JUDGMENT Hon’ble Bharat Bhushan, J.—This criminal appeal is directed against the judgement and order dated 25.8.1981 passed by learned IV Additional District and Sessions Judge, Agra in S.T. No. 78 of 1981, whereby the appellant Chhotey Lal was convicted for offence under Sections 307 Indian Penal Code, 1860 (in short IPC) and appellants Bhagwan Das, Jogendra and Munna Lal were convicted under Section 307 read with Section 34 IPC and consequently, they were sentenced to undergo rigorous imprisonment for five years and fine of Rs. 1000/- each with default stipulation. 2. Perusal of record indicates that the appellant No. 1 Chhotey Lal and appellant No. 4 Munna Lal have died during the pendency of the present criminal appeal. Hence their appeal stand abated. This Court has heard the criminal appeal of the surviving appellants Bhagwan Das and Jogendra. 3. Heard Sri Satish Trivedi, learned Senior Advocate assisted by Mr. A.K. Pandey, Advocate, learned counsel appearing for the surviving appellants Bhagwan Das and Jogendra and learned AGA and perused the material on record. 4. In order to find out any scope for interference by this Court into the conviction order recorded by the learned trial Court, it would be appropriate to discuss the prosecution story as unfolded before the learned trial Court. 5. The prosecution story is that appellants were standing near betel shop of Mahesh, P.W-6 on 12.11.2008 at about 11.45 a.m. Injured Ganesh Dutt was going towards his warehouse (godown). Suddenly the accused Chhotey Lal opened fire upon Ganesh Dutt at the instigation of accused Munna. Injured Ganesh Dutt saved himself from the clutches of the accused persons by hiding in the house of one Raghuvir Saran. 6. Report of the incident was lodged on the same day i.e. on 12.11.1980 at about 11.30 a.m. at P.S. Firozabad Uttar on the basis of the telephonic messages given by one P. K. Tailang, (P.W.-1). A case vide Crime No. 594 under Section 307 IPC was registered at P.S. Firozabad North. Investigation was conducted by S.I. Ujagar Singh, P.W.-7. Investigating Officer recorded the statements of the injured and the witnesses and prepared the site plan (Ex-Ka 6). A case vide Crime No. 594 under Section 307 IPC was registered at P.S. Firozabad North. Investigation was conducted by S.I. Ujagar Singh, P.W.-7. Investigating Officer recorded the statements of the injured and the witnesses and prepared the site plan (Ex-Ka 6). The injured Ganesh Dutt P.W-3 was medically examined at S.N.M. Hospital, Firozabad at 11.55 a.m. The Doctor V.K. Misuriya, Medical Officer (P.W.-5) prepared the injury report (Ex-Ka3) and found the following injury on his person: “Gun shot wound of entry 1 cm X 1 cm X Cavity Deep (fresh bleeding present) on the right side back of chest 9 cm below the inferior angle of scapula. Blackening present.” 7. After completing the investigation the I.O. submitted the charge-sheet (Ex-Ka-9) against the accused appellants under Section 307 IPC on 26.11.1980. The case was thereafter committed for trial. Accused appellant Chhotey Lal was charged under Section 307 IPC and the appellants Bhagwan Das, Jogendra Kumar and Munna were charged under Section 307 read with Section 34 IPC by trial Court. 8. Prosecution examined seven witnesses - P.W.-1 P.K. Tailang, (first informer), P.W.-2 Ulfat Singh, P.W-3 Ganesh Dutt (injured), P.W-4 Dr. C.K. Gupta, surgeon at S. N. Medical College, Agra, P.W-5 Dr. V.K. Misuriya, P.W-6 Mahesh Chandra and P.W-7 Sub Inspector Ujagar Singh. The defence of the accused was that of false implication in connivance with the police and the injured. Trial Court convicted the appellants and sentenced them as aforesaid. This judgement is under challenge in this appeal. 9. Learned counsel for the surviving appellants has assailed the impugned judgement of conviction on the ground that the Court below has not assessed the evidence adduced before it in its correct perspective. He further submitted that the FIR of the incident did not contain any details of the occurrence and the names of the accused persons and the prosecution has miserably failed to bring home the alleged guilt of the appellants by trustworthy evidence. 10. Learned AGA on the contrary submitted that the learned Trial Court had rightly relied upon the testimony of injured witness corroborated by the evidence of independent eye-witnesses. Consequently, he contended that there is no merit in the appeal, as the prosecution has successfully proved the appellants to be guilty of the aforesaid offences, hence the appeal is liable to be dismissed. 11. Consequently, he contended that there is no merit in the appeal, as the prosecution has successfully proved the appellants to be guilty of the aforesaid offences, hence the appeal is liable to be dismissed. 