JUDGMENT : (Delivered by Hon'ble Pratyush Kumar, J.) State of U.P. has filed Govt. Appeal No.952 of 1985, State of U.P. Vs. Karan Jit Singh alias Ladi and others, under section 378, Cr.P.C. whereby validity of judgment and order dated 12.12.1984 passed by Shri Uma Shankar Gupta, District and Sessions Judge, Bareilly in S.T. No.37 of 1984 has been challenged. By the impugned judgment and order respondent/accused Karan Jit Singh was acquitted of the offences punishable under sections 302/34, 307/34, 323/34, IPC whereas respondent nos.2 & 3 Smt. Sheelwanti and Smt. Bhagwant Kaur were acquitted of the offences punishable under sections 302/34 and 307/34, IPC. though these two respondents were convicted under section 323, IPC and sentenced to pay Rs.200/- each, failing which they were directed to suffer one month's rigorous imprisonment. Criminal Appeal No.3250 of 1984 has been directed against the same judgment and order dated 12.12.1984 whereby the accused-appellant Balwant Singh was convicted under sections 302/307/323, IPC and sentenced to undergo imprisonment for life, 7 years R.I. and a fine of Rs.200/- and in default further to undergo one month's R.I. respectively. Rest two appellants were convicted under Section 323, IPC and sentenced to pay a fine of Rs.200/- each and in default thereof to undergo one month's R.I. At the very outset, it would be appropriate to put on record that the accused Karanjeet Singh alias Ladi, Smt. Sheelwanti, wife of Balwant Singh, and Balwant Singh have all died which stands recorded in our order dated 20.3.2015 passed on the application of Bhagwant Kaur dated 20.3.2015 moved through Sri Shiv Shanker Gupta, the learned amicus curiae, which facts have not been disputed by the learned Addl. Government Advocate. It may be placed on the record that Balwant Singh died in September 1993, Karanjeet Singh alias Ladi died on 2.3.1993 and Smt. Sheelwant died in August, 1993. In the aforesaid background, the appeals stand abated against the aforesaid accused who have died. Consequently, the appeal only on behalf of Bhagwant Kaur and against her by the State survives. Since both the appeals arise out of the same judgment and order dated 12.12.1984 delivered in S.T. No.37 of 1984, we propose to dispose of both the appeals by a common judgment. Consequently, the appeal only on behalf of Bhagwant Kaur and against her by the State survives. Since both the appeals arise out of the same judgment and order dated 12.12.1984 delivered in S.T. No.37 of 1984, we propose to dispose of both the appeals by a common judgment. According to prosecution story, Smt. Vidyawanti, wife of the deceased Pritam Singh and mother of injured Avatar Singh, resident of village Badshahnagar, P.S. C.B. Ganj, District Bareilly gave an FIR to the Station Officer of P.S. concerned stated therein that on 30.10.1982 at about 5 p.m. accused Sheelwanti and Bhagwant Kaur had an altercation with the deceased Pritam Singh, who was not permitting them to irrigate their field by taking water through nali passing through his khet. Sheelwanti started to strike the pumping set, of deceased Pritam Singh, installed there with iron handle. Accused Balwant Singh, husband of Sheelwanti and father of Bhagwant Kaur arrived there in the meantime. The altercation turned into scuffle between them, Sheelwanti struck handle on the head of Pritam Singh, Balwant Singh and Bhagwant Kaur also beat Pritam Singh, who was defending himself by lathi. Avatar Singh with his brother-in-law Dilip Singh and servant Hari Singh, working in a nearby field also reached there. Accused Karan Jit Singh alias Ladi came there armed with double barrel gun with belt of cartridges and handed them over to his father, accused Balwant Singh. On the exhortation of his son Karan Jit Singh alias Ladi, wife Sheelwanti and daughter Bhagwant Kaur, Balwant Singh fired twice on deceased Pritam Singh. In the firing along with Pritam Singh, Avatar Singh was also injured. Balwant Singh again fired on her son. Wife of Karan Jit Singh alias Ladi, Jasvir Kaur came to the rescue of the injured and the first informant. Incident was seen by her servant Hari Singh Nepali, Dilip Singh. Her husband Pritam Singh died due to gun shot injuries. Vidyawanti took her injured son on cart and went to police station. On her way she got FIR written by Om Prakash, Chowkidar. On this first information, case crime no.20A, under sections 302, 307, 109 was registered. Spot was inspected by the Investigating Officer. First informant took her son Avatar Singh in an injured state from police station to District Hospital where the injured was examined and treated. On her way she got FIR written by Om Prakash, Chowkidar. On this first information, case crime no.20A, under sections 302, 307, 109 was registered. Spot was inspected by the Investigating Officer. First informant took her son Avatar Singh in an injured state from police station to District Hospital where the injured was examined and treated. Investigating Officer got the inquest report prepared, arrested the accused persons, interrogated the witnesses, recovered two discharged cartridges, took sample of blood stained earth and unstained earth and sealed them in separate packets. DBBL gun and belt containing 12 live cartridges were deposited at the police station on 24.11.1982 allegedly belonging to Balwant Singh. Post-mortem on the dead body of Pritam Singh was conducted. During post-mortem on the dead body of Pritam Singh following ante mortem injuries were found:- 1.Abraded contusion 2 cm. X 1 cm. on right side forehead 1 cm. above right eye-brow. 2.Two gun-shot wounds of entry 2 cm. apart on the back of right shoulder joint- Average diameter 0.4 cm. x skin deep. Margins inverted, ragged. 3.9 gun shot wounds of entry in an area 16 cm x 6 cm on the back and middle aspect of right arm and elbow joint. Average diameter 0.4 cm. x skin x muscle deep. Margins inverted, ragged. 4.Gunshot wound of entry 0.4 cm. in diameter on the entro-medial aspect of right forearm 8 cm. above wrist joint. Margins ragged and inverted. 