krishan Kumar Awasthi(P.W.11) and other prosecution witnesses. It is also true that Mautbir witnesses, Banwari Lal Sharma(P.W.9) and Mukesh Sharma(P.W.10) of Exhibit P-8 have not fully supported the recovery memo and turned hostile, but they admitted their signatures on Exhibit P-8 and even then, it cannot affect the credibility of statement of Krishna Kumar Awasthi, Investigating Officer(P.W.11) and evidenced of eye-witnesses P.W.3 Virendra Singh @ Munna and P.W.5 Kanhaiya Lal and other witnesses of prosecution. 19. It is undisputed that deceased Harjiram met with homicidal death due to shock brought about as a result of Injury No. 4, which is sufficient to cause death in ordinary course of nature, as per Post Mortem Report(Exhibit P-19) and the statement of Dr. Rajesh Kumar Verma(P.W.13). Dr. Rajesh Kumar Verma(P.W.13) has clearly stated in his statement that Injury No. 4 can be caused by knife(Article-5). Rajesh Kumar Verma(P.W.13). Dr. Rajesh Kumar Verma(P.W.13) has clearly stated in his statement that Injury No. 4 can be caused by knife(Article-5). So, the argument of learned Amicus Curiae about contradiction of recovered article being knife or prong(Trishool) is baseless, as per the evidence of eye-witnesses. Rajesh Kumar Verma(P.W.13). Dr. Rajesh Kumar Verma(P.W.13) has clearly stated in his statement that Injury No. 4 can be caused by knife(Article-5). So, the argument of learned Amicus Curiae about contradiction of recovered article being knife or prong(Trishool) is baseless, as per the evidence of eye-witnesses. In this regard, learned Trial Court has also observed in detail after examining Article-5 which reads as under: " U;k;ky; }kjk iz'u iwNus ij bl lk{kh us ;g Lohdkj fd;k gS fd pkdw izn'kZ vkVhZdy&5 mij ls uqdhyk vFkkZr iksbZUVsM gS ,oa bl pkdw dk /kkjnkj Qy yHkxHk 8&9 lsUVhehVj yEck gSA 8&9 lsUVhehVj mij bl pkdw ds Qy dh pkSM+kbZ yxHkx 5 lsUVhehVj gSA uhps dh vkSj 9 lsUVhehVj dh yEckbZ ds i'pkr~ mlds nksuksa vkSj HkksVs fljs 'kq: gksrs gSa] ftudh izR;sd dh pkSM+kbZ yxHkx 2 lsUVhehVj gS tks mij ls uqdhys gSaA ;gka ;g Li"V djuk vko';d gS fd ih0M0 3 Jh ohjsUnz flag us eq[; ijh{kk esa ;g c;ku fd;k gS fd vfHk;qDr Veeh }kjk gjth ds isV esa 2&3 f='kqy ls okj fd;s FksA ih0M0 5 Jh dUgS;k yky us vfHk;qDr VEeh }kjk gjth ds pkdw ls 2&3 izdkj djuk crk;k gSA fdUrq U;k;ky; us pkdw vkVhZdy izn'kZ&5 dks ns[kk gSA bldk fp=.k f='kwy tSlk yxrk gS fdUrq oLrqr% ;g pkdw dh gh ifjf/k esa vkrk gS vkSj mlds vkxs ds Qy esa nksusa vksj /kkj gSA vr% ;fn dksbZ lk{kh bls f='kqy dgs vkSj dksbZ lk[kh bls pkdw dgs rks ;g Lohdkj ugha fd;k tk ldrk gS fd ;g pkdw ugha gSa D;ksafd ;g f='kqy tSlk gh pkdw gS vkSj bl lEcU/k esa ,d lk{kh }kjk mls f='kwy dgus ,oa nwljs lk{kh }kjk mls pkdw dgus ls ;g ugha ekuk tk ldrk fd pkdw ds lEcU/k esa nksuksa lk{khx.k ds dFkuksa esa dksbZ fojks/kkHkkl gSA ;gka ;g Hkh Li"V djuk vko';d gS fd ih0M0 11 Jh d`".k dqekj voLFkh us ?kVuk ds rqjUr i'pkr ?kVuk LFky dk fujh{k.k fd;k Fkk A vkSj ogka dksbZ pkdw vFkok [kwu ds /kCcs iM+s gq, ugha ik;s FksA vfHk;qDr uUnfd'kksj ds n`"Vkar ij fnukad 19-11-2004 dks ikuh dh [kkyh Vadh esa dpjs ds uhps ls pkdw ih0M0 9 Jh cuokjh yky 'kekZ ,oa ih0M0 10 Jh eqds'k 'kekZ dh mifLFkfr esa cjken fd;k tkuk crk;k x;k gSA ;gka ;g Li"V djuk vko';d gS fd bu nksuksa gh lk{khx.k us pkdw dh cjkenxh dks lkfcr ugha fd;k gS vkSj os i{knzksgh gq, gSaA fdUrq ih0M0 11 Jh d`".k dqekj voLFkh tks fd bl ekeys dk vuqla/kku vf/kdkjh gS] us ;g c;ku fd;k gS fd vfHk;qDr uUnfd'kksj us LosPNk ls mls pkdw cjken djkus dh lwpuk izn'kZ ih&13 nh Fkh rFkk bl lwpuk ds vuqlj.k esa ikuh dh [kkyh Vadh esa dpjs ds uhps ls pkdw izn'kZ ih&18 ds ek/;e ls cjken dj mls lhy eksgj fd;k FkkA mYys[kuh; gS fd vuqla/kku vf/kdkjh }kjk ;g pkdw jklk;fud ijh{k.k gsrq fof/k foKku iz;ksx'kkyk] t;iqj Hkstk x;k gSA bl pkdw ds lkFk e`rd ds diM+s Hkh Hksts x;s Fks vkSj fof/k foKku iz;ksx'kkyk] t;iqj dh fjiksVZ izn'kZ ih&16 ds vuqlkj e`rd ds diM+ksa vFkkZr