JUDGMENT : I.A. Ansari, J. - This appeal has put to challenge the judgment, dated 09.06.2009, passed, in Sessions Trial No. 246 of 2006, by learned Additional Sessions Judge, Fast Traek Court No.1, Saharsa, whereby the accused-appellant, Arbind Sah, stands convicted under Section 302 read with Section 34 of the Indian Penal Code and the order, dated 16.06.2009, whereby the accused-appellant, stands sentenced to suffer imprisonment for life and pay fine of Rs. 5,000/- (five thousand) and, in default of payment of fine, suffer simple imprisonment for a period of six months with further direction that the fine amount shall, if realized, be paid to the family of the deceased. 2. The case of the prosecution, as unfolded at the trial, may, in brief, be described as under: (i) On 24.06.2006, while Kusuma Devi @ Dukhni Devi (PW 1) was plucking moong (a kind of pulse) in her field, her husband, Ram Sah (since deceased), was cleaning the weeds, their field being located adjacent to the accused-appellant's garage, near Balwahat Chowk, where repair of motorcycle used to take place. Because of scorching heat, Ram Sah, in order to take rest, went to, and sat at, a machan (an erected structure for taking rest) situated near the said garage. A little while thereafter, accused-appellant called Ram Sah inside the garage. Ram Sah accordingly went to the garage of the accused-appellant. Though Kusuma Devi (PW 1) had seen her husband, Ram Sah, going to the said garage, she had not noticed that her husband had gone to the said garage on being called by the accused-appellant. After about 15-20 minutes, while Ram Sah's wife, Kusuma Devi, noticed accused-appellant, Arbind Sah, accompanied by a Muslim boy, who used to work at the said garage, running away. At the time, when Arbind Sah was so running away, he was carrying a blood-stained spade on his shoulder, a radio and also his shirt and trouser. Nirmala Devi (PW 4), too, who used to work in a chura mill (i.e. beaten ride mill), situated adjacent to the said garage, had seen Ram Sah going inside the said garage on being called by the accused appellant and, sometime thereafter, Arbind Sah running away carrying a spade, a radio and trouser and, running, behind the accused-appellant, was the said Muslim boy. As Kusuma Devi's husband did not come out of the said garage for about half-an-hour, Kusuma Devi became worried and restless. She, therefore, called Nirmala Devi (PW 4) and while calling Nirmala Devi (PW 4), Kusuma Devi (PW 11) moved forward towards the said mill. On being called by Kusuma Devi, as mentioned hereinbefore, Nirmala Devi (PW 4) accompanied Kusuma Devi (PW 11) to the said garage. They opened the door of the garage and when they went inside the said garage, they saw Ram Sah lying, on the ground, in a pool of blood, with injuries on his person including an injury on his neck, which had substantially slit Ram Sah's neck. On alarm being raised by these two women, many people came running. Some of those, .who came so running, had already seen the accused-appellant, Arbind Sah, running away carrying a spade on his shoulder, a radio and a trouser, accompanied by a Muslim boy, who used to work in the garage of the accused-appellant. While some of the witnesses had noticed that the spade had blood-stains, some witness had noticed some blood-stains on the wearing apparels of the accused-appellant; (ii) A phone call was received, at Balwahat Police Out Post, on 24.06.2006, at about 13.25 hours, informing the said Out Post that some untoward incident had taken place in the motorcycle garage situated on the East of the Balwahat bridge. This information was entered into the station diary of the said Out Post, the relevant entry being Entry 370, dated 24.06.2006. Reacting on the information so received, In-charge of the said Out Post (PW 13) came to the said garage and found Ram Sah lying on the floor of the garage with his neck substantially slit, a large quantity of blood had come out of the injury and Ram Sah was unconscious. The police seized the blood found at the garage. The Police Officer (PW 13), then, recorded fardbayan (Exhibit-4) of Kusuma Devi (PW 11) and sent injured Ram Sah to Saharsa Hospital, where Ram Sah was declared dead. (iii) There was a land dispute between the accused-appellant, Arbind Sah, on the one hand and deceased Ram Sah, on the other hand, inasmuch as the accused-appellant wanted to purchase deceased Ram Sah's land situated close