5.Multiple gunshot wounds of entry in an area of 60 cm. x 30 cm. on right side back of chest and temporal region and whole of buttock and upper part of right thigh. Average area 0.4 cm. x muscle, skin and chest and abdomen cavity deep. 6.Two abrasions 0.5 cm. x 0.4 cm., 4 cm. apart on right side of abdomen. (Vide post mortem report Ex-K1, proved by Dr. K.S. Tiwari, PW-2) Injured Avtar Singh son of the deceased was medically examined in the District Hospital at 9.20 p.m. on 30.10.1982. On his person the following injuries have been found and recorded in the injury report. After investigation charge sheet was submitted against all the four accused. 1.Multiple gunshot wounds of entry in an area of 32 cm. x 30 cm. on back of right chest and back of shoulder and right upper arm, measuring 0.2 cm. x 0.2 cm. to 0.5 cm. x 0.5 cm. x 0.5 cm. After investigation charge sheet was submitted against all the four accused. 1.Multiple gunshot wounds of entry in an area of 32 cm. x 30 cm. on back of right chest and back of shoulder and right upper arm, measuring 0.2 cm. x 0.2 cm. to 0.5 cm. x 0.5 cm. x 0.5 cm. 2.Multiple gunshot wounds of entry in an area of 26 cm. x 20 cm. on front of whole chest, abdomen upper part, front of neck (right), measuring 0.2 cm. x 0.2 cm. to 0.5 cm. to 0.3 cm. 3.Multiple gunshot wounds of entry in an area of 18 cm. x 12 cm. on left side and upper part of left thigh. (Vide injury report Ex Ka-4, proved by Dr. S.C. Gupta, PW-4) At this juncture we would also like to mention that on 30.10.1982 at 6.10 p.m. at police station C.B. Ganj accused Balwant Singh also lodged an FIR, registered as case crime no.20, accompanied by injured Sheelwanti, Bhagwant Kaur and Jasbir Kaur riding on a tractor. In his report he had stated that inter alia on that day he had gone to Bareilly on a motorcycle, he came back to his Jhala when it was dark, he saw Pritam Singh beating Sheelwanti and Bhagwant Kaur with lathies, on his intervention he was also beaten with lathi, meantime Jasvir Kaur arrived there. Avatar Singh fired a gun shot on him, which hit Jasvir Kaur, villagers living nearby hearing the hue and cry, thinking dacoity was being committed, came there discharging their firearms, in that firing Pritam Singh and Avatar Singh sustained injuries. V.P. Tyagi, PW-5 investigated this version also and found it false and submitted a closure report. Balwant Singh, appellant no.1 in criminal appeal was charged for committing officens punishable under sections 302, 307, IPC. Respondent nos.1 to 3 of Govt. Appeal, Karan Jit Singh, Balwant Kaur and Smt. Sheelwanti were charged for committing offences punishable under sections 302/34, 307/34 and 323/34, IPC separately. All the accused pleaded not guilty. In support of the charges on behalf of the prosecution Avtar Singh, PW-1, Dr. K.S. Tiwari, PW-2, Smt. Vidyawanti, PW-3, Dr. S.C. Gupta, PW-4, Ved Prakash Tyagi, PW-5, Constable Mihilal, PW-6, Dr. C.P. Srivastava, PW-7 were examined. All the accused pleaded not guilty. In support of the charges on behalf of the prosecution Avtar Singh, PW-1, Dr. K.S. Tiwari, PW-2, Smt. Vidyawanti, PW-3, Dr. S.C. Gupta, PW-4, Ved Prakash Tyagi, PW-5, Constable Mihilal, PW-6, Dr. C.P. Srivastava, PW-7 were examined. Statements of the accused were recorded under Sections 313, Cr.P.C. All the accused denied the prosecution story and stated that they were ignorant about the registration of the FIR against them and post mortem conducted on the body of the deceased Pritam Singh. According to them, recovery of empty cartridges was fictitious. Gun and cartridges were taken from their house. They further stated cross version of the incident, according to which Sheelwanti and Balwant Kaur were beaten by Pritam Singh. When he was asked not to do so, Balwant Singh was also beaten by Pritam Singh by lathi. Kunti alias Avatar Singh fired on him, which hit Jasvir Kaur. Hearing the sound of fire villagers thought that dacoity was being committed. They came there discharging their fire arms. In that shooting Pritam Singh and Kunti sustained injuries, which resulted in the death of Pritam Singh. In the defence accused did not produce any oral evidence. Only papers were filed, out of these four i.e. injury reports of Smt. Jasvir Kaur, Smt. Sheelwanti, Smt. Bhagwant Kaur and Balwant Singh require to be mentioned in some detail; PW-7 Dr. C.P. Srivastava, who medically examined them, on 30.1.1982 between 7.40 p.m. to 8.45, on the basis of chithi majroobi of the P.S. concerned. Details of their injuries are mentioned hereinunder:- Injuries of Smt. Jasvir Kaur vide Ex. Ka 21: 1.Multiple gunshot wounds of entry- size 0.3 x 0.3 cm. each on the back of chest and buttock. No blackening. Area of wounds 40 cm. x 20 cm. Duration fresh. Injuries of Smt. Sheelwanti, vide EX. Ka 22: 1.Lacerated wound 5-1/2 cm. x 1 cm. x bone deep on right side head. Bleeding present. 2.Lacerated wound 3 cm. x 1 cm. x bone on upper part left side of forehead. 3.Abraded contusion 5 cm. x 2 cm. on the dorsom of right forearm, lower part. Duration fresh. Injuries of Smt. Bhagwant Kaur vide Ex. Ka 23: 1.Lacerated wound 3-1/2 cm. x 0.5 cm. x bone on right side of head. 2.Contusion 4 cm. x 1 cm. on right side face on maxilla. 3.Lacerated wound 1 cm. x 0.3 cm. 3.Abraded contusion 5 cm. x 2 cm. on the dorsom of right forearm, lower part. Duration fresh. Injuries of Smt. Bhagwant Kaur vide Ex. Ka 23: 1.Lacerated wound 3-1/2 cm. x 0.5 cm. x bone on right side of head. 2.Contusion 4 cm. x 1 cm. on right side face on maxilla. 3.Lacerated wound 1 cm. x 0.3 cm. x muscle on underside tip of left thumb. 4.Abrasion 1 cm. x 0.2 cm. on the dorsum of left thumb below nail. 5.Lacerated wound 1 cm. x 0.3 cm. x skin on the dorsum base right thumb with swelling of whole dorsum right hand. 6.Contusion 9 cm. x 2-1/2 cm. on upper part dorsum of right forearm. 