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2015 DIGILAW 2247 (ALL)

Ujja @ Ujagar v. State of U. P.

2015-08-05

ARVIND KUMAR TRIPATHI, RANJANA PANDYA

body2015
JUDGMENT Ranjana Pandya, J. 1. Challenge in this appeal is to the judgment and order dated 22.04.1982 passed by 5th Additional District & Sessions Judge, Hardoi in S.T. No. A394 of 1981 (State vs Ujja @ Ujagar and others), Police Station Manjhila, District Hardoi, whereby the appellants were convicted under Section 302 read with Section 34 and were sentenced to undergo imprisonment for life and further were directed to pay a fine of Rs. 1000/- each with default stipulation. 2. The prosecution story in nutshell is that the informant namely Jamirul Hasan Khan had his crasher towards the northern side of the village about one furlong away. The deceased Bharat son of Nattha was working on this crasher. In 1977, the deceased Bharat had chopped the nose of Sadhu for which trial was pending since then. Sadhu was having inimical terms with the deceased and always have intention to kill him, due to which Bharat did not go to his village. He was working at the informant's crasher. On 02.07.1978 the informant was supervising the work. The deceased Bharat, Naiem, Kayyum, Sajjad, Niyamatullah and Nazafullah Khan were loading "Lauta" in the bullock-carts at about 04: 30 A.M. Suddenly, Sadhu came armed with a single barrel gun, he was accompanied by his son Ram Baran, Gajran son of Shahzad Pasi armed with lathi and Ujja who was also relative of Sadhu armed with double barrel gun came. Ujja exhorted Sadhu and shouted that Bharat should be killed, since he had chopped the nose of Sadhu. At this Sadhu fired at Bharat who fell down. All the accused ran away towards north. Bharat died on the spot, hence, the report was lodged at the police station on the same day at 07: 30 A.M. A case was registered whose investigation was entrusted to Sri Shaukat Hussain, S.I. After investigation, the I.O. submitted charge sheet against the accused Ujja @ Ujagar, Sathu, Ram Baran and Gajraj, under Sections 302 read with Section 34 I.P.C. After committal of the case to the court of session charges under Section 302 read with Section 34 I.P.C. were framed against the accused persons who denied the charge and claimed trial. 3. The prosecution examined PW-1 Zameerual Hasan Khan who is informant of the case. He is also said to be an eye witness of the occurrence. This witness proved the first information report as Exhibit Ka-1. 3. The prosecution examined PW-1 Zameerual Hasan Khan who is informant of the case. He is also said to be an eye witness of the occurrence. This witness proved the first information report as Exhibit Ka-1. PW-2 Naiem is also an eye witness who has given his testimony to prove the prosecution case. PW-3 is Dr. Satya Pal, Surgeon who conducted the postmortem of the deceased. He found the following ante-mortem injuries on the dead body of the deceased : - "Gun shot, two wounds of entry each 2.2 Cm. in diameter 1 Cm. Apart over mid line, upper most part of enigastrium just below xiphoid process. Direction downwards., Depth Peritoneal cavity. No blackening, tattooing charring present." 4. In internal examination of both the walls of the stomach, a wound of 1 Cm. Circumference were found. 250 gms. of digested food was found in the intestine. The intestine had wounds. The liver was ruptured by 7 Cm. X 6 Cm. One plastic wadding piece and two small and two big pellets were found in the peritoneal cavity. 5. The doctor has opined that the death of the deceased was due to shock and hemorrhage due to ante-mortem injuries. This witness has also proved the postmortem report as Exhibit Ka-2, wadding as Exhibit-1 and pellets as Exhibit -2. 6. The prosecution has further examined PW-4 Constable Vishambhar Dayal who took the dead body in sealed condition to the hospital. PW-5 S.I. Shaukat Hussain being the I.O. Was also examined before the trial court is whose absence the case was registered. This witness has proved chick F.I.R. as Exhibit Ka-4. Copy of G.D. as Exhibit Ka-5, inquest report Exhibit Ka-6, photo of the dead body Exhibit Ka-7, Challan of the dead body Exhibit Ka-8, letter of the medical officer incharge Exhibit Ka-9, site plan Exhibit Ka-10, clothes of the deceased Exhibits 3 and 4. Further this witness has proved recovery memo Exhibit Ka-11, Ka-12, blood stained and normal earth as Exhibit Ka-7 and 8, recovery memo Exhibit Ka-13 and 14 and charge sheet Exhibit Ka-15. 7. PW-6 Constable Nand Lal was also examined before the trial court who had handed over the papers to the I.O. PW-7 is Gokul Prasad Shukla, S.I. Who deposited the blood stained clothes and pellets in the Maalkhana and proved copy of Maalkhana register Exhibit Ka-16. 8. 7. PW-6 Constable Nand Lal was also examined before the trial court who had handed over the papers to the I.O. PW-7 is Gokul Prasad Shukla, S.I. Who deposited the blood stained clothes and pellets in the Maalkhana and proved copy of Maalkhana register Exhibit Ka-16. 8. The accused was examined under Section 313 Cr.P.C. In which the accused has denied the allegation of committing offence. They also denied that the deceased was servant of complainant Zameerul Hasan. It has been stated that the witnesses are relatives of the informant and the case was got instituted due to enmity of Sadhu. It has also been stated that the report was filed against the deceased, his brother and Gaya Prasad. 9. The accused examined DW-1 Latafat Hussain. 10. The trial court after hearing the counsel for the parties and perusing the evidence on record passed the impugned judgment and order by which appellants were convicted under Section 302 read with Section 34 I.P.C. 11. Feeling aggrieved, the accused appellants have filed this present appeal. 