JUDGMENT Hon’ble Arvind Kumar Mishra-I, J.—We have heard extensively Shri S.V. Goswami, learned counsel appearing on behalf of appellant No. 2, Mr. Chandra Jeet Yadav, learned AGA for the State and perused the record. 2. In this case initially the appeal was filed by two appellants Ram Prasad and Ram Sewak but during pendency of this appeal, one of the appellants Ram Prasad died, therefore, his appeal stood abated vide order of this Court dated 15.2.2016. Now this appeal is confined to the surviving appellant Ram Sewak only. 3. The instant criminal appeal has been preferred against the judgment and order of conviction and sentence dated 18.9.1986 passed by VII-Additional Sessions Judge, Agra, in Sessions Trial No. 89 of 1985 arising out of Case Crime No. 602 of 1983, under Sections 302, 307 and 452 I.P.C., Police Station Firozabad South, district Agra, whereby the appellants have been sentenced to life imprisonment under Section 302 and 307 IPC and seven years rigorous imprisonment under Section 452 IPC. All the aforesaid sentences have been directed by the trial Court to run concurrently. 4. Factual matrix of the case as trickles out from the perusal of record appears to be that the informant Hundi Lal @ Daroga son of Raghubar Dayal resident of Village Humayupur, P.S. Firozabad South, District Agra lodged an oral information at the police station (Firozabad South) on 4.11.1983 at 18.45 hrs to the effect that the first informant has settled in village Humayupur. However, they originally belonged to village Sakini within police station Khairgarh, district Mainpuri. Daughter of Ram Prasad a co-villager eloped away 4-5 days ago. Ram Prasad suspected hands of informant and his family behind this elopement. Today on 4.11.1983 at about 6.00 p.m. when the sun had set in, the first informant was sitting under chhappar (thatched roof) in his house alongwith his brother Diwan Singh, father Raghubar Dayal, mother Long Shree, sister Maya Devi, younger brother Maya Ram and informant’s wife Foolan. The main door of the house was open, it was Diwali festival therefore, clay/earthen lamps were also lighted. Besides a lamp was also lighted inside his house. It was 6.00 pm, Ram Prasad Khatik and his son Ram Sewak of the same village entered into the house, Ram Sewak was possessing country made pistol and Ram Prasad was possessing knife in their hands. Besides a lamp was also lighted inside his house. It was 6.00 pm, Ram Prasad Khatik and his son Ram Sewak of the same village entered into the house, Ram Sewak was possessing country made pistol and Ram Prasad was possessing knife in their hands. Ram Sewak caught the informant and Ram Prasad assaulted him with knife. First informant somehow extricated himself and climbed upon the roof of his house, now Ram Prasad assaulted informant’s mother and father with knife. Ram Sewak also caused injury by giving blow from the rear side of his country made pistol on his mother’s head. Informant’s brother Diwan Singh, in the meanwhile, came out of the house and ran away, he was pursued by both the assailants and Ram Sewak caught his brother 15-20 paces away near house of Ram Ji Lal and Ram Prasad gave him several knife blows. His brother succumbed to his injuries in a short while. The incident was witnessed by informant’s father, younger brother Maya Ram, younger sister Maya Devi, besides the informant. Alarm was raised but no one intervened due to fear. Ram Sewak also opened fire with his gun. Informant’s parents went to hospital in Firozabad whereas the informant has come to lodge this report. This oral report was explained to the first informant who confirmed its contents and made his signatures thereon. This report has been taken down in the chik FIR as exhibit Ka-1 on 4.11.1983. Thereafter, the investigation of the case followed and inquest report of deceased Diwan Singh was prepared by Raj Kumar Sharma, Sub-Inspector (PW-5). He also prepared the relevant papers for sending the dead body for post-mortem examination and prepared relevant papers as exhibit Ka-7, Ka-8 and Ka-9. Besides, Raj Kumar Sharma PW-5 also took into possession blood stained soil and simple soil from the place of occurrence and also took mud/clay lamp from under Chhappar of Raghubar Dayal and sealed the same and prepared memo of the same on the spot, which memo is exhibit Ka-11. First informant Hundi Lal was medically examined on 4.11.1983 at 7.40 pm in SNM Hospital, Firozabad wherein following injury was found on his person by the doctor: 1. Incised wound 3 cm x 1 cm x bone deep, present over the left side of back 6 cm below the left Iliac crest posteriorly. Margins were clean cut tapering towards the mid line. Incised wound 3 cm x 1 cm x bone deep, present over the left side of back 6 cm below the left Iliac crest posteriorly. Margins were clean cut tapering towards the mid line. The wound was bleeding and gaping. This injury was kept under observation. Doctor has opined that it was caused due to some sharp edged pointed object. The patient was admitted in the hospital. This injury report is exhibit Ka-4. 