7.Complain of pain all over the body with no obvious mark of injury. Duration of injuries was fresh. Injuries of Balwant Singh vide Ex. Ka 24: 1.Lacerated wound 7 cm. x 0.5 cm. x scalp on right side head 10 cm. above right ear. 2.Lacerated wound 3 cm. x 0.5 cm. x scalp right side head 6 cm. above right eyebrow. The learned Sessions Judge after conclusion of the trial and having heard the parties passed the impugned judgment and order. He had acquitted Karanjit Singh @ Ladi from all the charges, convicted Balwant Singh under sections 302, 307 and 323, IPC, acquitted Smt. Sheelwanti and Smt. Bhagwant Kaur under sections 302/34 and 307/34, IPC, however, these two were convicted under section 323, IPC. According to learned Sessions Judge, FIR is reliable, prompt and without embellishment. He has found evidence of Vidyawanti, PW-3, first informant trustworthy being natural and probable witness of occurrence, she had vividly described the occurrence, stood the test of cross examination well. Regarding evidence of Avatar Singh, PW-1 the learned Sessions Judge has observed that his testimony is also worth credence, he is an injured witness, his narration of the occurrence receives support from the medical evidence. Learned Sessions Judge has further considered and evaluated the medical evidence and evidence of Investigating Officer V.P. Tyagi, PW-5 and found him to be a fair Investigating Officer. After appreciating all the evidence available on record, he has discussed the defence version and found it untrue. Learned Sessions Judge has further considered and evaluated the medical evidence and evidence of Investigating Officer V.P. Tyagi, PW-5 and found him to be a fair Investigating Officer. After appreciating all the evidence available on record, he has discussed the defence version and found it untrue. Learned Sessions Judge has recorded categorical finding that prosecution has succeeded in proving the truthfulness of the prosecution story, thereafter, he has proceeded further to determine the role of each accused in the offences committed on 30.10.1982, as reported by Smt. Vidyawanti. He has divided the whole incident in three parts, first, the quarrel and marpeet, which took place between deceased Pritam Singh on the one hand and accused Sheelwanti, Bhagwant Kaur and Balwant Singh on the other hand, secondly, exhortation given by accused Smt. Sheelwanti, Bhagwant Kaur and Karanjeet Singh and thirdly, firing of gun shots resulting into fatal injuries to Pritam Singh and also causing gun shot injuries to Avatar Singh and Jasvir Kaur. In reference to first part of the incident, learned Sessions Judge has opined that it occurred as a result of aggression by Smt. Sheelwanti, who inflicted injury on the head of deceased Pritam Singh by a handle. He has further opined that Pritam Singh grappled and wielded lathi in self-defence causing injuries to accused persons. He has found Smt. Sheelwanti, Smt. Bhagwant Kaur and Balwant Singh guilty of offence of causing voluntarily hurt to Pritam Singh. While discussing the second part regarding the exhortation, learned Sessions Judge has expressed doubt about it. According to him, the evidence does not show that there was any pre-concert or meeting of minds of Karanjit Singh, Smt. Sheelwanti, Bhagwant Kaur either among themselves or with Balwant Singh. The firing made by Balwant Singh in the opinion of learned Sessions Judge was an individual act of Balwant Singh on his own volition. In the reference of third part of the incident, learned Sessions Judge has expressed no doubt and found Balwant Singh to have fired upon retreating Pritam Singh and his son Avatar Singh with the intention to kill. As a result of such firing Pritam Singh died on the spot and Avatar Singh though wounded critically having received firearm injuries on his chest survived after treatment. As a result of such firing Pritam Singh died on the spot and Avatar Singh though wounded critically having received firearm injuries on his chest survived after treatment. Learned AGA in support of his appeal has argued that the impugned judgment suffers on this count that the learned Sessions Judge has erred in not appreciating the legal position that common intention might develop at the spur of the moment. From the facts unfolded by the evidence of prosecution witnesses it has been proved beyond doubt that all the four accused shared the common intention, all offences were committed in the course of same transaction. Learned AGA has also contended that on the question of his not believing exhortation no convincing reason has been given by the learned Sessions Judge and the fact of exhortation made by the present respondent Bhagwant Kaur along with Smt. Sheelwanti and Karanjeet Singh is sufficient to establish that firing resorted to by the accused Balwant Singh was in furtherance of common intention shared by all the accused. Learned amicus curiae representing respondent no.2 Bhagwant Kaur has repelled the argument of learned AGA and in support of criminal appeal, filed by Balwant Singh (deceased), Bhagwant Kaur and Smt. Sheelwanti (deceased) while representing Smt. Bhagwant Kaur, has argued that conviction of the appellant no.2 is against the weight of evidence on record. He submits that there is no iota of evidence against Bhagwant Kaur to show that she had participated in the marpeet. If the government appeal succeeds, we will be required to scrutinise all the evidence adduced by the prosecution either relating to first part of the incident or second part or third part. In case, we come to the conclusion that learned Sessions Judge has rightly concluded that common intention to murder Pritam Singh and attempt to commit murder of Avatar Singh was not shared by all the four accused, we will be required to examine only that part of evidence which relates to the role of Bhagwant Kaur in reference to marpeet with Pritam Singh. It seems a prudent course, to decide the question involved in the Government Appeal first, thereafter, deal with the appeal against conviction. Learned AGA has not disputed any finding