JUDGMENT 1. This appeal is directed against the judgment dated 23.4.2008 passed by learned Sessions Judge, Hanumangarh recording conviction of accused Raja Ram for the offence punishable under Section 302 I.P.C. and accused Bachan Singh and Sohan Singh for the offence punishable under Section 302/34 I.P.C. inter alia, and sentencing them to undergo life term imprisonment. 2. Briefly stated, facts of the case are that in the intervening night of 30/31.12.2003 at about 0:05 Hrs a written report (Exh.P/3) was submitted by Shri Darbara Singh (PW-13) at Police Station, Tibbi, District Hanumangarh with the assertion that at about 9.00 pm on 30.12.2003 he, his wife Pratap Kaur, nephew Shrawan Singh with his son Sukhdev aged about one year, wife of Shrawan Singh Smt. Prakash Kaur were sitting at their house after having meals. His son Satnam was also sleeping there. Shrawan Singh went out from the room to have water for his son Sukhdev; at that time Bachan Singh, Sohan Singh and Raja Ram entered in house and threatened Shrawan Singh that he can no more escape himself. They abused him too. Bachan Singh and Sohan Singh told Raja Ram to shoot Shrawan. Raja Ram in turn made a fire due to which Shrawan received a fire-arm injury at his chest. He died at the spot. The accused persons were keeping vengeance with the complainant and deceased from quite a long time due to some dispute regarding money dues. 3. On basis of the written report, a First Information Report (Exh.P/13) was drawn and the investigation commenced. 4. The Investigating Agency first got autopsy of the corpus of deceased and as per the report, the cause of death was rupture of heart due to gun-shot injury. The Investigating Agency on 01.1.2004 arrested accused persons and on 3.1.2004 recovered a pistol at the instance of accused Raja Ram. The pistol so recovered was sent to Forensic Science Laboratory for its ballistic examination and as per the report given, the pistol i.e. 12- bore country made was serviceable and fired, though, the definite time of its last fire was not ascertained. The shirt worned by the deceased at the time of his death was also sent to Forensic Science Laboratory and it was analyzed that the presence of blackening on the shirt was due to combustion of gun-powder. The shirt worned by the deceased at the time of his death was also sent to Forensic Science Laboratory and it was analyzed that the presence of blackening on the shirt was due to combustion of gun-powder. The Investigating Agency during the course of investigation collected other necessary evidence and submitted a chargesheet before the competent court. The case then was committed to the court of sessions and the learned Sessions Court after providing opportunity of hearing to the accused, framed appropriate charges against them. The accused persons denied charges framed and desired to have complete trial. 5. During the course of trial, the prosecution supported its case with the aid of five eye-witnesses. An opportunity was accorded to the accused persons as per Section 313 Cr. P.C., to explain adverse and incriminating circumstances appearing against them in prosecution evidence. The accused in general termed the evidence false and pleaded their innocence. In defence four documents were exhibited and testimony of Bhagwana Ram (DW-1), Om Prakash (DW-2), Girdhari (DW-3) and Harbans Singh (DW-4) was examined. 6. The learned trial court after examining the entire material available on record and considering rival submissions advanced by learned Public Prosecutor and counsel for the accused persons held accused Raja Ram guilty for the offence punishable under Sections 302, 460 I.P.C. and also for the offence under Section 3/25 (1-B)(a) of Arms Act. The accused Bachan Singh and Sohan Singh were held guilty for the offence punishable under Sections 302/34 and 460 I.P.C. 7. In appeal, while challenging the conviction recorded, the arguments advanced by learned counsel for the appellants are:- (i) The eye-witnesses cited by the prosecution and relied upon by the trial court are close relatives of Shrawan, therefore, the version of entire incident given by them should have been examined by the trial court with acute care and caution, but the same was not done. The eyewitnesses as a matter of fact were not even present at the spot at the time of incident, therefore, the narration of facts by them is not trustworthy. The eyewitnesses as a matter of fact were not even present at the spot at the time of incident, therefore, the