5. The same day (4.11.1983) informant’s father Raghubar Dayal and mother Long Shree were medically examined at 7.45 pm and 7.55 pm respectively, wherein the following injuries were noted on examination by the doctor. Injury report of Raghubar Dayal discloses: 1. Incised wound 2 cm x 5 cm x muscle deep on left side deltoit region. The wound was bleeding and gaping. Margins were clean cut, Tapering towards outer side. 2. Stabbed wound 2.5 cm x 0.5 cm x thoracic cavity on left side near Axillary line 8 cm outer to the left nipple. The wound was bleeding and gaping. Margins were found clean cut. 3. Incised wound 1 cm x 0.3 cm x muscle deep on right side of back 8.5 cm below inforior angle of right side scapula. The margins were found clean cut. Wound was gaping and tapering below. It was bleeding also. 4. Abrasion 3 cm x 1 cm, 2 cm away from injury No. 3 towards outside. Injuries No. 1, 3 and 4 were simple. Injury No. 2 was kept under observation. Injuries No. 1, 2 3 were caused by sharp edged pointed weapon. Injury No. 4 was caused by friction. X-ray chest was advised. Police was informed and the patient was admitted in the hospital. This injury report is exhibit Ka-5. 6. In medical examination of Smt. Long Shree on the same day at 7.55 pm, Doctor found the following injuries on her person. 1. Lacerated wound 2.5 cm x 0.5 cm x scalp deep on left parieto occipital region 4 cm above the left ear. The wound was bleeding. 2. Incised wound 1.5 cm x 0.3 cm x cavity deep on the left side of back, 1 cm away from scapula. Margins were found clean cut tapering towards the middle line. Wound was found gaping and bleeding. 3. Lacerated wound 2 cm x 0.5 cm. Muscle deep present over the posterior aspect of lower third of right forearm. 2. Incised wound 1.5 cm x 0.3 cm x cavity deep on the left side of back, 1 cm away from scapula. Margins were found clean cut tapering towards the middle line. Wound was found gaping and bleeding. 3. Lacerated wound 2 cm x 0.5 cm. Muscle deep present over the posterior aspect of lower third of right forearm. It was also bleeding. Injuries No. 1 and 2 were kept under observation. Injury No. 3 was simple. Injuries No. 1 and 3 were caused by some blunt object while injury No. 2 was caused by some sharp edged pointed object. Patient was admitted in the hospital and information to the police was given. Long Shree later on died on 23.1.1984. This injury report is exhibit Ka-6. 7. Post-mortem examination on the dead body of Diwan Singh was conducted at SNM Hospital, Firozabad on 5.11.1983 at 1.10 pm. Dead body was received at the mortuary on 4.11.1983 at 11.30 pm which was brought by constable Megh Shyam and Narendra Kumar Post-mortem was conducted by Dr. Rajendra Kumar Gupta PW-3. He found the following ante-mortem injuries on the dead body of Diwan Singh. 1. Incised wound 4" x 2" x bone deep on left side of neck in the middle. All the vessels were completely cut. 2. Incised wound 1" x 1/2" x muscle deep on the front side of neck in the middle. 3. Incised wound 1/4" x 1/4" x muscle deep on left front chest 2 cm away from left nipple. 4. Incised wound 1" x 1/2" x skin deep on the lower part of left forearm. In Internal Examination it was found that both the chambers of heart were empty, semi digested food was found in stomach and small intestine. In the large intestine faecal matter was found. It has also been mentioned in the report that the death was caused due to profuse bleeding and shock due to injuries. This post-mortem examination is exhibit Ka-2. 8. Relevant to mention here that on 23.1.1984 Long Shree (injured under treatment) died and information sent to the police, consequently inquest report was prepared on 24.1.1984 by Constable Brij Mohan Gautam PW-7 and after preparation of relevant papers the dead body was sent for post-mortem examination to SNM Hospital, Firozabad, Agra. This inquest report is exhibit Ka-22 which has been proved by constable Shyam Bihari Singh PW-10. This inquest report is exhibit Ka-22 which has been proved by constable Shyam Bihari Singh PW-10. Post-mortem examination was conducted by Dr. Rajendra Kumar Gupta PW-3 on 24.1.1984 at 3.30 pm. The following ante-mortem wounds/injuries were found on the dead body of Long Shree. 1. Bed sore 8" diameter x bone deep (septic) on sacral region and lower leulic bones are visible. 