12. The accused Ujja @ Ujagar and Sadhu died during the pendency of the appeal, hence, this appeal as against them was abated. 13. We have heard Sri Amit Chaudhary, counsel for the accused-appellants Ram Baran and Gajraj and Smt. Ruhi Siddiqui, learned A.G.A. and perused the record. 14. Learned counsel for the accused-appellants has vehemently argued that: - The accused could not have been convicted with the aid of Section 302 read with Section 34 I.P.C., in as much as the prosecution has totally failed to prove common intention on the part of all the accused. There was no motive for the accused to kill the deceased and even in the prosecution case, no plausible motive has been assigned. The witnesses produced in the case are interested witnesses and are related to each other. The statement of the accused recorded under Section 313 Cr.P.C. Is not in accordance with law, in asmuch as, no question was put to the accused regarding their common intention to commit the offence. 15. The first information report is said to be the backbone of a criminal case. The statement of the accused recorded under Section 313 Cr.P.C. Is not in accordance with law, in asmuch as, no question was put to the accused regarding their common intention to commit the offence. 15. The first information report is said to be the backbone of a criminal case. According to the chick report Exhibit Ka-4, the occurrence took place on 02.07.1978 at 04: 30 A.M. And the report was lodged on the same day at 07: 30 A.M. The distance of the police station from the place of occurrence being 6 Kms. The report can safely be said to be prompt. 16. Perusal of the report shows that it contains the names of the accused. The weapon with which each of the accused was armed. The names of the eye witnesses, the place of occurrence which suffice the ingredients of the first information report. 17. Since the first information report is prompt, there is no possibility of any manipulation to make the prosecution case onerous. 18. According to the first information report, Sadhu was armed with single barrel gun, his son Ram Baran was armed with lathi, Gajraj was armed with lathi and Ujja was armed with double barrel gun. 19. According to the first information Ujja exhorted, at which Sadhu fired at Bharat. As far as, this evidence is concerned PW-1 Zameerul Hasan has specifically stated that all the four accused came to the spot armed with their respective weapons and on the exhortation of Ujja, Sadhu fired a shot at Bharat due to which Bharat died. No reason has been given from the side of the appellant as to what could be the reason for PW-1 Zameerul Hasan to falsely implicate the accused. Zameerul Hasan has specifically stated that he was not related to the deceased but since prior to the occurrence, Bharat, the deceased had chopped the nose of the appellant Sadhu due to which a case has been registered and after getting himself bailed out, deceased Bharat started serving the complainant and used to live at the house of the complainant. 20. In the cross-examination, this witness has admitted that the accused and this witness belong to the same party. A fishing cross-examination was done but no major contradiction was found in the cross-examination of this witness. 20. In the cross-examination, this witness has admitted that the accused and this witness belong to the same party. A fishing cross-examination was done but no major contradiction was found in the cross-examination of this witness. PW-2 Naiem who has also specifically stated that all the four accused came to the scene of occurrence and at the exhortation of Ujja, Sadhu fired at Bharat who fell down and died. Both the witnesses PW.-1 and 2 has specifically stated that all the four accused came together and fled away together. 21. The relationship of all the accused is not disputed in asmuchas in the statement of the accused recorded under Section 313 Cr.P.C., the accused have said that they are not companion but had admitted that the accused Ram Baran is son of Sadhu, accused Ujja is Samdhi of Sadhu and Gajraj is nephew of Sadhu. Thus, the prosecution has proved the involvement and presence of all the four accused on the spot. 22. Counsel for the appellants has submitted that no overt act was committed by the present appellants namely Ram Baran and Gajraj. Even according to the prosecution version, they were only standing at the scene of occurrence. They did not say anything or commit any act, hence they could not be convicted under Section 302 read with Section 34 I.P.C. 23. In support of argument, learned counsel for the appellants has placed reliance on (2008) 17 SCC 277 : 2009 (65) ACC 132 (SC), (Nagaraja Vs. State of Karnataka), in which the Apex Court has held as under: - "18. For invoking the provisions of Section 34 IPC, at least two factors must be established; (1) common intention, and (2) participation of the accused in the commission of an offence. For the aforementioned purpose although no overt act is required to be attributed to the individual accused but then before a person is convicted by applying the doctrine of vicarious liability not only his participation in the crime must be proved but presence of common intention must be established. It is true that for proving formation of common intention, direct evidence may not be available but then there cannot be any doubt whatsoever that to attract the said provision, prosecution is under a bounden duty to prove that the participants had shared a common intention. It is true that for proving formation of common intention, direct evidence may not be available but then there cannot be any doubt whatsoever that to attract the said provision, prosecution is under a bounden duty to prove that the participants had shared a common intention. It is also well settled that only the presence of the accused by itself would not attract the provisions of Section 34 IPC. Other factors should also be taken into consideration for arriving at the said conclusion. The accused persons were not related to each other; they did not have any family connection; they have different vocations. It has not been established that they held any common animosity towards the deceased." 