of fact recorded by the learned Sessions Judge except on the point of exhortation. In the first information report fact of exhortation has been specifically mentioned by Smt. Vidyawanti. It seems a prudent course, to decide the question involved in the Government Appeal first, thereafter, deal with the appeal against conviction. Learned AGA has not disputed any finding of fact recorded by the learned Sessions Judge except on the point of exhortation. In the first information report fact of exhortation has been specifically mentioned by Smt. Vidyawanti. Smt. Vidyawanti, when examined as PW-3, has stated the same thing, but in a different language. Avatar Singh, PW-1 has also repeated the same language. Under cross examination the sequence of events narrated by Smt. Vidyawanti at page 8 of her deposition is very revealing. There were two rounds of firing. In first round Pritam Singh was hit when he was running away towards West. Second round of firing took place after Pritam Singh fell down, Avatar Singh came, then he and Jasvir Kaur were hit. According to this witness marpeet went on for 15-20 minutes, then gun was handed over to Balwant Singh. Pritam Singh was armed with lathi. A person, who was beaten by lathi would have no opportunity to observe that gun was handed over to Balwant Singh and he was abeted to commit murder. Cross examination of Avatar Singh, PW-1 depicts a picture regarding exhortation worse than the evidence of Vidyawanti. We have no doubt that learned Sessions Judge was right to express doubt on the fact of 'exhortation' by accused Sheelwanti, Bhagwant Kuar and Karanjeet Singh. Second argument put forth by learned AGA is purely legal. In order to appreciate that argument first we would like to discuss when another person is vicariously liable under section 34 of the Indian Penal Code for the act of other(s). In this regard the first case, which comes to our mind is the case of Mahboob Shah Vs. Emperor, LR vol. LXXII Indian Appeals 148. In this case facts were:-On August 25, 1943, at sunrise, Allah Dad, deceased, with a few others left their village, Khanda Kel, by boat for cutting reeds growing on the banks of the Indus river. When they had travelled for about a mile downstream they saw Mohammad Shah, father of Wali Shah (absconder), bathing on the bank of the river. On being told that they were going to collect reeds, he warned them against collecting reeds from land belonging to him. When they had travelled for about a mile downstream they saw Mohammad Shah, father of Wali Shah (absconder), bathing on the bank of the river. On being told that they were going to collect reeds, he warned them against collecting reeds from land belonging to him. Ignoring his warning, they collected about sixteen bundles of reeds, and then started for the return journey. While the boat was being pulled upstream by means of a rope, Ghulam Quasim Shah, nephew of Mohammad Hussain Shah, who was standing on the bank of the river, asked Allah Dad to give him the reeds that had been collected from his uncle's land. He refused. Quasim Shah then caught the rope and tried to snatch it away. He then pushed Allah Dad and gave a blow to Allah Dad with a small stick, but it was warded off on the rope. Allah Dad then picked up the lari from the boat and struck Quasim Shah with it. Quasim Shah then shouted out for help and Wali Shah and Mahbub Shah came up. They had guns in their hands. When Allah Dad and Hamidullah tried to run away, Wali Shah and Mahbub Shah came in front of them and Wali Shah fired at Allah Dad, who fell down dead, and Mahbub Shah fired at Hamidullah, causing injuries to him. After conclusion of trial Mahboob Shah was sentenced by the trial court to seven years' rigorous imprisonment for attempt to murder. But on appeal the Lahore High Court sentenced him to death under section 302 read with section 34 of the Indian Penal Code for committing murder of Allahdad. Mahboob Shah appealed to the Privy Council against his conviction. The appeal was allowed by the Privy Council and conviction for murder was set aside. The following principles were laid down by the Privy Council in that case :- (1) Under section 34 of the Penal Code, essence of liability 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. The following principles were laid down by the Privy Council in that case :- (1) Under section 34 of the Penal Code, essence of liability 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. (2) To invoke the aid of section 34 successfully, it must be shown that the criminal act complained against was done by one of the accused persons in furtherance of the common intention; if this is so then liability for the crime may be imposed on any one of the persons in the same manner as if the acts were done by him alone. (3) Common intention within the meaning of section 34 implies a pre-arranged plan, and to convict the accused of an offence applying the section it should be proved that the criminal act was done in concert pursuant to the pre-arranged plan. (4) It is difficult, if not impossible, to procure direct evidence to prove the intention of an individual, in most cases it has to be inferred from his act or conduct or other relevant circumstances of the case. (5) Care must be taken not to confuse same or similar intention with common intention; the partition which divides "their bounds" is often very thin; nevertheless, the distinction is real and substantial and if overlooked with result in miscarriage of justice. (6) The inference of common intention within the meaning of the term under section 34 should never be reached unless it is a necessary inference deductible from the circumstances of the case. In that case, their Lordships observed the following:- "There was no evidence and there was no circumstances from which it could be inferred that Mahboob Shah, the appellant acted in concert with Wali Shah in pursuance of a pre-plan when former along with the latter rushed to the rescue of Ghulam