2. Bed sore 3" diameter x bone deep septic, on right thigh back. The cause of death was said to be Hypoprotic Neamia and septic bed sore. Expected time since death was described about one day. The post-mortem report is exhibit Ka-3. 9. As the investigation progressed, the Investigating Officer Hakim Rai, PW-6 besides recording statements of several witnesses including that of deceased Long Shree also prepared the site plan and many memos. The site plan has been proved as exhibit Ka-15. Copy of statement of Long Shree has been proved as exhibit Ka-14. He also took certain blood stained clothes in possession and sent the same for Forensic Laboratory, Agra for ascertaining presence of human blood on the clothes. The report dated 26.8.1985 from Forensic Laboratory, Agra is exhibit Ka-29 on record. 10. Relevant to mention that special report of this case crime number was sent to the higher authorities on 5.11.1983 at 7.05 hrs through Constable Daya Ram, reference of which has been noted in concerned GD No. 13 of the same date and proved on record as exhibit Ka-33. The constable who was sent to submit special report returned the very same day at 19.20 hrs. Entries regarding same has been noted in GD No. 43 of the same day which GD entry has been proved as exhibit Ka-34 on record. 11. The Investigating Officer after completing the investigation filed charge-sheet which is exhibit Ka-18. 12. Thereafter, the case was committed to the Court of Sessions for trial from where it was made over to the VII Additional Sessions Judge, Agra as S.T. No. 89 of 1985 for trial. The accused/appellants were heard on point of charge and prima facie ground was found existing for framing charge under Sections 302, 307, 323, 452/34 IPC. The charge was read over and explained to the accused in Hindi, who denied the charges and opted for trial. 13. The prosecution was asked to adduce its testimony whereupon prosecution produced in all as many as 11 witnesses. The charge was read over and explained to the accused in Hindi, who denied the charges and opted for trial. 13. The prosecution was asked to adduce its testimony whereupon prosecution produced in all as many as 11 witnesses. Brief reference of the same is as hereunder: 14. Hundi Lal, PW-1 is the first informant and the injured. Raghubar Dayal PW-2 is father of the first informant and injured also. Both the witnesses have been claimed to be eye-witnesses of the incident. Dr. Rajendra Kumar Gupta PW-3, conducted the post-mortem examination on the dead body of Diwan Singh on 4.11.1983 and also conducted post-mortem examination on the dead body of Long Shree wife of Raghubar Dayal on 24.1.1984 and has proved the same as exhibit Ka-2 and Ka-3 respectively. Dr. M.M.S.A. Khan PW-4, has proved the injury reports of Hundi Lal, Raghubar Dayal and Long Shree and has stated that he examined all the aforesaid injured on 4.11.1983 in the morning at 7.40, 7.45 and 7.55 hours respectively. Raj Kumar Sharma PW-5, prepared the inquest report of Diwan Singh on 4.11.1983 and also prepared the memo exhibits Ka-11 and Ka-12. Hakim Rai PW-6 is the Investigating Officer, he has detailed in his testimony the various steps he undertook for completing the investigation and filing of the charge-sheet (Exhibit Ka-18). Constable Brij Mohan Gautam PW-7, has prepared the inquest report of Long Shree on 24.1.1984 at 6.00 a.m. and has handed over the dead body to constable Hakim Singh for sending the same for post-mortem examination. Constable Giri Raj Singh PW-8, has proved fact regarding the clothes of injured being conveyed to Forensic Laboratory, Agra on 1.12.1983. Megh Shyam Mutaina PW-9, has prepared inquest report of deceased Diwan Singh and facilitated post-mortem examination of deceased Diwan Singh. Shyam Bihari Singh PW-10, has informed about the preparation of inquest report of Long Shree after receiving information of her death on R.T. Set and has proved the concerned GD entry as exhibit Ka-21, he also facilitated sending of body of Long Shree for post-mortem examination and preparation of several papers. Besides he has proved inquest report of Long Shree as Exhibit Ka-22. Jai Prakash Upadhyaya PW-11, head constable, has taken down contents of oral information given by injured informant Hundi Lal as exhibit Ka-1 (F.I.R.). He also proved relevant entries regarding the same as exhibit Ka-30. Besides he has proved inquest report of Long Shree as Exhibit Ka-22. Jai Prakash Upadhyaya PW-11, head constable, has taken down contents of oral information given by injured informant Hundi Lal as exhibit Ka-1 (F.I.R.). He also proved relevant entries regarding the same as exhibit Ka-30. He also sent special report of the case crime through constable Daya Ram on 5.11.1983 and has proved the same as exhibit Ka-33 and Ka-34 respectively. 