narration of facts by them is not trustworthy. (ii) No evidence is available to arrive at the conclusion for sharing common intention by the accused Bachan Singh and Sohan Singh with accused Raja Ram to commit murder, further there was no overt act on the part of these two persons, as such, they have been erroneously convicted with the aid of Section 34 Indian Penal Code. 8. Learned Public Prosecutor while opposing the appeal submits that, though, the eye-witnesses are relatives of deceased but there is no reason to disbelieve their testimony. They from the very inception maintained their version with definite facts about involvement of accused persons in the crime in-question. Learned Public Prosecutor further pointed out that the evidence available on record in definite terms indicate sharing of common intention by all the three accused persons. 9. Heard learned counsel for the appellants and learned Public Prosecutor and also examined the entire evidence in lucid. 10. It is not in dispute that the incident took place in the night of 30/31.12.2003 at about 9.00 pm and information of that was given to police at 0:05 Hrs. The Investigating Agency immediately thereafter commenced investigation and the corpus was subjected to autopsy. As per medical evidence, Shrawan Singh died due to rupture in heart caused by fire-arm injury. In view of this evidence, there is no doubt about his homicidal death. PW-3 Darbara Singh, who submitted written report to the police in the intervening night of 30/31.12.2003 deposed before the court that on the fateful day he was at his house with his wife, Shrawan Singh and Satnam Singh after having meals. Satnam Singh was sleeping at that time. Shrawan went out to have water for his young son. A fire-arm injury at the chest of Shrawan was given by Raja Ram, consequent thereto Shrawan died at the spot. Before giving fire-arm injury Bachan Singh and Sohan Singh told Raja Ram to kill Shrawan by gun shot. This witness further states about some dispute existing with accused persons about due money. As per this witness, Bachan Singh is real brother of Pratap Kaur and was residing just opposite to his own house. Before giving fire-arm injury Bachan Singh and Sohan Singh told Raja Ram to kill Shrawan by gun shot. This witness further states about some dispute existing with accused persons about due money. As per this witness, Bachan Singh is real brother of Pratap Kaur and was residing just opposite to his own house. In cross-examination, this witness stated that when Shrawan received fire-arm injury, he was sitting at a distance of about nine feet. Satnam Singh was sleeping inside the room but Pratap Kaur, Prakash Kaur and he himself were outside the room. PW-4 Pratap Kaur, who happens to be the real sister of accused Bachan Singh also supported the prosecution case. As per this witness, Bachan Singh, Sohan Singh and Raja Ram entered in the house and started abusing Shrawan Singh. They threatened Shrawan Singh that he could not be escaped further. On hearing this, she, her husband and Prakasho came out and found Sohan Singh and Bachan Singh telling Raja Ram to fire a bullet to kill Shrawan. Raja Ram then gave a fire-arm shot at the chest of Shrawan Singh; consequently, Shrawan Singh fell down and died at the spot. Prakasho @ Prakash Kaur (PW-5) wife of deceased Shrawan Singh also supported the prosecution case. As per this witness, on the fateful day she alongwith her fatherin- law Darbara Singh, husband Shrawan Singh, mother-in-law Pratap Kaur and brother-in-law Satnam Singh were present in room. At about :00 pm Bachan Singh, Sohan Singh and Raja Ram entered in their house and started abusing. Shrawan Singh incidentally went out to have water for his son. Sohan Singh and Bachan Singh then instigated Raja Ram to kill Shrawan Singh. Raja Ram gave a gun shot at the chest of Shrawan Singh; consequentially he fell down and died at the spot. This witness also stated about existing vengeance between his family and accused for some money dues. 11. In defence DW-1, DW-2, DW-3 and DW-4 stated that they did not know who killed Shrawan Singh but nothing by these witnesses is stated that may be contrary to the version narrated by the eye-witnesses. 12. The main emphasis of learned counsel for the appellants is that Darbara Singh, Prakash Kaur and Pratap Kaur are close relatives of the deceased, therefore, their testimony is not reliable. Suffice to mention here that Darbara Singh is the stepfather of deceased Shrawan Singh. 13. 