Quasim. The two had the same intention, namely the intention to rescue Quasim Shah if need be by use of the guns and that in carrying out this intention, Mahboob Shah picked out Hamidullah and Wali Shah, the deceased (i.e. Allahdad) for dealing, but where is the evidence of common intention to commit the criminal act complained against in furtherance of the common intention, there was no case for convicting the appellant for murder. There was no evidence that appellant and Wali Shah ever entered into a pre-mediated concert to bring about the murder of Allahdad in carrying out their intention of rescuing Quasim Shah." These principles propounded by the Privy Council have been applied in a number of cases by the Hon'ble Apex Court. In Ram Nath Vs. State of Madhya Pradesh, AIR 1953 420 the Hon'ble Apex Court while referring the case of Mahboob Shah (supra) has held the following:- "Even if it is held proved that all the appellants were seen at that spot at the time of firing, this fact by itself could not be held enough to prove a common intention of the appellants to murder Sunder. It can well be that these four persons were standing together and one of them suddenly seeing Sunder fired at him. This possibility has not been eliminated by any evidence on the record. In such a situation when it would not be known who fired the fatal shot, none of such persons could be convicted of murder under Section 302, I.P.C. It seems to us that in this case the High Court failed to appreciate the true effect of the decision of the Privy Council in- 'Mahbub Shah v. Emperor', AIR 1945 PC 118 (A), and its judgment in regard to the applicability of S.34, I.P.C. has to be reversed." There is yet another dimension of the case in respect whereof the legal proposition also deserves to be dealt with as it arises on the facts of the present case namely as to whether the ingredients of Section 34 are attracted or not. For this, we have delved into the evidence and we find that there is no overt act except the alleged exhortation so as to indicate a pre meeting of minds between the accused for committing the offence. The statement of the injured witness Avatar Singh as well as the statement of the other witnesses do not clearly and firmly establish the incriminating facts that may prove the existence of a pre meditated meeting of minds for the formation of common intention. In our opinion, a bare engagement and association cannot by itself form common intention, inasmuch as, a unity of criminal behaviour followed by commission of the offence is necessary to construe the existence of the ingredients of common intention. In our opinion, a bare engagement and association cannot by itself form common intention, inasmuch as, a unity of criminal behaviour followed by commission of the offence is necessary to construe the existence of the ingredients of common intention. We do not find any plan prior in point of time or even at the moment except the allegation of exhortation. The learned Sessions Judge has disbelieved the statement of the witnesses including that of the main injured witness Avatar Singh and we entirely agree with this finding to that effect. It is to be noted that there is a distinction between common intention and similar intention. The fatal attack was by the accused Balwant on the handing over of a gun by Karanjeet. Smt. Bhagwant Kaur was only alleged to have engaged herself in a hand to hand fight with the deceased Pritam Singh and, therefore, her conviction at best could only be under Section 323 IPC which finding has been recorded by the learned Sessions Judge. The law as explained by us herein above has also been very succinctly laid down in the decision of Nagaraja Vs. State of Karnataka, (2008) 17 SCC 277 , paragraph nos. 18 to 27 of which is extracted herein after:- "18. For invoking the provisions of Section 34 of the 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 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 of the I.P.C. Other factors should also be taken into consideration for arriving at the said conclusion. Accused persons were not related to each other; they did not have any family connection; they have different vocations. It is also well settled that only the presence of the accused by itself would not attract the provisions of Section 34 of the I.P.C. Other factors should also be taken into consideration for arriving at the said conclusion. 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. 19. A general and vague statement made by one of the prosecution witnesses would not prove motive. It may be true that the common intention may develop suddenly at the spot but for the said purpose, the genesis of the occurrence should have been proved. The prosecution has failed to establish why and how a quarrel has started. The prosecution even has not proved as to why the accused No. 1 was carrying the iron rod even before the quarrel with the deceased started or as to whether the appellant was aware of this. It has also not been shown that he along with other accused persons came to assault the deceased. Appellant ordinarily was expected to be at his work place only. His presence at the spot, therefore, has sufficiently been explained. 20. In Rishideo Pande vs. State of Uttar Pradesh [ AIR 1955 SC 331 ], this Court held: "2 The main point urged by Sri Umrigar who appears in support of this appeal is that Section 34, I. P. C., has been wrongly applied to the facts of this case. The meaning, scope and effect of Section 34 have been explained on more than one occasion by the Privy Council and by this Court. It will suffice only to refer to the last decision of this Court in the case of 'Pandurang v. The State of Hyderabad', AIR 1955 SC 216 (A) pronounced on 3-12-1954. It is now well settled that the common intention referred to in Section 34 presupposes prior concert, a pre-arranged plan, i.e., a prior meeting of minds. This does not mean that there must be a long interval of time between the formation of the common intention and the doing of the act. It is not necessary to adduce direct evidence of the common intention. Indeed, in many cases it may be impossible to do so. This does not mean that there must be a long interval of time between the formation of the common intention and the doing of the act. It is not necessary to adduce direct evidence of the common intention. Indeed, in many cases it may be impossible to do so. The common intention may be inferred from the surrounding circumstances and the conduct of the parties. Sri Umrigar submits that there is nothing on the record from which a common intention on the part of Rain Lochan and the appellant to murder Sheomurat can be properly inferred." 