15. Thereafter, evidence for the prosecution was closed and statement of the appellant was recorded under Section 313 Cr.P.C. Wherein he has stated that his implication is false on account of enmity. Defense did not lead any evidence on its part. 16. The learned trial Court after hearing both the parties on merit, passed the aforesaid judgment and order of conviction dated 18.9.1986 and thereby imposed aforementioned sentences under Section 302, 307 and 452 IPC. 17. Consequently, this appeal. 18. It has been vigorously urged on behalf of the appellant that entire story is cooked up and the appellant has been falsely implicated in this case on account of enmity and village parti-bandi. Neither the incident has been proved nor proved to have been committed by the appellant even in the least. There was no occasion for the appellant to commit the crime as alleged. More so, assuming it to be that some offence was committed even then the role of the appellant is separable from the role of co-accused Ram Prasad who alone was stated to be the author of the injuries caused on the complainant side. FIR is ante-timed. There is no independent witness to the fact of incident and conviction cannot be made by invoking ingredients of Section 34 of IPC. No common intention is shared by the appellant with Ram Prasad. 19. Learned counsel for appellant, in support of his claim on point of absence of common intention has placed reliance on the case of Jai Bhagwan v. State of Haryana, LAWS (SC)-1999-2-74, decided on February 09, 1999. The case of the appellant, at the most, will fall under Section 323 IPC only. 20. Learned AGA has vehemently opposed the aforesaid contention and claimed that in this case the testimony of both the injured witnesses is clinching and fair enough to inspire confidence in prosecution case. The injured have been medically examined soon after the incident at the Government Hospital. 20. Learned AGA has vehemently opposed the aforesaid contention and claimed that in this case the testimony of both the injured witnesses is clinching and fair enough to inspire confidence in prosecution case. The injured have been medically examined soon after the incident at the Government Hospital. The source of light is amply proved, it being festival of Diwali on the fateful day, obviously the mud lamp/diya were lighted in and around the house where the incident took place and also to the place where Diwan Singh was given fatal assault and killed by the assailants. The manner, style and the gesture of perpetrators was one to cause injury on the informant side and to cause death in furtherance of common intention of both the appellants. Common intention is profusely discernible from participation of the appellant in the incident itself and from the circumstances established in this case. In this case prevalence of common intention is sufficiently noticed by particular fact that the appellant facilitated fatal assault being caused on both the deceased when he caught Diwan Singh and consequently Diwan Singh was given knife blows by his father. Further he participated in causing injuries on Long Shree when he gave blow on her head by using rear side of country made pistol. Both the appellants are father and son by relation and both had only one motive to wreck vengeance on the informant and his family, as 4-5 days prior to the incident, daughter of Ram Prasad, a co-villager had eloped and Ram Prasad and Ram Sewak suspected hand of informant and his family in her elopement. 21. Also considered the rival submissions. 22. Submissions so made on behalf of both the sides, the point for determination arises as to whether the prosecution has successfully proved the charges against the appellant beyond reasonable doubt and case of appellant does not attract principle of common intention, and the responsibility of the appellant is confined to Section 323 IPC only? 23. At the outset, we notice from the perusal of FIR that the very motive for committing the crime has been alleged to be elopement of daughter of accused Ram Prasad (since deceased) 4-5 days prior to the incident and Ram Prasad suspected hand of first informant side in the very act of elopement. This motive has been specifically mentioned in the oral report (exhibit Ka-1) of Hundi Lal. This motive has been specifically mentioned in the oral report (exhibit Ka-1) of Hundi Lal. Testimony has come forth from Hundi Lal, injured PW-1 to the same effect that prior to 4-5 days prior to the incident the daughter of Ram Prasad had gone some where and Ram Prasad and his family suspected hand of informant side in the episode. It has been categorically stated in the testimony of Hundi Lal that a report regarding abduction had been lodged against the informant side at the