11. Perusal of the impugned judgement discloses that the case of the prosecution is essentially based upon the testimony of injured witness namely Ganesh Dutt P.W.-3 coupled with eye-witness accounts given by PW-1 Ulfat Singh, PW-6 Mahesh and medical evidence. The deaths of main accused appellants Chhotey Lal and Munna have left this Court with the appeals of surviving appellants No. 2 and 3 namely Bhagwan Das and Jogendra, who have been roped in with the aid of Section 34 IPC. 12. Before proceeding further to examine the correctness of the submissions made herein above and judging the guilt as the innocence of the surviving accused, it would be appropriate to have a synopsized discussion of material evidence. 13. Bare perusal of the prosecution evidence would reveal that the fire-arm shot was allegedly fired by the appellant Chhotey Lal on the stated instigation of appellant Munna. Medical report also indicates that the injured Ganesh Dutt sustained only one gun shot injury. Author of that gun shot injury has been specified in the statement of injured Ganesh Dutt recorded by the Additional City Magistrate, Agra as dying declaration. Same statement was later on made by the injured during course of trial as P.W.-3. There are some discrepancies in the statement recorded by Magistrate in expectation of death of injured and the statement recorded during the course of trial. Prosecution story is that Ganesh Dutt was shot by the assailants and he was initially taken to the hospital at Firozabad, thereafter, he was taken to Agra. In Agra the statement of injured Ganesh Dutt was recorded by the Additional City Magistrate in expectation of his death. Obviously, this statement cannot be treated as dying declaration and therefore is not admissible under Section 32 of the Indian Evidence Act. It is evident that where the maker of the statement is not only alive but has also deposed in the trial, his statement is not admissible under Section 32 of the Indian Evidence Act. However, this statement is admissible under Section 157 of the Indian Evidence Act and can be used for the purpose of corroboration or contradiction. It is evident that where the maker of the statement is not only alive but has also deposed in the trial, his statement is not admissible under Section 32 of the Indian Evidence Act. However, this statement is admissible under Section 157 of the Indian Evidence Act and can be used for the purpose of corroboration or contradiction. Such statement would be treated in evidence as previous statement of the maker. Statement of injured, therefore, is not substantive piece of evidence and the same could only be used for the limited purpose during the course of trial. Such previous statement of maker can be used for corroboration under Section 157 of the Indian Evidence Act or for contradiction under Section 145 of the same Act. 14. The statement of injured Ganesh Dutt was recorded by the Additional City Magistrate on 12.11.1980 and a certificate was issued by the Doctor saying that the patient was in fit mental condition to give relevant statement. His mental condition was also certified as sound. This statement, given in sound mental condition, refers that he was shot by appellant Chhotey son of Tulsi Ram after expressing his indignation about haughty and overbearing attitude of injured. He further mentions that Chhotey was accompanied by other accused persons namely Munna, Bhagwan Das and Jogendra but their roles were not described. No arms were shown in their hands. Infact no overt act was attributed to other accused appellants in this statement. Thereafter, during course of trial injured Ganesh Dutt made certain improvement in the prosecution version. In his deposition before the trial Court, he added that appellant Munna instigated and exhorted the appellant Chhotey Lal to kill him and thereafter the appellant Chhotey whipped out his pistol and shot him. Even in this statement no specific role was attributed to surviving appellants No. 2 and 3 namely Bhagwan Das and Jogendra. But he added that when he after being hit by the bullet ran away from the spot, the surviving appellants alongwith Late appellant Chhotey and Munna ran after him and all of them were holding Guns but injured managed to enter into a house of one Raghuveer Saran and bolted the door from inside. 15. Learned counsel for the appellants has pointed out that the prosecution story initially did not delineate the role of surviving appellants namely Bhagwan Das and Jogendra kumar. 15. Learned counsel for the appellants has pointed out that the prosecution story initially did not delineate the role of surviving appellants namely Bhagwan Das and Jogendra kumar. No specific role was attributed to these surviving appellants. 