deht] isaV ,oa cfu;ku ,oa vfHk;qDr ds n`"VkUr ij cjken'kqnk pkdw pkjksa ij gh ekuo jDr ik;k x;k gSA ;g fjiksVZ izn'kZ ih&16 lk{; esa iBuh; gS vkSj bl ij vfo'okl djus dk i=koyh ij dksbZ vk/kkj ugha gSA " 20. We have given our thoughtful consideration on the defence version about "Grave and sudden provocation". In our opinion, the defence version is not trustworthy and acceptable in the facts and circumstances of the present case and the evidence available on record. Firstly, both the accused-appellants have not stated this version in their statements recorded under Section 313 Cr.P.C., secondly as per evidence of the eye-witnesses, accused Nand Kishore Gurjar @ Tammi came at Sanganer Mod, where deceased Harjiram, Virendra Singh @ Munna and Kanhaiya Lal were already there. There was some exchange of abusive words between the deceased and accused Nand Kishore Gurjar @ Tammi and this was intervened by eye witnesses. They left the place and after 2-3 minutes, when the deceased Harjiram reached outside Virendra Singh @ Munna's house then, both the accused-appellants came from their houses. Accusedappellant Rakesh Gurjar @ Pappu caught hold the deceased Harji Ram from behind and accused-appellnat Nand Kishore Gurjar @ Tammi inflicted knife blows. So, the exchange of abusive words was at Sanganer Mod and then after lapse of some time, this incident occurred in front of the house of Virendra Singh @ Munna. 21. It is well settled principle that whether there is a grave and sudden provocation or not, is a question of fact. The impact of provocation on human frailty is to be judged in the context of social position. The standard to see whether there was provocation or not is reasonable man's standard, belonging to the same class of society. The deceased Harjiram, both the accused-appellants as well as eyewitnesses of the case belong to middle class family of village Sanganer, nearby Jaipur city. Words and gesture may also under certain circumstances cause grave and sudden provocation to the accused, so as to bring their act within the exception. The mental background created by the previous act of the victim may be taken into consideration in ascertaining whether the subsequent act caused grave and sudden provocation for committing the offence. The fatal blow caused by knife be clearly traced to the influence of passion arising from that provocation and not after the passioned head cooled down by lapse of time or otherwise giving room and scope for premeditation and calculation. There is no cross-examination by the defence from the eye-witnesses on this point in this regard. The fatal blow caused by knife be clearly traced to the influence of passion arising from that provocation and not after the passioned head cooled down by lapse of time or otherwise giving room and scope for premeditation and calculation. There is no cross-examination by the defence from the eye-witnesses on this point in this regard. So, in our considered opinion, in the facts and circumstances of the case and evidence available on record, the plea taken by the accused-appellants for grave and sudden provocation is not sustainable in the facts and circumstances of the case. 22. The prosecution case is founded mainly on the testimonies of the eye-witnesses Virendra Singh @ Munna(P.W.3) and Kanhaiya Lal(P.W.5), so also on the recovery of blood stained knife on the information being supplied by the accused-appellant Nand Kishore Gurjar @ Tammi under Section 27 of the Evidence Act, corroborated with medical evidence. Virendra Singh @ Munna(P.W.3) has clearly deposed in his examination-in-chief inter alia as under: " fnukad 14-11-2004 dh ?kVuk gSA jkr dks djhc lk<+s nl cts ge yksx lkaxkusj esu jksM+ ij [kM+s FksA gjth o dUgS;k ;kno nhokyh dh jke jke djus esjs ikl vk, ge jksM+ ij gh fey x, FksA ihNs ls ,d ek:fr dkj vkbZ] ftlesa VEeh xqtZj] dey eh.kk vkSj ykyh cuk vk;sA VEeh