24. Learned counsel for the appellants has further argued that as per law laid down, it is well settled that common intention referred to in Section 34 I.P.C. presupposes a prior concert, a pre-arranged plan i.e. a prior meeting of minds and thus, the common intention may be inferred from the surrounding circumstances and the conduct of the parties. 25. Learned counsel for the appellants has further placed reliance upon (2014) 3 SCC (Cri) 101 : 2014 (86) ACC 693 (SC), (Nagesar Vs. State of Chhattisgarh), in which it has been laid down that "Mere presence or association with other members alone, reiterated, is not per-se sufficient to hold every one of them criminally liable for the offences committed by the others unless there is sufficient evidence on record to show that each one also intended to or knew the likelihood of commission of such offending act(s)." 26. Learned A.G.A. While supporting the judgment of the trial court has submitted that in the present case, the common intention on the part of the appellant was evident since both the present appellants were armed with lathies. The deceased was un-armed. He was taken by surprise. The appellants were on their guard, hence as per law laid down in 2006 AIR SCW 6216 : 2007 (57) ACC 392 (SC), (Prakash Vs. State of M.P.), the accused persons were rightly convicted under Section 302 read with Section 34 I.P.C. 27. In AIR 1983 Supreme Court 126 : 1983 (20) ACC 72 (SC), (Maqsoodan and others Vs. State of U.P.), the Apex Court has held that common intention is a question of fact. It is subjective. But it can be inferred from the facts and circumstances. In AIR 1983 Supreme Court 126 : 1983 (20) ACC 72 (SC), (Maqsoodan and others Vs. State of U.P.), the Apex Court has held that common intention is a question of fact. It is subjective. But it can be inferred from the facts and circumstances. In the present case all the accused were related to each other and all of them were armed with deadly weapons. There was an exhortation by one of the accused to kill the deceased. After the occurrence, all the accused persons left together. Thus, the interference by the trial court that there was common intention, was justified. 28. The meaning and connotation of common intention under Section 34 I.P.C. Has been laid down in AIR 2004 Supreme Court 132 : 2003 (47) ACC 1117 (SC), (Parasa Raja Manikyala Rao and another Vs. State of A.P.), in which it has been held as under: - " Section 34 really means that if two or more persons intentionally do a common thing jointly, it is just the same as if each of them had done it individually. It is a well recognised canon of criminal jurisprudence that the Courts cannot distinguish between co-conspirators, nor can they inquire, even if it were possible as to the part taken by each in the crime. Where parties go with a common purpose to execute a common object each and every person becomes responsible for the act of each and every other in execution and furtherance of their common purpose; as the purpose is common, so must be the responsibility. All are guilty of the principal offence, not of abetment only. In combination of this kind a mortal stroke, though given by one of the party, is deemed in the eye of law to have been given by every individual present and abetting. But a party not cognizant of the intention of his companion to commit murder is not liable, though he has joined his companion to do any unlawful act. Leading feature of this section is the element of participation in action. The essence of liability under this section is the existence of a common intention animating the offenders and the participation in a criminal act in furtherance of the common intention. The essence is simultaneous consensus of the minds of persons participating in the criminal action to bring about a particular result. The essence of liability under this section is the existence of a common intention animating the offenders and the participation in a criminal act in furtherance of the common intention. The essence is simultaneous consensus of the minds of persons participating in the criminal action to bring about a particular result. The participation need not in all cases be by physical presence. In offences involving physical violence, normally presence at the scene of offence may be necessary, but such is not the case in respect of other offences when the offence consists of diverse acts which may be done at different times and places. The physical presence at the scene of offence of the offender sought to be rendered liable under this section is not one of the conditions of its applicability in every case. Before a man can be held liable for acts done by another, under the provisions of this section, it must be established that (i) there was common intention in the sense of a pre-arrenged plan between the two, and (ii) 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, this section cannot apply. 