police station. The same version regarding elopement being motive has been affirmed by another injured witness father of the first informant Raghubar Dayal (PW-2). Defence has no where denied this particular fact specifically nor has put any suggestion that no such elopement or abduction of his daughter or sister respectively ever took place. Question No. 2 asked under Section 313 Cr.P.C. specifically on the same point regarding abduction and elopement of daughter of Ram Prasad was answered in the negative, however, no reasonable explanation/statement has been given that no such incident has taken place. Thus, cumulative scrutiny of unimpeachable testimony of both witnesses (PW-1 and PW-2) of fact reasonably establishes the very motive alleged as an incentive for committing the crime. 24. It is true that in cases under judicial scrutiny where direct testimony has come forth, motive part becomes insignificant, but in this case at hand, the motive is well established. Now we may scrutinize and appraise testimony of the two injured eye-witnesses regarding truthfulness of the occurrence or otherwise. Obviously, contents of FIR in so far as it narrate the incident allege that the incident was caused on 4.11.1983 at 6.00 pm when the sun had set in, informant alongwith his parents, brother and sister was sitting under thatched roof in his house. It was festival of Diwali, mud/clay lamps were lighted due to which there was sufficient light. The main door of the house was open, in the meanwhile, both the culprits Ram Prasad and Ram Sewak possessing knife and country made pistol in their hands entered into the house and caught the first informant Hundi Lal and began to assault him, he somehow extricated himself and climbed upon the roof of his house. The assailants then started assaulting Raghubar Dayal and his wife. The assailants then started assaulting Raghubar Dayal and his wife. As soon as, this was going on, informant’s brother Diwan Singh came out of the house and ran away, he was chased and caught near the house of Ram Ji Lal at a distance of about 15-20 paces by the accused persons. Ram Sewak overpowered him while Ram Prasad caused knife blows to him. Informant’s brother succumbed to his injuries in a little while on the spot. Alarm was raised but no one came to their rescue out of fear of assailants. However, the assailants made their escape good after commission of crime. Thereafter, parents of the first informant went to the hospital and first informant went to lodge oral report at police station Firozabad South, District Agra. 25. In this factual background as appearing in the FIR, we also come across the injury reports of the two witnesses (PW-1 and PW-2). A brief reference of the same is pertinent. Hundi Lal was examined at 7.40 pm at SNM Hospital wherein one Incised wound 3 cm x 1 cm x bone deep was found present over the left side of back 6 cm below the left Iliac crest posteriorly. Margins were clean cut tapering towards the mid line. The wound was bleeding and gaping. In the opinion of doctor (PW-4)this injury was caused by some sharp edged pointed object. Duration was stated to be fresh. This injury report is exhibit Ka-4. Similarly Raghubar Dayal was also examined at 7.45 pm wherein the doctor found four injuries on his person. Injury No. 1 was Incised wound 2 cm x 5 cm x muscle deep on left side deltoit region. The wound was bleeding and gaping. Margins were clean cut, Tapering towards outer side; injury No. 2 Stabbed wound 2.5 cm x 0.5 cm x thoracic cavity on left side near Axillary line 8 cm outer to the left nipple. The wound was bleeding and gaping. Margins were found clean cut; injury No. 3 Incised wound 1 cm x 0.3 cm x muscle deep on right side of back 8.5 cm below inforior angle of right side scapula. The margins were found clean cut. Wound was gaping and tapering below. It was bleeding also and injury No. 4 Abrasion 3 cm x 1 cm, 2 cm away from injury No. 3 towards outside. Injuries No. 1, 3 and 4 were simple. The margins were found clean cut. Wound was gaping and tapering below. It was bleeding also and injury No. 4 Abrasion 3 cm x 1 cm, 2 cm away from injury No. 3 towards outside. Injuries No. 1, 3 and 4 were simple. Injury No. 2 was kept under observation. Injuries No. 1, 2 3 were said to be caused by sharp edged pointed weapon. Injury No. 4 was stated to have been caused by friction. Duration of the injuries was noted fresh. This injury report of Raghubar Dayal is exhibit Ka-5 on record. 