to the garage, but Ram Sah had declined to sell the said land. (iii) There was a land dispute between the accused-appellant, Arbind Sah, on the one hand and deceased Ram Sah, on the other hand, inasmuch as the accused-appellant wanted to purchase deceased Ram Sah's land situated close to the garage, but Ram Sah had declined to sell the said land. This refusal had annoyed Ram Sah and his relation with the accused-appellant became strained. There was, however, no case, civil or criminal, instituted, in this regard, between the parties concerned. (iv) Based on the fardbayan, Simri Bakhtiyarpur (Balwahat) Police Station Case No. 76 of 2007 was registered, on 24.06.2006 itself, under Sections 324/307/34 of the Indian Penal Code. (v) In course of time, as injured Ram Sah was declared dead, Section 302 read with Section 34 of the Indian Penal Code was added to Simri Bakhtiyarpur (Balwahat) Police Station Case No. 76 of 2006. 3. During investigation, a spade, claiming to be the weapon of assault, was seized from the house of the accused-appellant, who was arrested and forwarded to the Magistrate. 4. At the trial, a charge was shown to have been framed under Section 102 read with Section 34 of the Indian Penal Code against the accused-appellant. To the charge so framed, the accused-appellant pleaded not guilty. 5. In support of their case, the prosecution examined altogether 14 witnesses. The accused was, then, examined under Section 313 (1) (b) of the Code of Criminal Procedure. In his examination aforementioned, the accused denied that he had committed the offence, which was alleged to have been committed by him, the case of the defence being that of denial. No evidence was adduced by the defence. 6. Having, however, come to the conclusion that the accused had been proved guilty of the charge framed against him, learned trial Court convicted the accused accordingly and passed sentence against him as mentioned above. Aggrieved by his conviction and the sentence, which has been passed against him, the accused, as a convicted person, has preferred this appeal. 7. We have heard Mr. Shiva Shankar Sharma, learned counsel for the appellant, and Mr. Ashwini Kumar Sinha, learned Additional Public Prosecutor for the State. 8. Aggrieved by his conviction and the sentence, which has been passed against him, the accused, as a convicted person, has preferred this appeal. 7. We have heard Mr. Shiva Shankar Sharma, learned counsel for the appellant, and Mr. Ashwini Kumar Sinha, learned Additional Public Prosecutor for the State. 8. While considering the present appeal, it needs to be noted that there is no dispute that the dead body of Ram Sah was subjected to post-mortem examination on 24.06.2006 (i.e. on the very day of the occurrence), and the doctor (PW 12) found following ante- mortem injuries : "(i) Rigour mortis present on upper and lower limbs. Neck and eyes partially closed. Mouth slightly opened; (ii) One sharp-cut injury on the back of neck 8" x 4" x bone deep. Also sharp-cut injury on 1st, 2nd and 3rd cervical vertebra along with sharp-cut injury on spinal cord of cervical portion; (iii) One sharp-cut injury 4" x 2" x muscle deep on the back of scapula with bone-cut injury of left scapula; (iv) One sharp-cut injury 2" x 1" x muscle deep on the back of right scapular region; (v) One sharp-cut injury 1" x 1/2" x muscle deep on the back of right scapular region; (vi) One sharp-cut injury 1" x 1/2" x muscle deep near 4th injury on back of right scapula. On open chest cavity : All the viceras present and pale. Heart empty. On opening of abdominal cavity: all the viceras intact and pale." 9. In the opinion of the doctor (PW 12), death was caused due to shock and haemorrhage, following neorogenic shock. It is also in the evidence of the doctor (PW 12) that the said ante-mortem injuries were caused by a sharp cutting weapon. 10. In his cross-examination, the doctor (PW 12) clarified that the said ante-mortem injuries could have been caused by a spade, but cannot be caused by fall. 11. In the face of the above medical evidence on record, there can be no difficulty in arriving at the conclusion that Ram Sah was given as many as five blows by a sharp-edged weapon, such as, spade, causing thereby incised wounds, described, in post-mortem report, as cut injuries, including a sharp-cut injury on the back of the neck, which was not only bone deep, but had also cut through the 1st. 2nd and 3rd cervical vertebra and a sharp-cut injury was also caused to the cervical cord at the cervical area. There can also be no two opinions that the injuries caused were homicidal in nature and would have, in the ordinary course of nature, caused death of a person. 