'Common intention' implies pre-arranged plan and acting in concert pursuant to the pre-arranged plan. Under this section a pre-concert in the sense of a distinct previous plan is not necessary to be proved. The common intention to bring about a particular result may well develop on the spot as between a number of persons, with reference to the fact of the case and circumstances of the situation. Though common intention may develop on the spot, it must, however, be anterior in point of time to the commission of offence showing a pre-arranged plan and prior concert." "11. The Section really means that if two or more persons intentionally do a common thing jointly, it is just the same as if each of them had done it individually. It is a well recognized canon of criminal jurisprudence that the Courts cannot distinguish between co- conspirators, nor can they inquire, even if it were possible as to the part taken by each in the crime. It is a well recognized canon of criminal jurisprudence that the Courts cannot distinguish between co- conspirators, nor can they inquire, even if it were possible as to the part taken by each in the crime. Where parties go with a common purpose to execute a common object each and every person becomes responsible for the act of each and every other in execution and furtherance of their common purpose; as the purpose is common, so must be the responsibility. All are guilty of the principal offence, not of abetment only. In combination of this kind a mortal stroke, though given by one of the party, is deemed in the eye of law to have been given by every individual present and abetting. But a party not cognizant of the intention of his companion to commit murder is not liable, though he has joined his companion to do an unlawful act. Leading feature of this Section is the element of participation in action. The essence of liability under this Section is the existence of a common intention animating the offenders and the participation in a criminal act in furtherance of the common intention. The essence is simultaneous consensus of the minds of persons participating in the criminal action to bring about a particular result (See Ramaswami Ayyanagar and Ors. v. State of Tamil Nadu ( AIR 1976 SC 2027 ). The participation need not in all cases be by physical presence. In offences involving physical violence, normally presence at the scene of offence may be necessary, but such is not the case in respect of other offences when the offence consists of diverse acts which may be done at different times and places. The physical presence at the scene of offence of the offender sought to be rendered liable under this Section is not one of the conditions of its applicability in every case. Before a man can be held liable for acts done by another, under the provisions of this Section, it must be established that (i) there was common intention in the sense of a pre-arranged plan between the two, and (ii) 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, this Section cannot apply. 12. 'Common intention' implies pre-arranged plan and acting in concert pursuant to the pre-arranged plan. Unless common intention and participation are both present, this Section cannot apply. 12. 'Common intention' implies pre-arranged plan and acting in concert pursuant to the pre-arranged plan. Under this Section a pre-concert in the sense of a distinct previous plan is not necessary to be proved. The common intention to bring about a particular result may well develop on the spot as between a number of persons, with reference to the facts of the case and circumstances of the situation. Though common intention may develop on the spot, it must, however, be anterior in point of time to the commission of offence showing a pre-arranged plan and prior concert. (See Krishna Govind Patil v. State of Maharashtra ( AIR 1963 SC 1413 ). In Amrit Singh and Ors. v. State of Punjab (1972 Crl.L.J. 465 (SC) it has been held that common intention pre-supposes prior concert. Care must be taken not to confuse same or similar intention with common intention; the partition which divides their bonds is often very thin, nevertheless the distinction is real and substantial, and if overlooked will result in miscarriage of justice. To constitute common intention, it is necessary that intention of each one of them be known to the rest of them and shared by them. Undoubtedly, it is a difficult thing to prove even the intention of an individual and, therefore, it is all the more difficult to show the common intention of a group of persons. But however difficult may be the task, the prosecution must lead evidence of facts, circumstances and conduct of the accused from which their common intention can be safely gathered. In Magsogdan and Ors. vs. State of U.P. (AIR 1988 SC 126 : 1983 (20) ACC 72 (SC)) it was observed that prosecution must lead evidence from which the common intention of the accused can be safely gathered. In most cases it has to be inferred from the act, conduct or other relevant circumstances of the case in hand. The totality of the circumstances must be taken into consideration in arriving at a conclusion whether the accused had a common intention to commit offence for which they can be convicted. The facts and circumstances of cases vary and each case has to be decided keeping in view of the facts involved. The totality of the circumstances must be taken into consideration in arriving at a conclusion whether the accused had a common intention to commit offence for which they can be convicted. The facts and circumstances of cases vary and each case has to be decided keeping in view of the facts involved. Whether an act is in furtherance of the common intention is an incident of fact and not of law. In