21. Yet again in Chikkarange Gowda and Ors. v. State of Mysore [ AIR 1956 SC 731 ], this Court held: "10. So far back as 1873, in Queen v. Sabed Ali 20 Suth W R (Cr) 5 (A), it was pointed out that Section 149 did not ascribe every offence which might be committed by one member of an unlawful assembly while the assembly was existing, to every other member. The section describes the offence which is to be so attributed under two alternative forms: (1) it must be either an offence committed by a member of the unlawful assembly in prosecution of the common object of that assembly; or (2) an offence such as the members of that assembly knew to be likely to be committed in prosecution of that object. In Barendra Kumar Ghosh v. Emperor, 52 Ind App 40 : ( AIR 1925 PC 1 ) (B) the distinction between Sections 149 and 34, Penal Code was pointed out. It was observed that Section 149 postulated an assembly of five or more persons having a common object, namely, one of those objects named in Section 141, and then the doing of acts by members of the assembly in prosecution of that object or such as the members knew were likely to be committed in prosecution of that object. It was pointed out that there was a difference between common object and common intention ; though the object might be common, the intention of the several members might differ. The leading feature of Section 34 is the element of participation in action, whereas membership of the assembly at the time of the committing of the offence is the important element in Section 149. The leading feature of Section 34 is the element of participation in action, whereas membership of the assembly at the time of the committing of the offence is the important element in Section 149. The two sections have a certain resemblance and may to a certain extent overlap, but it cannot be said that both have the same meaning." 22. Yet again in Mohan Singh v. State of Punjab [ AIR 1963 SC 174 ], this Court held: "13. That inevitably takes us to the question as to whether the appellants can be convicted under s. 302/34. Like s. 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 s. 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 s. 34. In some ways the two sections are similar and in some cases they may overlap. But, nevertheless, the common intention which is the basis of s. 34 is different from the common object which is the basis of the composition of an unlawful assembly. Common intention denotes action-in-concert and necessarily postulates the existence of a pre- arranged plan and that must mean a prior meeting of minds. It would be noticed that cases to which s. 34 can be applied disclose an element of participation in action on the part of all the accused persons. The acts may be different; may vary in their character, but they are all actuated by the same common intention. It is now well-settled that the common intention required by s. 34 is different from the same intention or similar intention." 23. The acts may be different; may vary in their character, but they are all actuated by the same common intention. It is now well-settled that the common intention required by s. 34 is different from the same intention or similar intention." 23. Even a past enmity by itself, in our opinion, may not be a ground to hold for drawing any inference of formation of common intention amongst the parties. 24. We may, however, hasten to add that the question as to whether common intention was formed for commission of an offence or not would depend upon the facts of each case. {See Nishan Singh v. State of Punjab [2008 (3) SCALE 416]} 25. Recently in Bhanwar Singh & ors. vs. State of M.P.[ 2008 (7) SCALE 633 ], this Court held: "45. It would also be instructive to look at the following observations made in Gurdatta Mal v.State of UP [ AIR 1965 SC 257 ], in the context of Sections 34 and 149 IPC:- "It is well settled that Section 34 of the Indian Penal Code does not create a distinct offence: it only lays down the principle of joint criminal liability. The necessary conditions for the application of Section 34 of the Code are common intention to commit an offence and participation by all the accused in doing act or acts in furtherance of that common intention. If these two ingredients are established, all the accused would be liable for the said offence... In that situation Section 96 of the Code says that nothing is an offence which is done in the exercise of the right of private defence. Though all the accused were liable for committing the murder of a person by doing an act or acts in furtherance of the common intention, they would not be liable for the said act or acts done in furtherance of common intention, if they had the right of private defence to voluntarily cause death of that person. Common intention, therefore, has relevance only to the offence and not to the right of private defence. What would be an offence by reason of constructive liability would cease to be one if the act constituting the offence was done in exercise of the right of private defence." 26. Common intention, therefore, has relevance only to the offence and not to the right of private defence. What would be an offence by reason of constructive liability would cease to be one if the act constituting the offence was done in exercise of the right of private defence." 