12. Considering the fact that the evidence of Kusuma Devi (PW 11) and Nirmala Devi (PW 4) form the pivot around which revolves the case of the prosecution, we, now, take into consideration the evidence of these two witnesses. 13. According to the evidence of Kusuma Devi (PW 11), widow of the deceased, on the day of occurrence, while she was plucking moong in the field located beside the garage of the accused, where repairing of motorcycle used to take place, her husband, Ram Sah, was cleaning the weeds, but on account of the scorching heat, Ram Sah went to the machan, belonging to the accused, and sat on the machan to take rest. After sometime, PW 11 noticed her husband, Ram Sah, going inside the garage and did not come out thereafter. On the other hand, accused went out of the back door of the garage, carrying a spade on his shoulder, which had blood-stains and at that time, the accused was also carrying a radio, trouser and shirt and he was being followed by a Muslim boy, who used to work in the said, garage. 14. It is in the evidence of PW 11 that she became worried as to why her husband had not been coming out and that was why, she (PW 11), along with Nirmala Devi (PW 4), went inside the garage and found her husband. Ram Sah. lying on the floor of the garage in injured and unconscious state, an injury having been caused, among others, on the neck and a large quantity of blood had accumulated on the floor of the garage. It is also in the evidence of PW 11 that she (PW 11) and Nirmala Devi (PW 4) raised halla and many of their neighbours, namely. Rajesh, Arif, Kanchchedi Sah, Baldeo Sah, Raj Kumar Sah and others arrived there. 15. PW 11 has deposed that a Police Officer also arrived there and sent her husband to Saharsa Hospital and after sometime, she came to learn that her husband had died. Rajesh, Arif, Kanchchedi Sah, Baldeo Sah, Raj Kumar Sah and others arrived there. 15. PW 11 has deposed that a Police Officer also arrived there and sent her husband to Saharsa Hospital and after sometime, she came to learn that her husband had died. PW 11 has also deposed that the accused had been demanding her husband's land located beside the garage, but her husband had refused and this had annoyed the accused. 16. PW 11 has further deposed that the police had recorded her statement and she had given her thumb impression there. PW 11 has added that her father-in-law had gone through the statement, which the police had recorded and had signed on the same. 17. Broadly in tune with the evidence of PW 11, PW 4 has deposed that her husband owned a chura mill (i.e. beaten rice mill) located near the garage of the accused and on the day of occurrence at about 11 O'clock. she was present in the said mill and had seen Ram Sah sitting on the machan after taking water and while Ram Sah was so sitting on a machan, she (PW 4) noticed that accused Arbind Sah had called Ram Sah and taken Ram Sah inside the garage and, then, the door of the garage was shut and, sometime thereafter, accused Arbind Sah was seen by her (PW 4) running out of his garage carrying a spade on his shoulder, a radio and trouser under his arm-pit and he (accused Arvind Sah) was being followed by a Muslim boy and, at that time, Kusuma Devi (PW 11) was plucking moong in her field situated by the side of the said garage. 18. It is in the evidence of PW 4 that Kusuma Devi (PW 11) came to her and enquired about her husband and, then, both of them went to the said garage looking for Kusuma's husband, Ram Sah, but when they opened the garage of the accused, they found Ram Sah lying on the floor of the garage with his neck half-slit and blood had come out of his neck. 19. 