Bhaba Nanda Barma and Ors. v. The State of Assam ( AIR 1977 SC 2252 ) it was observed that prosecution must prove facts to justify an inference that all participants of the acts had shared a common intention to commit the criminal act which was finally committed by one or more of the participants. Mere presence of a person at the time of commission of an offence by his confederates is not, in itself sufficient to bring his case within the purview of Section 34 , unless community of designs is proved against him (See Malkhan and Anr. v. State of Uttar Pradesh ( AIR 1975 SC 12 ). In the Oxford English Dictionary, the word "furtherance" is defined as 'action of helping forward'. Adopting this definition, Russel says that "it indicates some kind of aid or assistance producing an effect in future" and adds that any act may be regarded as done in furtherance of the ultimate felony if it is a step intentionally taken, for the purpose of "effecting that felony. (Russel on Crime 12th Edn. Vol.I pp.487 and 488). In Shankarlal Kacharabhai and Ors. v. The State of Gujarat (AIR 1963 SC 1260) this Court has interpreted the word "furtherance" as 'advancement of promotion'. " 29. In AIR 1977 Supreme Court 2252, (Bhaba Nanda Sarma and others Vs. The State of Assam), it has been laid down as follows: - "To attract the application of S. 34 it must be established beyond any shadow of doubt that the criminal act was done by several persons in furtherance of the common intention of all. In other words, the prosecution must prove facts to justify an inference that all the participants of the act had shared a common intention to commit the criminal act which was finally committed by one or more of the participants." 30. The leading features of Section 34 I.P.C. is participation in action. In other words, the prosecution must prove facts to justify an inference that all the participants of the act had shared a common intention to commit the criminal act which was finally committed by one or more of the participants." 30. The leading features of Section 34 I.P.C. is participation in action. A common intention connotes a meetings of mind to commit an offence and participation in the commission of offence in furtherance of that common intention and in such case application of Section comes in. Participation need not in all cases be by physical presence. The crucial test as to the applicability of constructive liability, under Section 34 is, therefore, to be found in the phrase "in furtherance of the common intention of all". It is thus a pre arranged plan acting in concert pursuant to the pre alleged plan. Thus, common intention to bring about a particular result may well developed on the spot also as between a number of persons with reference to the facts of the case and circumstances of the situation. 31. The accused were charged for substantive offence under Section 302 I.P.C. with the aid of Section 34 I.P.C. Section 34 I.P.C. is intended to cover a situation wherein the accused persons have done something with common intention to constitute a criminal act to get Section 34 attracted. Certain conditions precedent are to be satisfied that must have been done by more than one person. They must have shared a common intention either by omission or commission in effectuating the crime. It is always not necessary that other accused must do a separate act to be responsible for the same criminal act. What is required is that an accused person must share the common intention to commit the act. 32. The Constitution Bench in AIR 1963 SC 174 , Mohan Singh Vs. State of Punjab, while dealing with the scope of 34 I.P.C. has ruled thus " Like Section 149, Section 34 also deals with cases of constructive criminal liability. It provides that where 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. The essential constituent of the vicarious criminal liability prescribed by Section 34 is the existence of common intention. It provides that where 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. The essential constituent of the vicarious criminal liability prescribed by Section 34 is the existence of common intention. If the common intention in question animates the accused persons and if the said common intention leads to the commission of the criminal offence charged, each of the persons sharing the common intention is constructively liable for the criminal act done by one of them. Just as the combination of persons sharing the same common object is one of the features of an unlawful assembly, so the existence of a combination of persons sharing the same common intention is one of the features of Section 34 ." 12. In Suresh and another v. State of U.P., (2001) 3 SCC 673 : 2001 (42) ACC 770 (SC), Thomas, J. opined that to attract Section 34 IPC, two conditions precedent are imperative: - "23. Thus to attract Section 34 IPC two postulates are indispensable: (1) The criminal act (consisting of a series of acts) should have been done, not by one person but more than one person. (2) Doing of every such individual act cumulatively resulting in the commission of criminal offence should have been in furtherance of the common intention of all such persons." 13. In Lallan Rai and others v. State of Bihar, relying upon the dictum laid down in Barendra Kumar Ghosh (2003) 1 SCC 268 and Mohan Singh (supra), this Court opined that the essence of Section 34 is simultaneous consensus of the mind of persons participating in the criminal action to bring about a particular result. It has been stated therein that such consensus can be developed at the spot, but in any case, such a consensus must be present in the commission of the crime itself. 