16. In order to appreciate the arguments of learned counsel for the surviving appellants, it would be proper to go through the depositions. P.W.-1 P.K. Tailang obviously is not an eye-witness of the incident. He has stated that he was inside in his house at the time of incident and a stranger was running past his house shouting that Ganesh Dutt had been shot by some one, therefore he communicated this information on telephone to the police. P.W.-1 P.K. Tailang, reached the place of occurrence after the incident but he did not found either the appellants or the injured on the place of occurrence. All his knowledge is based upon the information furnished by the others. 17. P.W.-2 Ulfat was neither mentioned by the P.W.-1 P.K. Tailang, in his telephonic information to the police nor his name mentioned by the injured Ganesh Dutt in his previous statement (Ex-Ka-2) but P.K. Tailang P.W.-1, did mention his name in his testimony during the course of trial. In his deposition, he had specifically stated that when he reached the spot, Ulfat Nishad and Shanker Lal were also present there and they informed him that appellant Chhotey Lal had shot Ganesh Dutt and three others namely Munna, Bhagwan Das and Jogendra were also present on the place of occurrence. In the circumstances, the statement of P.W.-2 Ulfat becomes important. 18. P.W.-2 Ulfat deposed that four appellants namely Chhotey Lal, Munna, Bhagwan Das and Jogendra were present near Tailang Chowk, Firozabad. Injured Ganesh Dutt arrived there. Appellant Chhotey shot Ganesh Dutt by fire-arm weapon on the instigation of Late appellant Munna. Ganesh Dutt started running and all the four appellants ran after him. Now, in this statement, during examination in chief, no roles were attributed to surviving appellants Bhagwan Das and Jogendra. No arms were shown in their hands. The role of surviving appellants Bhagwan Das and Jogendra as described by P.W.-2 Ulfat merely was that they were present at the place of occurrence and after the discharge of fire-arm weapon by accused Chhotey they also ran alongwith other persons. He then made improvement in the prosecution version. No arms were shown in their hands. The role of surviving appellants Bhagwan Das and Jogendra as described by P.W.-2 Ulfat merely was that they were present at the place of occurrence and after the discharge of fire-arm weapon by accused Chhotey they also ran alongwith other persons. He then made improvement in the prosecution version. He stated that he had seen revolver in the hands of accused but he did not specify a particular person who was holding the revolver. Surprisingly, he admitted that just one hour prior to the incident he was talking and smoking with all accused persons and none of them were carrying any weapon at that point of time. When he came to the betel shop of Mahesh Chandra, P.W.-6 appellants again arrived at that place. Injured Ganesh also arrived there. Appellant Munna instigated the appellant Chhotey Lal who fired a shot upon him. P.W.-2 Ulfat made a significant admission saying that only single fire-arm weapon was used that too only once. He specifically asserted that no other weapon was fired by appellants even at the time of chasing injured Ganesh Dutt. He has added another version to the prosecution story by saying that the appellant Chhotey was holding two fire-arm weapons one in each hand but used only one fire-arm weapon of his right hand. A careful perusal of his statement would reveal that even this witness has not levelled any specific allegations against the surviving appellants Bhagwan Das and Jogendra. Initial prosecution version does not mention any weapon in the hands of appellants Bhagwan Das and Jogendra. It is true that later on some improvements were made in the prosecution version but appellants Bhagwan Das and Jogendra neither instigated other accused persons to open fire upon injured Ganesh Dutt nor used any fire-arm weapon. Infact the evidence of P.W.-2 Ulfat is silent about the specific role of appellants Bhagwan Das and Jogendra. 19. Similarly, the injured Ganesh Dutt P.W.3. has also changed the prosecution story enunciated initially. In his earlier statement made to the City Magistrate only the role of appellant Chhotey Lal was specified but during course of trial he reiterated version given by P.W.-2 Ulfat saying that Late appellant Munna instigated and appellant Chhotey Lal used fire-arm weapon by firing a shot upon him by his pistol. has also changed the prosecution story enunciated initially. In his earlier statement made to the City Magistrate only the role of appellant Chhotey Lal was specified but during course of trial he reiterated version given by P.W.