19. It is also in the evidence of PW 4 that both, she (PW 4) and Kusuma Devi (PW 11), began to weep and cry, whereupon others came, a crowd gathered there and, amongst them, were present Baldeo Sah, Gauri Sah, Ashok, Rajesh, Kanchchedi Sah, Barelal Sah, Shambhu Sah and Raj Kumar Sah. PW 4 has deposed that police, too, arrived there and sent Ram Sah to Saharsa Hospital and, later on, they were informed that Ram Sah had died. PW 4 has clarified that Ram Sah had drunk water and sat on a machan to take rest, because of scorching sun and his field, where Kusuma Devi (PW 11) had been plucking moong, was by the side of the garage of accused Arbind Sah. Further evidence of PW 4 is that accused wanted to purchase the land of the deceased, because the same was situated by the side of the garage of the accused, but Ram Sah was unwilling to sell the land. 20. On a combined and cautious reading of the evidence given by PW 4 and PW 11, one striking aspect of their evidence, as correctly pointed out, on behalf of the appellant, is while PW 4 claims that Ram Sah went to the garage of the accused on being called by the accused, PW 11, widow of Ram Sah, has merely deposed that she saw her husband going to the said garage and does not, thus, according to the learned counsel for the appellant, corroborate the evidence of PW 4 that Ram Sah had gone to the said garage on being called by the accused. 21. 21. At the first blush, though there appears to be an apparent inconsistency in the evidence given by these two witnesses, what is to be borne in mind is that PW 4 and PW 11 were at two different places and it is quite reasonable to infer that while plucking moong and unmindful of the events, which were to follow, PW 11 could have remained so busy in plucking moong that while she had seen her husband going to the garage, she had not noticed the fact that it was the accused, who had called her husband to the garage; whereas PW 4 can be reasonably inferred to have noticed the fact that Ram Sah had gone to the said garage, not on his own, but on being called by the accused. 22. We, therefore, see no inherently irreconcilable inconsistency between the evidence given by PW 4, on one hand, and PW 11, on the other. Their evidence, thus, describing the occurrence, remains completely unshaken. 23. Before proceeding further, we may point out that Mr. Shiva Shankar Sharma, learned counsel for the appellant, has correctly pointed out that in her cross-examination, PW 11 has deposed that the statement, in the fardbayan, was recorded by the Investigating Officer according to what had been told by her father-in-law. While considering this aspect of the case, it needs to be kept in mind that there is no dispute that came to the scene of the occurrence on the basis of a telephonic message received, at the Balwahat Police Out Post, that an untoward incident had occurred in a garage located near Balwahat Chowk. 24. Thus, the police investigation to find out as to what had happened, in the said garage, had already begun before the fardbayan was recorded. This apart, and more importantly, it is also not in dispute that the Investigating Officer was, indeed, reported by PW 11 that (i) Ram Sah had been seen by her going to the said garage. which belonged to the accused; (ii) that the accused was seen running away out of the back side of the said garage carrying, on his shoulder, a spade; and (iii) a Muslim boy, who used to work in the said garage, also ran out of the back door of the said garage. which belonged to the accused; (ii) that the accused was seen running away out of the back side of the said garage carrying, on his shoulder, a spade; and (iii) a Muslim boy, who used to work in the said garage, also ran out of the back door of the said garage. Led by her apprehensions as to why her husband had not been reappearing, when PW 11, accompanied by PW 4, entered the garage by opening its door, they found, as we have described above, Ram Sah lying seriously in injured condition on the floor of the said garage. 25. It is, therefore, not of much significance that fardbayan was recorded according to what the father-in-law of PW 11 had reported to the police, when, if we repeat, it is not in dispute that PW 11 had, indeed, reported to the police officer, at the very first available opportunity, what she has, eventually, deposed at the trial. 26. Yet another important aspect of the evidence of PW 4 and PW 11 is that while PW 4 does not say that the spade, which the accused was seen carrying, had blood-stains, PW 11 has deposed that the spade, in question, was blood-stained. 