14. In Rotash v. State of Rajasthan (2006) 12 SCC 64 : 2007 (57) ACC 904 (SC), it has been opined that the common intention to commit a crime can be gathered from the totality of the circumstances. In 2010 (10) SCC 259 , Abdul Sayeed Vs. State, the Apex Court observed as under: - "49. 14. In Rotash v. State of Rajasthan (2006) 12 SCC 64 : 2007 (57) ACC 904 (SC), it has been opined that the common intention to commit a crime can be gathered from the totality of the circumstances. In 2010 (10) SCC 259 , Abdul Sayeed Vs. State, the Apex Court observed as under: - "49. Section 34 I.P.C. carves out an exception from general law that a person is responsible for his own act, as it provides that a person can also be held vicariously responsible for the act of others if he has the 'common intention' to commit the offence. The phrase 'common intention' implies a prearranged plan and acting in concert pursuant to the plan. Thus, the common intention must be there prior to the commission of the offence in point of time. The common intention to bring about a particular result may also well develop on the spot as between a number of persons, with reference to the facts of the case and circumstances existing thereto. The common intention under Section 34 IPC is to be understood in a different sense from the 'same intention' or 'similar intention' or 'common object'. The persons having similar intention which is not the result of the prearranged plan cannot be held guilty of the criminal act with the aid of Section 34 IPC. (See Mohan Singh v. State of Punjab.)" 33. In (1972) 4 SCC (N) 42, Amrik Singh Vs. State of Punjab, it has been held as under: - "Ordinarily, a person is responsible for his own act. A person can also be vicariously responsible for the acts of others if he had the common intention to commit the offence. The words "common intention" imply a prearranged plan and acting in concert pursuant to the plan. It must be proved that the criminal act was done in concert pursuant to the prearranged plan. Common intention comes into force prior to the commission of the act in point of time, which need not be a long gap. Under this section a preconcert in the sense of a distinct previous plan is not necessary to be proved. The common intention to bring about a particular result may well develop on the spot as between a number of persons, with reference to the facts of the case and circumstances of the situation. Under this section a preconcert in the sense of a distinct previous plan is not necessary to be proved. The common intention to bring about a particular result may well develop on the spot as between a number of persons, with reference to the facts of the case and circumstances of the situation. Though common intention may develop on the spot, it must, however, be anterior in point of time to the commission of the crime showing a prearranged plan and prior concert. The common intention may develop in course of the fight but there must be clear and unimpeachable evidence to justify that inference. This has been clearly laid down by this Court in Amrik Singh Vs. State of Punjab." 34. The essence of the liability is to be found in the existence of a common intention animating the accused leading to the doing of a criminal act in furtherance of such intention. Undoubtedly, it is difficult to prove even the intention of an individual and, therefore, it is all the more difficult to show the common intention of a group of persons. Therefore, in order to find whether a person is guilty of common intention, it is absolutely necessary to carefully and critically examine the entire evidence on record. 35. Reverting back to the oral evidence, as said earlier, all the accused persons were related and no plausible reason has come forth from the side of the defence as to what the present applicants, namely, Ram Baran and Gajraj armed with lathi were doing on the spot at 4: 30 o'clock in the morning. Specially, when they were accompanying Sadhu and Ram Baran armed with guns. The evidence of the eye witnesses has been critically examined by this Court, which goes to show that all the accused came together and fled away together. Besides, it has been proved by evidence and also admitted in the statement under Section 313 Cr.P.C. that the father of Ram Baran, namely, Sadhu had some differences with the deceased Gajraj accused has also stated in his statement under Section 313 Cr.P.C. that Sadhu was his uncle and due to him, he was implicated. Thus, there is a very valid reason for Ram Baran son of Sadhu and Gajraj nephew of Sadhu to teach the deceased a lesson because earlier the deceased had chopped the nose of Sadhu. Thus, there is a very valid reason for Ram Baran son of Sadhu and Gajraj nephew of Sadhu to teach the deceased a lesson because earlier the deceased had chopped the nose of Sadhu. Thus, we do not perceive any flaw in the analysis and the conclusion arrived at by the learned trial Judge that the accused appellants were guilty of Section 302 read with Section 34 I.P.C. 36. As far as the argument advanced on behalf of counsel for the appellants is concerned that there was no motive for the accused to kill the deceased and even in the prosecution case, no plausible motive has been assigned, the Hon'ble Apex Court in the case of Ranganayaki Vs. State, (2004) 12 SCC 521 : 2004 (50) ACC 768 (SC) has held has under: - "The motive for committing a criminal act is generally a difficult area for the prosecution. One cannot normally see into the mind of another. Motive is in the mind which impels a man to do a particular act. Such impulsion need not necessarily be proportionally grave to do grave crimes. Many murders have been committed without any known or prominent motive. It is quite possible that the aforesaid imputing factor would remain undiscovered." In this connection, following observations of the Hon'ble Supreme Court given in the case of Thaman Kumar vs. State of Union Territory of Chandigarh 2003 (47) ACC 7 (SC) are also relevant: "There is no principle or rule of law that where the prosecution fails to prove the motive for commission of the crime, it must necessarily result in acquittal of the accused. Where the ocular evidence is found to be trust-worthy and reliable and finds corroboration from the medical evidence, finding of guilt can safely be recorded even if the motive for the commission of the crime has not been proved." 