26. For the aforementioned reasons, we are of the opinion that appellant cannot be held guilty for commission of offence punishable under Section 302 read with Section 34 of the IPC. The very fact that the appellant was unarmed and must be presumed to have been performing his duties at his place of employment, it cannot be said that he had formed any kind of common intention at the spot to murder the deceased. Some incident might have taken place and he might have formed a common intention to teach a lesson to the deceased. He might be guilty for commission of offence punishable under Section 323 of the IPC and not for commission of offence punishable under Section 302 read with Section 34 of the IPC. He is sentenced to the period already undergone. 27. The appeal is allowed accordingly. The appellant is on bail. The bail bonds shall stand discharged." In an another recent case of Shyamlal Ghosh Vs. State of Bengal, AIR 2012 SC 3539 the Hon'ble Apex Court has emphasised the existence of pre-oriented plan and in furtherance thereof action taken by any of the person sharing the same common intention. Applying the aforesaid principles in the present case also Bhagwant Kaur might have caused hurt to Pritam Singh or to the other injured but it cannot be said that she had formed any kind of common intention at the spot to commit the murder of the deceased Pritam Singh or attempt to commit murder of Avatar Singh. Consequently, the element of a common intention as envisaged under Section 34 being absent, the accused could not be held guilty of any such offences with the aid of Section 34 of the Indian Penal Code. In view of the legal position stated above, we find ourselves unable to accept the argument advanced by learned AGA contrary to the legal position stated hereinabove. Thus, argument of learned AGA in this respect is without substance and deserves to be rejected. Now, there remains only the role of Bhagwant Kaur alleged to be taken by her in the marpeet with Pritam Singh. Thus, argument of learned AGA in this respect is without substance and deserves to be rejected. Now, there remains only the role of Bhagwant Kaur alleged to be taken by her in the marpeet with Pritam Singh. There is a categorical statement of two witnesses that she played an active role in the marpeet. During cross examination averments made by Vidyawanti, PW-3 and Avatar Singh could not be demolished by the defence, thus, her participation in the marpeet has been successfully proved beyond all reasonable doubt. Thus, argument advanced by learned amicus curiae disputing this finding is not acceptable to us and remains unsubstantiated from the record, hence, rejected. We put on record our appreciation of the assistance given by the learned amicus curiae Shiv Shanker Gupta, who has assisted the Court on behalf of Bhagwant Kaur and we, accordingly, direct that he shall be paid an amount of Rs.5,500/- as remuneration by the competent authority as amicus curiae in this appeal. Let the lower court records be transmitted to the concerned court and appropriate steps be taken for disposal of exhibits. In view of the above, we are of the opinion that findings recorded by the learned Sessions Judge, sentences awarded to the convicted accused persons do not require any interference by us. However, we find that the learned Sessions Judge, while passing orders under Section 452, Cr.P.C. in reference to disposal of material exhibits (case properties) in the operative portion while directing gun exhibit-3 and belt of cartridges, exhibit-4, has failed to apply his mind to the peculiar facts of this case. In this case it is not disputed that these two articles belonged to accused Balwant Singh and they were used for committing murder of Pritam Singh and attempt to commit murder of Avatar Singh besides causing injuries to Jasvir Kaur. The Sessions Judge has directed by the impugned order that these two articles be returned to Manvendra Singh, by whom they were deposited at the police station. At this juncture it will be helpful to refer the provisions contained in Section 452, Cr.P.C., which is quoted as below:- "452. Order for disposal of property at conclusion of trial. The Sessions Judge has directed by the impugned order that these two articles be returned to Manvendra Singh, by whom they were deposited at the police station. At this juncture it will be helpful to refer the provisions contained in Section 452, Cr.P.C., which is quoted as below:- "452. Order for disposal of property at conclusion of trial. (1) When an inquiry or trial in any Criminal Court is concluded, the Court may make such order as it thinks fit for the disposal, by destruction, confiscation or delivery to any person claiming to be entitle to possession thereof or otherwise, of any property or document produced before it or in its custody, or regarding which any offence appears to have been committed, or which has been used for the commission of any offence. (2) An order may be made under sub- section (1) for the delivery of any property to any person claiming to be entitled to the possession thereof, without any condition or on condition that he executes a bond, with or without sureties, to the satisfaction of the Court, engaging to restore such property to the Court if the order made under sub- section (1) is modified or set aside on appeal or revision. (3) A Court of Session may, instead of itself making an order under sub- section (1), direct the property to be delivered to the Chief Judicial Magistrate, who shall thereupon deal with it in the manner provided in sections 457, 458 and 459. (4) Except where the property is livestock or is subject to speedy and natural decay, or where a bond has been executed in pursuance of subsection (2), an order made under sub- section (1) shall not be carried out for two months, or when an appeal is presented, until such appeal has been disposed of. (5) In this section, the