-2 Ulfat saying that Late appellant Munna instigated and appellant Chhotey Lal used fire-arm weapon by firing a shot upon him by his pistol. Careful examination of statement of injured Ganesh Dutt would reveal that he had merely shown presence of surviving appellants Bhagwan Das and Jogendra on the place of occurence. It also shows that once he ran after sustaining the fire-arm injury from the shot fired by appellant Chhotey, all four accused persons started chasing him and then he made new disclosure saying that all of them were armed with fire-arms. He has explained the discrepancy between his statement during the course of trial and his previous statement (Ex-Ka-2) recorded by the City Magistrate, Agra by saying that he was not in fit condition at the time of his earlier statement, therefore, he could not give complete facts. This is contrary to the certificate given by doctor at the time of recording of previous statement. As stated earlier the doctor certified that Ganesh Dutt, the injured was in a fit condition to give statement and his mental condition was sound. In any case, this major discrepancy is staring from record. In his previous statement, the time of occurrence was shown as 10.30 a.m. while as P.W.-3 testified that the incident occurred after 11.15 a.m. Even if, the previous statement of Ganesh Dutt is ignored, it is apparent that his statement recorded by the trial Court does not attribute any specific role in the attack to the surviving appellants Bhagwan Das and Jogendra. 20. Similarly, testimony of Mahesh Chandra, P.W.-6 the betel shop owner is also not very helpful to the prosecution. This witness has stated that he went to the place of occurrence after hearing the noise of fire-arm weapon. When he reached the place of occurrence he saw that appellant Chhotey, Jogendra, Munna and one other person. Appellant Chhotey Lal was holding single pistol. He has specifically testified that he did not saw two fire-arms in the hands of appellant Chhotey. In fact he did not witness the incident in which appellant Chhotey had allegedly fired shot upon the injured Ganesh Dutt. Appellant Chhotey Lal was holding single pistol. He has specifically testified that he did not saw two fire-arms in the hands of appellant Chhotey. In fact he did not witness the incident in which appellant Chhotey had allegedly fired shot upon the injured Ganesh Dutt. He has not made any averments regarding the role of surviving appellants Jogendra and Bhagwan Das. He has not indicated use of any weapon by any other person including surviving appellants. He has stated that when he reached the spot, surviving appellants Bhagwan Das and Jogendra were running away from the spot. No weapons have been mentioned by this witness. It is pertinent to point out that this witness owns a betel shop at the place of occurrence, therefore, his presence at the spot is natural. He has specifically stated that he gathered information from other person that appellant Chhotey Lal had shot Ganesh Dutt. But he did found that three persons were present at the spot namely the appellants Chhotey Lal, Munna and Jogendra. He has not mentioned the name of appellant Bhagwan Das and he has also not indicated possession of any weapon by surviving appellants Bhagwan Das and Jogendra. 21. Prosecution evidence does not demonstrate any participation of surviving appellants Bhagwan Das and Jogendra in the crime. They could only be convicted for the said incident with the help of Section 34 IPC. 22. Section 34 IPC provides that when any criminal act is done by several persons in furtherance of common intention of all, each of such person is liable for that act in the same manner as if, it were done by him alone. However, it is essential for the application of Section 34 IPC that a person who aids commission of crime must be physically present at the actual commission of crime for the purpose of facilitation or promoting the offence, commission of which is aimed of by all person involved. The essence of Section 34 IPC is simultaneous meeting of minds of persons participating in the criminal act to bring about the particular result. Can a person be convicted merely for his physical presence at the place of occurrence with the aid of Section 34 IPC? I am afraid, the answer must be No. Physical presence is necessary but prior meeting of mind is equally necessary. Can a person be convicted merely for his physical presence at the place of occurrence with the aid of Section 34 IPC? I am afraid, the answer must be No. Physical presence is necessary but prior meeting of mind is equally necessary. It is necessary to demonstrate the actual physical presence of person involved at the place of occurrence but promotion and facilitation of the crime are also required for convicting a person with the aid of Section 34 IPC. Vicarious liability recognised under Section 34 IPC is the rule of evidence and does not create a substantive offence. Section gives statutory recognition to the principle that if more than two persons intentionally do a thing jointly, it is to be to treated as if each of them had done it individually. The very definition of Section 34 IPC pre-supposes prior meeting of minds which requires prearranged plan of all accused participating in an offence. 