27. We may pause have to point out that during investigation, a spade was allegedly, seized from the house of the accused. The spade, so seized, did not have any blood-stain. There is no evidence to show that the said spade was the weapon of offence, particularly, when we notice that the spade was not put to serological test. 28. Situated thus, it is clear that one cannot confidently hold that the spade, which, according to the evidence on record, the accused was seen carrying on his shoulder, was stained with blood of the deceased; what we can certainly held, and we do hold, in the face of the unshaken evidence of PW 4 and PW 11, that while the accused was seen running out of the back door of the garage carrying a spade on his shoulder, the spade had some stains of blood like substance. 29. 29. Notwithstanding, however, the fact that the weapon of offence could not be proved in the present case, what has surfaced unscathed from the evidence of PW 4 and PW 11 are that : (i) the accused has his garage located by the side of the agricultural field of Ram Sah; (ii) the accused wanted to purchase deceased Ram Sah's land located by the side of the said garage, but Ram Sah was unwilling to sell his land and this had annoyed the accused; (iii) while Ram Sah was taking rest on the machan after taking water, because of scorching sun, he was called by the accused to the garage and Ram Sah accordingly went inside the garage; (iv) Ram Sah was, thereafter, never seen, alive; on the other hand, however, the accused was seen, sometime thereafter, running out of the garage by its back side, carrying, on his shoulder, a spade, which had stains of blood like substance; (v) out of apprehension that some wrong might have been caused to her husband. Ram Sah, and that was why he was not coming out, when she (PW 11) accompanied by PW 4, opened the door of the garage and entered the garage, they found Ram Sah lying, in a pool of blood, on the floor of the garage, with the injuries as have been mentioned above; (vi) no weapon or no instrument, which could have been used as a weapon for causing incised wounds, was found inside the said garage and the only weapon, which could have caused the injuries, which Ram Sah had sustained, was a spade, which the accused was seen carrying on his shoulder, while running away from the garage; (vii) no one entered into the garage and no explanation has been offered, or discernable from the evidence on record, as to why the accused ran away, followed by the said Muslim boy, and how Ram Sah was so seriously injured. 30. Since the accused was, according to the evidence on record, present inside the garage, when Ram Sah sustained the said injuries, it was clearly within the special knowledge of the accused as to how Ram Sah had sustained injuries. While the burden to prove an accused guilty beyond reasonable doubt always lies on the prosecution, the onus of proof may keep shifting depending on the facts of a given case. 31. While the burden to prove an accused guilty beyond reasonable doubt always lies on the prosecution, the onus of proof may keep shifting depending on the facts of a given case. 31. In the case at hand, the onus lied with the accused-appellant to show as to how Ram Sah sustained injuries, which led to his death inside the garage of the accused-appellant. Since the only possible weapon of offence, namely, the spade was seen being carried away by the accused and not by the Muslim boy, who used to work in his garage, the assailant, in the present case, could have been none other than the accused-appellant. 32. Lending support to the evidence of PW 4 and PW 11, PW 1, brother of the deceased, has deposed that on the day of occurrence, at about 11:30 a.m., while he was present, at Balwahat Chowk, at a distance of about 20-25 yards on the North of the place of occurrence, he saw the accused running away with stains of blood on his shoulder carrying, in his hands, a spade, and a radio under his armpit and a blood-stained trouser in his hand and a Muslim boy was also with him. It is in the evidence of PW 1 that after sometime, he heard halla that Arbind Sah had slit the neck of Ram Sah the sharpedged weapon inside his garage and when he (PW 1) went to the place of occurrence, he saw Ram Sah inside the garage with his neck slit and there was blood at the place of occurrence and soon after his arrival there, police came and the injured was sent to hospital, but the doctor declared him dead. 33. The evidence of PW 2, PW 3, PW 5, PW 6 and PW 7 are similar in nature and substance as the evidence of PW 1, the only difference, however, between the evidence of PW 1 and the evidence of some other witnesses, such as, PW 2, PW 3 and PW 6 being that PW 2, PW 3 and PW 6 claim that they had seen three persons with the accused. 34. 