mQZ uUnfd'kksj gjth dks xkyh cdus yx x;kA geus buds chp cpko djds jkthjke djok fn;kA VEeh ogka ls VEeh ogka ls vius ?kj pyk x;k] eSa Hkh vius ?kj pyk x;k] ihNs&ihNs gjth xqtZj esjs ?kj ij vk x;k@gekjs ihNs&ihNs VEeh vkSj mldk HkkbZ iIiw Hkh esjs ?kj esa pkSd esa vk x,A pkSd esa iIih us gjth dks ihNs ls idM+ fy;k vkSj VEeh us f='kqy ls nks&rhu ckj mlds isV esa ekjkA blds ckn nksuksa ogka ls Hkkx x,A dUgS;k ;kno vkSj eSa nksuksa gjth dks ogka ls vLirky ysdj pys x,A eSaus bl ?kVuk dh lwpuk gjth ds HkkbZ nsokjke dks nhA " 23. Another eye-witness Kanhaiya Lal(P.W.5) has also supported the prosecution version and deposed in his examination-inchief inter alia as under: " eSa gjthjke dks tkurk gwaA eSa eqfYteku uUnfd'kksj ,oa iIiw nksuksa dks tkurk gwaA nksuksa eqyfteku ekStwnk vnkyr gSaA yxHkx 6 eghus igys X;kjgosa eghus dh pkSng rkjh[k dh ckr gSA jkr ds yxHkx lk<+s nl cts dk le; FkkA eSa o gjth eqUuk ds ikl fnokyh dh jke&jke djus lkFk&lkFk x, FksA eqUuk gedks jksM+ ij gh fey x;k FkkA eqUuk dks ohjsUnz Hkh dgrs gSaA ge eqUuk ls ckr dj jgs Fks fd brus esa VEeh vkSj mlds nks lkFkh ek:rh esa ogka vk x,A gjth vkSj VEeh ds chp cksy&pky pkyw gks xbZA eSaus vkSj eqUuk us budks chp cpko djds vyx dj fn;kA VEeh oxSjg ogka ls vius ?kj dh rjQ pys x,A gjth us dgk fd eqUuk ds eka cki ls eSa vkSj feydj vkmaxkA fQj eSa vkSj gjth eqUuk ds edku ij igqap x,A tc eSa vkSj gjth eqUuk ds ekdu ij igqaps rks ogk VEeh o ldk NksVk HkkbZ iIiw ogka [kM+s gq, FksA VEeh ds NksVs HkkbZ iIiw us gjth dk gkFk idM+ fy;k vkSj VEeh us nks&rhu pkj pkdw ds ekj fn,A fQj gjth uhps fxj x;kA mldh vkars ckgj vk xbZA eSa rks ogka ls ;g lhu ns[kdj nwj Hkkx x;kA tc VEeh vkSj iIiw ogka ls pys x, rks eSa gjth dks mBkus ds fy, ogka okil vk;kA eSa vkSj eqUuk nksuksa gjth dks mBkdj vLirky ys x,A " 24. It is settled law that the conviction can be based on testimony of solitary eye-witness, if his version is of sterling worth and his presence at the time of occurrence has been proved beyond reasonable doubt. It is to be noticed that as per the Site Inspection Report(Exhibit P-6), place of occurrence is situated in front of house of Virendra Singh @ Munna and his present at the place of occurrence is quite natural. Other eye-witness Kanhaiya Lal's presence is also established, as per the prosecution evidence and in the facts and circumstances of the case, because after the incident both the eyewitnesses have informed to the Deva Ram(P.W. 1) about incident immediately after admitting the deceased Harjiram in S.M.S. Hospital, Jaipur. There is no reason to believe that as to why they will give false evidence against the accused-appellants. There is no reason to believe that as to why they will give false evidence against the accused-appellants. In our considered opinion, statements of Virendra Singh @ Munna(P.W.3) and Kanhaiya Lal(P.W.5) do not suffer from any material contradiction or omission and have withstood the test of cross-examination as well and also stood corroborated with medical evidence and do inspire confidence and faith. Therefore, we are of the firm view that it stands proved beyond reasonable doubt that the deceased Harjiram died on account on injuries inflicted by knife recovered at the instance of the accused-appellant Nand Kishore Gurjar @ Tammi. 25. We have also scrutinised the entire evidence on record to satisfy ourselves that whether the accused-appellant Rakesh Gurjar @ Pappu has been wrongly convicted by the learned Trial Court under Section 302 read with Section 34 IPC. According to the learned Amicus Curiae, in the facts and circumstances of the present case, Section 34 IPC could not have been invoked by the learned Trial Court. 