23. If this Court accepts the prosecution evidence despite the existence of significant discrepancies even then merely the physical presence of all appellants can be demonstrated. But the physical presence of all accused persons, by itself is not sufficient to convict all persons with the aid of Section 34 IPC. A prior meeting of minds; a pre arranged plan or some sort of facilitation need to be established for the use of Section 34 IPC. 24. In the instant case, the eye-witness account has merely disclosed that surviving appellants Bhagwan Das and Jogendra were present alongwith assailant Chhotey and instigator Munna. Initially only their presence was shown. Later on significant improvements were made in the prosecution story and all appellants were shown to have been armed with fire-arm weapons but only one shot was fired by the single person. If appellant Munna was in possession of fire-arm weapon, there was no need for him to instigate the appellant Chhotey Lal. The appellant Munna could have used fire-arm weapon himself. As far as surviving appellants Bhagwan Das and Jogendra are concerned they did not use any fire-arm weapons despite the claim of prosecution that they were in possession of such weapons. It is the claim of the prosecution that these surviving appellants chased the injured Ganesh Dutt for quite a long distance and they were holding fire-arms in their hands but they did not use any fire-arm weapons in the incident or in chase. It is the claim of the prosecution that these surviving appellants chased the injured Ganesh Dutt for quite a long distance and they were holding fire-arms in their hands but they did not use any fire-arm weapons in the incident or in chase. In the initial incident in which only Ganesh Dutt is said to have been injured, only one person namely Late Chhotey Lal was accused of using fire-arm weapon. Even Munna did not use any fire-arm weapon. At that point of time no weapon was shown in the hands of surviving appellants Bhagwan Das and Jogendra. When Ganesh Dutt was running away from the spot all appellants allegedly chased him with guns in their hands for some distance but none of the appellants used any weapon at the time of this chase. In fact no shots were fired in this chase. 25. I have carefully examined all materials on record. It is apparent that there is no evidence of prior meeting of minds for conviction of surviving appellants. No satisfactory and credible evidence is available for implication of surviving appellants Bhagwan Das and Jogendra. Injured Ganesh Dutt himself conceded during his testimony that allegation of possession of fire-arm weapon against all the four person had been stated by him for the first time in trial Court. In fact the Investigating Officer has also testified that he was not informed that all four accused persons were holding fire-arm weapon. He was also not informed by any witness that appellant Chhotey Lal was holding two revolver in each of his hand. This significant contradiction between the statement of Investigating Officer and eye-witness account of other witnesses has not been explained by the prosecution. 26. It is evident that there is no evidence to demonstrate that there was a pre arranged plan among all four accused persons and also there was any prior meeting of minds between them. Surviving appellants did not use any fire-arm nor instigated or threatened the injured Ganesh Dutt. They were simply present on the spot and mere presence on the spot would not prompt the use of Section 34 IPC to convict the appellants Jogendra and Bhagwan Das. 27. For the reasons stated above, the impugned order of conviction cannot be sustained in law and is liable to be set aside. The appeal of surviving appellants Jogendra and Bhagwan Das is allowed. 27. For the reasons stated above, the impugned order of conviction cannot be sustained in law and is liable to be set aside. The appeal of surviving appellants Jogendra and Bhagwan Das is allowed. The conviction and sentence dated 25.8.1981 entered into by the trial Court is hereby set-aside. The surviving appellants Jogendra Kumar and Bhagwan Das, who are on bail, need not to surrender. Bail bonds are cancelled and sureties are discharged. ——————