34. Because of the fact that all the witnesses had not seen the accused at the same point of time and from the same place, it is quite possible that the accused had been joined, while the accused was so running, by more than one person and was, therefore, seen running away with 2-3 persons. This would not, however, reduce the creditworthiness of the evidence given by PW 1, PW 2, PW 3, PW 5, PW 6 and PW 7 or of the other witnesses inasmuch as the unshaken fact, which surfaces from the evidence on record, is that the accused-appellant was seen running out of his garage from its back side along with one Muslim boy, who used to work in his garage, and, at that time, the accused was carrying, on his shoulder, a spade leaving Ram Sah in his garage and Ram Sah was found, shortly thereafter, lying in a pool of blood, as described above, and no one had been seen, entering into the garage, after the accused had run away along with the said Muslim boy and no weapon or instrument. which could be used as a weapon, was-found inside the garage and the only weapon, which could have caused the kind of injuries, which Ram Sah had sustained, was the spade, which the accused was seen carrying, on his shoulder, while so running away. 35. Nothing has been elicited from the, cross-examination of these witnesses to show that what they had deposed were untrue or false. The evidence of these witnesses, thus, lends credible support to the evidence of PW 4 and PW 11. 36. For the reasons, which we have discussed above, we find that the evidence of PW 4 and PW 11 inspire great confidence. 37. It has been contended, on behalf of the appellant, that the witnesses, who have been examined by the prosecution, are close or distant relatives of the deceased and, hence, they are all interested witnesses and ought not to have been relied upon by the learned trial Court. 38. 37. It has been contended, on behalf of the appellant, that the witnesses, who have been examined by the prosecution, are close or distant relatives of the deceased and, hence, they are all interested witnesses and ought not to have been relied upon by the learned trial Court. 38. It may be noted that merely because a witness is a relative of an injured or of a deceased, the witness does not become an interested witness and even if he is found to be an interested witness, his evidence cannot be discarded on that ground alone unless his evidence is found to be inherently and intrinsically unreliable so much so that the Court considers the witness's evidence unsafe to rely upon or discards his evidence as untrustworthy. 39. In the case at hand, the evidence given by the prosecution witnesses, particularly, PW 4 and PW 11, is natural, simple, coherent and consistent. Their evidence, therefore, inspire great confidence, more importantly, when their evidence is not found, on close scrutiny, to have been suffering from any falsehood or when their evidence is not found to be, in any manner, improbable, unnatural or shaken. 40. While considering the above aspect of the case, it is imperative to note that when a case rests on circumstantial evidence, the following conditions must be fulfilled and fully established : (i) The circumstances from which the conclusion of guilt is to be drawn should be fully established; (ii) The facts, so established, should be consistent only with the hypothesis of the guilt of the accused, that is to say, the circumstances shall not be explainable on any hypothesis other than the hypothesis of guilt of the accused; (iii) The circumstances must be of a conclusive nature and tendency; (iv) The circumstance must exclude every possible hypothesis except the one sought to be proved; and (v) There must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability, the act must have been done by the accused. See Sharad Birdhichand Sarda v. State of Maharashtra, AIR 1984 SC 1622 . See M. G. Agarwal v. State of Maharashtra, AIR 1963 SC 200 and Hanumant Govind Nargundkar and another v. State of Madhya Pradesh, AIR 1952 SC 343 . 41. See Sharad Birdhichand Sarda v. State of Maharashtra, AIR 1984 SC 1622 . See M. G. Agarwal v. State of Maharashtra, AIR 1963 SC 200 and Hanumant Govind Nargundkar and another v. State of Madhya Pradesh, AIR 1952 SC 343 . 41. In short, thus, when a case rests on circumstantial evidence, every link, in the chain of circumstances, must be cogently and convincingly proved and when various links, in the chain of circumstances, are joined together, the same shall form a complete chain unerringly pointing to the person, facing trial, as the perpetrator of the offence or offences, which he is alleged to have committed. 