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. It is true that this Section is only a rule of evidence and does not create a substantive offence. Section 34 IPC does not create a distinct offence. It lays down a principle of liability. When two or more persons join actively in an assault on a third person, they are directly responsible for the injuries caused to the extent to which they had a common intention to cause those injuries and what their common intention was must be gathered from the circumstances. Before a man can be held liable for acts done by another under the provisions of Section 34 IPC, it must be established that there was common intention in the sense of a prearranged plan between the two and the person sought to be so held liable had participated in some manner in the act constituting the offence. Unless common intention and participation are both present, Section 34 IPC cannot apply. Unless common intention and participation are both present, Section 34 IPC cannot apply. We have gone through the entire record of the case and it is proved by the evidence available on record that accused-appellant Rakesh Gurjar @ Pappu caught hold from behind the deceased Harjiram, then, accused-appellant Nand Kishore Gurjar @ Tammi had inflicted knife blows in abdomen of the deceased. So, it is clear that accused-appellant Rakesh Gurjar @ Pappu has facilitated in this case and both the accused-appellant came together from their house and active participation is also there in this case by the accused-appellant Rakesh Gurjar @ Pappu and both accused-appellants fled away after the incident from the place of occurrence. 26. In Major Singh v. State of Punjab, AIR 2003 SC 342 , the Hon'ble Supreme Court held that the fact that the accused held the hand of the deceased to facilitate the assailants to assault the deceased, is said to have shared common intention of committing murder of the deceased. In State of Punjab v. Fauja Singh, 1997 (3) Crimes 170 , it has been held that if some act is done by the accused-person in furtherance of common intention of his co-accused, he is equally liable like his co-accused. In Nitya Sen v. State of West Bengal, AIR 1978 SC 383 , Hon'ble Apex Court held that accused-appellant on reaching the place of occurrence with other accused persons caught hold the deceased. He was given fatal blow when the appellant was standing nearby with a pistol to prevent the eye-witnesses from coming to the rescue of the victim. It has further been held that the appellant can be convicted under Section 302 read with Section 34 IPC. In Karamat Ali v. State of Assam, AIR 1978 SC 1392 , Hon'ble Supreme Court held that when several persons attacked the deceased with the common intention to kill, their conviction by the aid of Section 34 IPC is proper and the fact that no overt act was attributed to one is immaterial. In Nabodi Jayaraman etc. v. State of Tamil Nadu, AIR 1993 SC 777 , Hon'ble Apex Court held that the existence of common intention has also to be inferred from the facts and circumstances of the case. In Nabodi Jayaraman etc. v. State of Tamil Nadu, AIR 1993 SC 777 , Hon'ble Apex Court held that the existence of common intention has also to be inferred from the facts and circumstances of the case. To determine the common intention, the nature of injuries, the background of the incident, part played by the accused and the nature of the weapon used to cause the injuries besides other factors are required to be properly considered and appreciated. In Amrik Singh v. The State of Punjab 1972 CrLJ 465 SC , Krishna Govind Patil v. State of Maharashtra, AIR 1963 SC 1413 , Ram Tahal v. The State of U.P., AIR 1972 SC 254 and Hari Om & 2 ors. v. State of UP, 1993 (1) Crimes 294 SC , Hon'ble Apex Court held that in order to bring a case under Section 34 IPC, it is not necessary that there must be a prior conspiracy or premeditation, but the common intention can be formed in the course of occurrence. 