37. In Mangaru and others vs. State of U.P., 2008 (62) ACC 40, it has been laid down that motive may be of importance in the cases of circumstantial evidence but in cases of direct evidence, motive looses its value. But the witnesses have categorically stated that the nose of Sadhu, the father of Ram Baran and uncle of Gajraj, was chopped by the deceased. The factum of being related has also been admitted by the accused. But the witnesses have categorically stated that the nose of Sadhu, the father of Ram Baran and uncle of Gajraj, was chopped by the deceased. The factum of being related has also been admitted by the accused. Besides this even in the F.I.R. Itself, it has been mentioned that deceased Bharat had chopped the nose of Sadhu, which case was pending and that was the reason why Sadhu was inimical with the deceased Bharat and was searching for the proper time to kill Bharat due to which Bharat did not go to his village and was working with the informant. 38. Both the witnesses have not been cross-examined on this point. Thus, in the case in hand the motive as set forth in the F.I.R. has been proved by the prosecution witnesses. 39. It has further been submitted on behalf of the accused that the witnesses produced in the case are inter se interested witnesses and are related to each other. Hence, they cannot be relied upon. P.W. 1 Zamirul Hasan is admittedly not related to the deceased. He is said to have been a relative of P.W. 2 Naiem Khan. Naiem Khan has specifically stated that his bua is not married to Zamirul Hasan. Zamirul Hasan has also denied his relationship with Naim. 40. Here the evidence of D.W. 1 Latafat Hussain has to be looked into, who has said that Zamirul Hasan is his cousin, brother-in-law (behnoi) and Naiem is his cousin brother. As far as related witnesses is concerned. 41. As far as related and interested witness is concerned, in the case of Dalip Singh and others vs. State of Punjab ( AIR 1953 SC 364 ), it has been laid down as under by the Hon'ble Apex Court: - "A witness is normally to be considered independent unless he or she springs from sources which are likely to be tainted and unless the witness has cause, such as enmity against the accused, to wish to implicate him falsely. Ordinarily a close relation would be the last to screen the real culprit and falsely implicate an innocent person. Ordinarily a close relation would be the last to screen the real culprit and falsely implicate an innocent person. It is true, when feelings run high and there is personal cause for enmity, that there is tendency to drag in an innocent person against whom a witness has a grudge along with the guilty, but foundation must be laid for such a criticism and the mere fact of relationship far from being a foundation is often a sure guarantee of truth. However, we are not attempting any sweeping generalization. Each case must be judged on its own facts." 42. Observations of the Hon'ble Apex Court Masalti and others vs. State of U.P., A.I.R. 1965 SC 202, are worth mentioning: - "But it would, we think, be unreasonable to contend that evidence given by witnesses should be discarded only on the ground that it is evidence of partisan or interested witnesses. The mechanical rejection of such evidence on the sole ground that it is partisan would invariably lead to failure of justice. No hard and fast rule can be laid down as to how such evidence should be appreciated. Judicial approach has to be cautions in dealing with such evidence, but the plea that such evidence should be rejected because it is partisan cannot be accepted as correct." 43. The above decision has been followed in Guli Chand and others vs. State of Rajasthan 1974 (3) SCC 698 , in which Vadivelu Thevar vs. State of Madras AIR 1975 SC 614 was also relied upon. The following observations were made by the Hon'ble Apex Court in Israr vs. State of U.P. [2005(51) ACC 113] in para-12 of the judgement are also important: - ".... Relationship is not a factor to affect credibility of a witness. It is more often than not that a relation would not conceal the actual culprit and make allegations against an innocent person. Foundation has to be laid if plea of false implication is made. In such cases, the Court has to adopt a careful approach and analyze evidence to find out whether it is cogent and credible.: 44. The above position has been highlighted again in the case of Galivenkataiah vs. State of A.P. 2008 (60) ACC 370, in which reference has been made to some other cases also. 45. In such cases, the Court has to adopt a careful approach and analyze evidence to find out whether it is cogent and credible.: 44. The above position has been highlighted again in the case of Galivenkataiah vs. State of A.P. 2008 (60) ACC 370, in which reference has been made to some other cases also. 45. The Hon'ble Supreme Court in the case of State of Andhra Pradesh vs. S. Rayappa and others 2006 (1) AAR 259 (SC) : 