42. In a case based on circumstantial evidence, the Courts are required to apply a dual test in the sense that even when the incriminating circumstances are consistent with the hypothesis of the guilt of the accused, it must, at the same time, be cross-checked by the Court and the Court must be satisfied that there is nothing in the evidence on record consistent with any hypothesis of innocence of the accused. 43. In the case at hand, it is the admitted case of the prosecution, as discernable from the evidence on record, that there was present, inside the garage, besides the accused and the deceased, one Muslim boy, who used to work in the said garage. 44. The questions, therefore, arises whether the said Muslim boy was one, who had caused injuries on the person of Ram Sah leading to his death, or whether it was the accused-appellant, who had caused injury on the person of Ram Sah leading to his death or whether it was in furtherance of the common intention of the accused and the said Muslim boy that Ram Sah was injured and died due to the injuries sustained by him. 45. With regard to the above, it is of immense importance to note that the said Muslim boy did not apparently have any motive to assault Ram Sah, far less, cause Ram Sah's death. This apart, the said Muslim boy was merely seen running behind the accused, who was running away with a spade on his shoulder, which was, in the facts and attending circumstances of the present case, the only weapon available inside the garage and the said spade was the only available weapon, which could have caused injuries of the nature, which the said deceased had sustained. There is not even an iota of evidence to show that Ram Sah was injured and killed in furtherance of the common intention of the accused-appellant and the said Muslim boy. The present appellant could not have, therefore, been convicted of the offence of murder punishable under Section 302 of the Indian Penal Code with the aid of Section 34 of the Indian Penal Code; rather the accused-appellant ought to have been convicted under Section 302 of the Indian Penal Code simpliciter. 46. It needs to be pointed out that Section 34 of the Indian Penal Code is merely a rule of evidence and does not create a substantive offence. Section 34 of the Indian Penal Code rests on the principle of joint liability in the commission of a criminal act. The striking feature of Section 34 of the Indian Penal Code is the element of participation in action. When a criminal act is committed in furtherance of common intention of two or more persons, each one of them becomes liable constructively for the act of the other. Direct proof of common intention is seldom available and, therefore, such an intention can be inferred only from the circumstances appearing from the proven facts of the case and the proven circumstances. In order to bring home a charge based on common intention, prosecution has to establish by evidence, direct or circumstantial, that there was prior meeting of mind of all the accused persons to commit the offence. The common intention may be pre-determined state of mind or may be formed on the spur of moment; but it must necessarily be formed before the commission of the crime. While aiming to make one person responsible for the act of another person, Section 34 of the Indian Penal Code provides 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. (See Chimanbhai Jagabhai Patel v. State of Gujarat and another, AIR 2009 SC 3223 . See also Ashok Kumar v. State of Punjab, ( AIR 1977 SC 109 and Ch. Pulla Reddy and others v. State of Andhra Pradesh, AIR 1993 SC 1899 ). 47. (See Chimanbhai Jagabhai Patel v. State of Gujarat and another, AIR 2009 SC 3223 . See also Ashok Kumar v. State of Punjab, ( AIR 1977 SC 109 and Ch. Pulla Reddy and others v. State of Andhra Pradesh, AIR 1993 SC 1899 ). 47. Though it is not impermissible in law to convict an accused with the aid of Section 34 of the Indian Penal Code without bringing, on trial, the other person, who was involved in the occurrence, the fact remains that in the case at hand, when the evidence on record is kept in view, there remains no reasonable doubt in mind that it was none, but the accused-appellant, who had assaulted and caused the injuries, which were found on the person of Ram Sah, leading to his death. The accused could have, therefore, been safely convicted under Section 302 of the Indian Penal Code simplicitor without the aid of Section 34 of the Indian Penal Code, which, as already pointed out above, is a rule of evidence. 