term" property" includes, in the case of property regarding which an offence appears to have been committed, not only such property as has been originally in the possession or under the control of any party, but also any property into or for which the same may have been converted or exchanged, and anything acquired by such conversion or exchange, whether immediately or otherwise." For exercising this jurisdiction by the learned Sessions Judge all the pre-conditions were satisfied when the impugned order was passed. By the said direction the Sessions Judge adopted the general rule that the property should be returned from whose possession it was recovered/came. This general rule has some exceptions like inter-alia where the property was stolen or looted, the property in case of conviction is returned to the owner being entitled to possession of the same. Thus, there are two options; either on the basis of general rule these two articles may be handed over to Manvendra Singh or they should be returned to the heirs of Balwant Singh, who are entitled to their possession on the strength of title. Following first course the direction contained in the impugned order in this regard would result in contravention of provisions contained in Arms Act because Manvendra Singh neither is owner nor the licence holder to possess the same. Pursuant to the direction of the court as soon as Manvendra Singh gets possession of these two articles, he would be guilty of criminal offence punishable under Arms Act. Since these two articles had been used in commission of heinous offence, their return to the heirs of the murderer pinches our judicial conscience. Section 452, Cr.P.C., quoted hereinbefore, confers power for disposal of property at conclusion of trial on the trial (criminal) court, however, sub-section 3 of section 452 empowers the Court of Session to direct the case property to be delivered to CJM to dispose of such property in the manner provided in sections 457, 458 and 459, Cr.P.C. The next relevant question arises whether the gun, exhibit-3 and belt of cartridges, exhibit-4 are liable to be disposed of in accordance with Section 452, Cr.P.C. or separate provisions for their disposal has been provided in the Arms Act, 1959. Since Balwant Singh had been convicted for commission of offences punishable under sections 302, 307, 323, IPC, neither he was charged nor he was convicted for any offence punishable under Arms Act, therefore, articles in question cannot be disposed of in accordance with the provisions contained in Section 32 of the Arms Act. Our view in this regard stands fortified from the case of Brijlal Vs. State of Rajasthan, 1983 CRI. L. J. 1511 (Raj.). In para 19 of the said judgment Single Judge of the Rajasthan High Court has observed the following:- "The prosecution being under the Penal Code and not under any Special Act, Ss. Our view in this regard stands fortified from the case of Brijlal Vs. State of Rajasthan, 1983 CRI. L. J. 1511 (Raj.). In para 19 of the said judgment Single Judge of the Rajasthan High Court has observed the following:- "The prosecution being under the Penal Code and not under any Special Act, Ss. 4(2) and 5 of the Cr.P.C. are not attracted. Simply because the weapon of offence happens to be fire arm it will not come out of the ambit of the term "property" mentioned in Section 452 of the Cr.P.C. The court is authorised to dispose of the weapon of offence under this section whatever be its nature. The gun would fall in the category as lathi, axe or any other weapon used for the commission of the offence under the Penal Code. I am therefore, inclined to hold that the trial of the petitioner not being under any special enactment the Court cannot be said to be in error in pressing into service the provisions of Section 452, Cr.P.C." In view of the above, we are of the opinion that findings recorded by the learned Sessions Judge in the impugned judgment are correct and legal and they warrant no interference by us. Both the appeals so far as they relate to the conviction/sentence/acquittal of the accused persons are concerned, impugned operative order need no interference by us and order for disposing of material exhibits 1, 2, 5 to 10 also needs no interference by us. However, direction contained in the impugned operative order in reference to disposal of gun, exhibit-3 and belt of cartridges, exhibit-4, in view of the reasons recorded by us in the body of the judgment, requires to be set aside with the direction that fresh order under section 452, Cr.P.C. be passed either by the Sessions Judge, Bareilly himself or by the CJM, Bareilly, if directed by the Sessions Judge, Bareilly to do so. Resultantly, Government Appeal No. 952 of 1985, State of U.P. Vs. Karan Jit Singh Alias Ladi and others is dismissed to the extent that acquittal of Smt. Bhagwant Kaur for offences under sections 302/34 and 307/34 is upheld and Criminal Appeal No.3540 of 1984, Balwant Singh & Others Vs. State is dismissed to the extent that the conviction and sentence of Smt. Bhagwant Kaur under section 323, IPC are upheld. Karan Jit Singh Alias Ladi and others is dismissed to the extent that acquittal of Smt. Bhagwant Kaur for offences under sections 302/34 and 307/34 is upheld and Criminal Appeal No.3540 of 1984, Balwant Singh & Others Vs. State is dismissed to the extent that the conviction and sentence of Smt. Bhagwant Kaur under section 323, IPC are upheld. The impugned order in reference to disposal of appeal, exhibits 1, 2, 5 to 10 is also maintained, however, direction contained in the impugned order in reference to return of gun, exhibit-3 and belt of cartridges, exhibit-4 to Manvendra Singh is set aside and learned Sessions Judge, Bareilly is directed to pass either himself or under Section 452 (3), Cr.P.C. direct the CJM to pass a fresh order for disposal of gun, exhibit-3 and belt of cartridges, exhibit-4, in accordance with law. To this extent, impugned judgment and order stand modified. ———————