27. In our considered opinion, common intention is a question of fact. Proof of common intention is a matter of inference to be drawn from the circumstances of the case. Direct evidence to prove the intention of any individual is very difficult, if not impossible. It is to be detected from conduct or other relevant circumstances of the case. In the present case, both the accused-appellants came together on spot carrying deadly weapon, one caught hold the deceased and another inflicted knife blows in abdomen of the deceased and murder is committed and then both accused-appellants fled away from the place of occurrence after the incident. So, their common intention to commit murder of the deceased Harjiram stands proved. It is, however, not necessary to show that any overt act must have been done by a particular accused. In this case active participation of accused Rakesh Gurjar @ Pappu is also well proved. Section 34 IPC will be attracted, if it is proved that the criminal act has been done by all or anyone of the accused-persons in furtherance of the common intention. So, in our considered opinion, learned Trial Court has correctly held guilty the accused-appellant Rakesh Gurjar @ Pappu for the offence under Section 302/34 IPC. Section 34 IPC will be attracted, if it is proved that the criminal act has been done by all or anyone of the accused-persons in furtherance of the common intention. So, in our considered opinion, learned Trial Court has correctly held guilty the accused-appellant Rakesh Gurjar @ Pappu for the offence under Section 302/34 IPC. In the facts and circumstances of the present case and the evidence available on record, we do not find any force in the arguments advanced by learned Amicus Curiae. 28. In view of evidence of eye-witnesses Virendra Singh @ Munna(P.W.3) and Kanhaiya Lal(P.W.5), the evidence of Devaram (P.W.1), who lodged the FIR soon after the incident, evidence of Dr. Rajesh Kumar Verma(P.W.13), who has conducted autopsy of the deceased Harjiram(Exhibit P-19), evidence of Krishan Kumar Awasthi (P.W.11), Investigating Officer, evidence of recovery of knife at the instance of accused-appellant Nand Kishore Gurjar @ Tammi, FSL Report(Exhibit P-16) and all other evidence of prosecution discussed above and also by the learned Trial Court in the impugned judgment and order, commission of offence punishable under Section 302 IPC against the accused-appellant Nand Kishore Gurjar @ Tammi and under Section 302 read with Section 34 IPC against the accused-appellant Rakesh Gurjar @ Pappu is established beyond any shadow of doubt. 29. In the totality of the prosecution evidence, defence taken by the accused-appellants as well as facts and circumstances of the present case, we do not find any thing wrong in the findings recorded by the learned Trial Court and we find that the learned Trial Court was fully justified in holding the accused-appellants guilty of committing the alleged offences and sentencing them therefor accordingly. In our opinion defence version is not trustworthy and tenable, looking to the facts and circumstances of the present case and evidence of the prosecution available on record. 30. In view of above, we are of the considered opinion that there is no merit in this appeal. Conviction and sentence imposed upon the acccused-appellants by the learned Trial Court vide impugned judgment and order dated 10th February, 2006 is just, legal, proper and based upon legal and unimpeachable evidence produced by the prosecution and the material available on record. 31. Consequently, the present appeal filed by the accused-appellants namely Nand Kishore Gurjar @ Tammi and Rakesh Gurjar @ Pappu fails and the same is, hereby, dismissed accordingly. 31. Consequently, the present appeal filed by the accused-appellants namely Nand Kishore Gurjar @ Tammi and Rakesh Gurjar @ Pappu fails and the same is, hereby, dismissed accordingly. The conviction as well as sentence imposed upon the accused-appellants by the learned Trial Court is affirmed.Appeal dismissed. *******