48. We may also pause, at this stage, to also point out that though the charge, which was framed against the accused-appellant, at the trial, was Section 302 read with Section 34 of the Indian Penal Code, the fact remains that the substance of charge did not mention that the accused had caused the death in furtherance of common intention inasmuch as the charge, in question, read thus: "That you, on or about the 24th day of June, 6 at Hario Balwahat Chowk, P.S. Simri Bakhtiyarpur P.O. Balwahat, District Saharsa, did commit murder by intentionally causing the death of Ram Sah and thereby committed an offence punishable under Section 302/34 of the Indian Penal Code, and within my cognizance." (Emphasis is supplied) 49. The charge, in question, clearly shows that the accused-appellant was asked to respond to the charge of having committed murder by intentionally causing death of Ram Sah. Thus, the charge framed was under Section 302 of the Indian Penal Code simpliciter. Hence, the defect or error in the charge cannot be said to have caused any prejudice to the accused if the penal provisions, whereunder he stands convicted, is modified by removing Section 34 of the Indian Penal Code and if he is convicted under Section 302 of the Indian Penal Code simpliciter. 50. Hence, the defect or error in the charge cannot be said to have caused any prejudice to the accused if the penal provisions, whereunder he stands convicted, is modified by removing Section 34 of the Indian Penal Code and if he is convicted under Section 302 of the Indian Penal Code simpliciter. 50. There is no dispute before us that an omission, defect or error in the charge would not per se render the finding of guilt, reached against an accused, at a trial, bad in law if no prejudice is shown to have been caused to the accused by such omission, defect or error in the charge. 51. In the present case, the charge, in substance, was of an offence having been intentionally committed by the accused-appellant under Section 302 of the Indian Penal Code simpliciter and, hence, notwithstanding the fact that the accused was asked to respond to the charge under Section 302 read with Section 34 of the Indian Penal Code, no prejudice would be caused to the accused-appellant if he is convicted under Section 302 of the Indian Penal Code simpliciter. 52. Though the accused-appellant has been convicted under Section 302 read with Section 34 of the Indian Penal Code, the position of law is that if the appellate Court finds, in an appeal against such a conviction, that Section 34 of the Indian Penal Code was not attracted, and that the accused could have been and ought to have been convicted under Section 302 of the Indian Penal Code, simpliciter and independent of Section 34 of the Indian Penal Code, the appellate Court can convict the accused under Section 302 of the Indian Penal Code simpliciter, which is precisely what Section 386 of the Code of Criminal Procedure conveys, when it states that in an appeal against conviction, the appellate Court may alter the finding maintaining sentence. 53. In short, thus, when the evidence on record, in the present case, is carefully analyzed and marshalled, there remains no doubt that the accused-appellant has been proved to have committed the offence of murder and could have, therefore, been convicted under Section 302 of the Indian Penal Code simpliciter. 54. 53. In short, thus, when the evidence on record, in the present case, is carefully analyzed and marshalled, there remains no doubt that the accused-appellant has been proved to have committed the offence of murder and could have, therefore, been convicted under Section 302 of the Indian Penal Code simpliciter. 54. In the result and for the foregoing reasons, we hold the appellant guilty of the offence under Section 302 of the Indian Penal Code and uphold the sentence, which has been passed against him by the learned trial Court. 55. In terms of the above observations, conclusions and findings arrived at by this Court, this appeal shall stand dismissed. 56. Send back the Lower Court Records along with a copy of this judgment. Samarendra Pratap Singh, J. - I agree. Appeal dismissed.