2006 (54) ACC 829 (SC) dealing the evidence of related/interested witnesses has observed as under: "...... By now it is a well-established principle of law that testimony of a witness otherwise inspiring confidence cannot be discarded on the ground that he being a relation of the deceased is an interested witness. A close relative who is a very natural witness cannot be termed as an interested witness. The term interested postulates that the person concerned must have some direct interest in seeing the accused person being convicted somehow or the other either because of animosity or some other reasons.: 46. In para-8 their Lordships have further observed: " The relative witness is not necessarily an interested witness. On the other hand, being a close relation to the deceased, they will try to prosecute the real culprit by stating the truth. There is no reason as to why a close relative will implicate and depose falsely against somebody and screen the real culprit to escape unpunished. The only requirement is that the testimony of the relative witnesses should be examined cautiously..." 47. The concept of interested witness essentially must carry with it the element of unfairness and undue intention to falsely implicate the accused. It is only when these elements are present, and statement of the witness is unworthy of credence that the Court would examine the possibility of discarding such statements. But where the presence of the eye-witnesses is proved to be natural and their statements are nothing but truthful disclosure of actual facts leading to the occurrence and the occurrence itself, it is not permissible for the Court to discard the statements of such related or friendly witnesses." 48. Thus, admittedly, both these witnesses are not related to the deceased. Even if they are related to each other, there is nothing on record to show that the complainant Zamirul Hasan or Naiem had inimical terms with the accused. Thus, admittedly, both these witnesses are not related to the deceased. Even if they are related to each other, there is nothing on record to show that the complainant Zamirul Hasan or Naiem had inimical terms with the accused. No reason of false implication of the accused has come forth. Hence, there is not even a whisper of false implication as against Zamirul Hasan is concerned because he had nothing to do with the deceased except that the deceased was working with him. 49. Counsel for the appellants has placed reliance on 2009 (16) SCC 337 , K.M. Ravi and others Vs. State of Karnataka, in which it has been held that the rejection of the materials on the ground of relationship is unwarranted. The evidence of interse related witnesses have to be scrutinized with care and caution. But there is no ground that the evidence of witnesses related inter se should be thrown out on this ground alone. 50. Another argument advanced on behalf of the appellants by the counsel is that the accused were not questioned on the point of common intention in the statement recorded under Section 313 Cr.P.C. The learned counsel for the appellants could not show on record as to what prejudice was caused to the accused although the accused were asked whether all of them were "meli" and were related to each other or not. Besides no cross-examination of the witnesses was done by the defence on this point. 51. In 1987 Cr.L.J. 1320, Kalipado Gope and others Vs. State of Bihar, it has been laid down that it is necessary that all the material probabilities and all reasonable inferences such as might arise from the evidence, must be exhausted and put to the accused persons while recording their statement under Section 313 of the Cr.P.C. The onus is upon the accused persons to prove that by reasons of his not having been examined as required by Section 313 of the Code of Criminal Procedure he has been prejudiced. The same principle of law has been laid down by the Apex Court in (2004) 7 SCC 502 : 2004 (50) ACC 321 (SC), Naval Kishore Singh Vs. State of Bihar. 52. In (1999) SCC 125, Janak Yadav and others Vs. The same principle of law has been laid down by the Apex Court in (2004) 7 SCC 502 : 2004 (50) ACC 321 (SC), Naval Kishore Singh Vs. State of Bihar. 52. In (1999) SCC 125, Janak Yadav and others Vs. State of Bihar, it has been laid down that Section 313 Cr.P.C. prescribes a procedural safeguard for an accused facing the trial to be granted an opportunity to explain the facts and circumstances appearing against him in the prosecution evidence. As said earlier, the learned counsel for the accused appellants could not point out any prejudice caused to the appellants in the matter. 53. Perusal of the record shows that both the witnesses of fact produced by the prosecution, namely, P.W. 1 Zamirul Hasan and P.W. 2 Naiem were not questioned on the point of presence of the present applicants, namely, Gajraj and Ram Baran. Thus, even on the basis of the record, it is clear that the accused were not prejudiced in the case. 54. In view of what has been stated above and on the basis of evidence on record, it is concluded that the prosecution has brought home the guilt of the accused appellants beyond reasonable doubt and the accused appellants have been rightly convicted. Consequently, the appeal is liable to be dismissed. 55. Accordingly, the appeal is dismissed. The accused appellants are on bail. Their bail bonds are cancelled and sureties are discharged. 56. Let the certified copy of the Judgment be sent forth with to the trial court for ensuring compliance which should be reported to the court within eight weeks. The trial court shall take them into custody to take all steps for execution of the sentence.