12. The main emphasis of learned counsel for the appellants is that Darbara Singh, Prakash Kaur and Pratap Kaur are close relatives of the deceased, therefore, their testimony is not reliable. Suffice to mention here that Darbara Singh is the stepfather of deceased Shrawan Singh. 13. True it is, the evidence adduced by close relatives is required to be examined quite cautiously, but that cannot be presumed ipse-dixit to be biased or not trustworthy. The eye-witness Darbara Siongh, Pratap Kaur and Prakash Kaur in very definite terms stated about participation of the accused persons in the crime in-question. They have not tried to improve their stand that was taken even before the Investigating Agency, as such, we do not find any reason to disbelieve testimony of these witnesses. It is also pertinent to note that the accused Bachan Singh is real brother of Smt. Pratap Kaur. The other two accused are also close relative of Pratap Kaur. In such circumstances, we do not find any reason to disbelieve that she would have stated anything false about her own brother and would have implicated him falsely in murder case of her son. In our considered opinion the eye-witnesses are trustworthy and the trial court rightly relied upon them. The involvement of accused Raja Ram is further substantiated on the basis of recovery of a pistol at his instance. This accused was arrested on 01.1.2004 and subsequent thereto an information as per Section 27 of Indian Evidence Act was given by him on 3.1.2004 at 7:45 am. On the same day, at 8:40 am a pistol was recovered as per the disclosure made. The medical evidence available on record also establishes the prosecution version about causing of death by giving a gun-shot fire. 14. The evidence discussed above indicates definite involvement of the accused persons in the crime in-question and causing of death of Shrawan Singh by giving a gun shot fired by Raja Ram. 15. The next argument advanced by learned counsel is about the role of accused persons Bachan Singh and Sohan Singh. It is emphasised that there is no evidence to establish sharing of common intention by the accused persons to kill Shrawan and further that there was no overt act on the part of these accused persons. 16. 15. The next argument advanced by learned counsel is about the role of accused persons Bachan Singh and Sohan Singh. It is emphasised that there is no evidence to establish sharing of common intention by the accused persons to kill Shrawan and further that there was no overt act on the part of these accused persons. 16. To establish an offence under Section 34 I.P.C., the prosecution is required to prove that more than one person participated in commission of criminal act, the persons participated in the crime were having a common intention. It requires prearranged plan and preconcert and such pre-meeting of mind can also be developed at the spur of moment. So far as the evidence relating to overt act is concerned, it is well settled that for determination of common intention shared by the accused persons there is no need to establish overt act of individual accused. The requirement of law is that there should be common intention and participation of the accused in commission of the offence concern. 17. In the case in hand all the accused persons came together at the spot and started abusing deceased and his father Darbara Singh. They also told to Shrawan Singh that he cannot escape himself any more. As per all the eye-witnesses Bachan Singh and Sohan Singh instigated Raja Ram to fire a bullet. These witnesses, as such, were knowing that Raja Ram was having a fire-arm with him. Raja Ram acting upon the command given by the accused persons fired a gun shot at the chest of deceased Shrawan Singh and that resulted in rupture of his heart. Accused Bachan Singh and Sohan Singh, if were not sharing any common intention, then there was no occasion for them to instigate the accused Raja Ram. The accused Bachan Singh and Sohan Singh did not indulge in any overt act but their participation in the crime is well established. As a matter of fact, all the three accused persons came at the residence of Darbara Singh to kill Shrawan Singh with full preparation. The evidence available clearly establishes sharing of common intention in causing the crime, thus, the trial court rightly recorded conviction of accused Bachan Singh and Sohan Singh with the aid of Section 34 I.P.C.The appeal in view of discussions made above is having no merit, hence dismissed.Appeal dismissed. *******