26. Upon careful scrutiny of record, we come across the injury report of Long Shree wife of Raghubar Dayal who was also medically examined at 7.55 p.m. on 4.11.1983 at the same hospital wherein she suffered three injuries on her person. Injury No. 1 was Lacerated wound 2.5 cm x 0.5 cm x scalp deep on left parieto occipital region 4 cm above the left ear. The wound was bleeding; Injury No. 2 was Incised wound 1.5 cm x 0.3 cm x cavity deep on the left side of back, 1 cm away from scapula. Margins were found clear cut tapering towards the middle line. Wound was found gaping and bleeding and injury No. 3 was found to be Lacerated wound measuring 2 cm x 0.5 cm. Muscle deep present over the posterior aspect of lower third of right forearm. It was also bleeding. Injuries No. 1 and 2 were kept under observation. Injury No. 3 was simple. Injuries No. 1 and 3 were stated to have been caused by some blunt object while injury No. 2 was caused by some sharp edged pointed object. Duration fresh. 27. Now we may ponder over and appraise factual merit of the incident as deposed by the injured eye-witnesses PW-1 and PW-2. Hundi Lal PW-1 has testified that the incident took place two years one month ago around 6.00 pm, it was Diwali festival on that day, he was living in village Humayupur within police station Firozabad South with his parents, brothers, and sisters. He and his family members were sitting at that point of time under thatched roof of his house, a lamp was also lighted there, mud/clay lamps were also lighted inside and outside the house because it was Diwali festival. He and his family members were sitting at that point of time under thatched roof of his house, a lamp was also lighted there, mud/clay lamps were also lighted inside and outside the house because it was Diwali festival. The main door of the house was open at that time Ram Sewak and Ram Prasad arrived on the spot, both are son and father (respectively), Ram Sewak was possessing country made pistol and Ram Prasad was possessing knife in his hand. Ram Sewak caught this witness (Hundi Lal) and Ram Prasad assaulted him with knife. This witness somehow saved himself and climbed upon the roof of his house. Thereafter the culprits assaulted his parents. Ram Prasad assaulted with knife and Ram Sewak gave blow on the head of his mother by the rear side of his country made pistol. In the meanwhile, informants younger brother Diwan Singh came out of the house and ran away, he was chased and caught by the culprits near the house of Ram Ji Lal Khatik at a distance of 15-20 paces, Ram Sewak physically overpowered him and Ram Prasad gave knife blows to him. Alarm was raised by him but no one came on the spot due to fear. Ram Sewak also shot one fire. The assailants made their escape good. The first informant went up to the spot where Diwan Singh was lying but Diwan Singh died soon after. The same graphic version of the incident has emerged from the testimony of Raghubar Dayal PW-2, the same need not to be repeated as his testimony regarding the occurrence virtually tallies and corroborates with testimony of PW-1 Hundi Lal in material particulars. It has been suggested by the defense to PW-1 that it being Diwali festival, gambling was going on in his house where some quarrel took place and this false case has been framed against the appellants. It has been pointed out in the testimony of PW-2 Raghubar Dayal that the Investigating Officer made memo of blood stained clothes of Hundi Lal and Long Shree and of himself. He has stated that he and his wife remained in hospital for 4-5 days, condition of his wife was serious, therefore, he came to Agra for treatment where she remained under treatment for 5-6 days, but the doctor denied improvement in her condition, then, he took his wife back home. He has stated that he and his wife remained in hospital for 4-5 days, condition of his wife was serious, therefore, he came to Agra for treatment where she remained under treatment for 5-6 days, but the doctor denied improvement in her condition, then, he took his wife back home. At home he gave sufficient treatment to his wife but his wife died 2-2 ½ months after the incident due to the injuries sustained by her. He has been put question in his cross-examination as to why he took his wife back home, whereupon he answered that doctor told him that condition of his wife will not improve. He has stated that some doctor of Dugna village gave treatment to his wife at his home. His wife died in village Sakini. He has also stated that he gave information of death to police station Khairgarh. In this context we may also take into account testimony of Shyam Bihari Singh, S.I. PW-10, his testimony also reflects about the information being given to him or police station on R.T. Set on 23.1.1984. This witness (PW-10) has stated that he was posted as S.I. at P.S. Khairgarh on 23.1.1984, he received information from police station Firozabad South on R.T. Set about death of Long Shree whereupon he alongwith constable Brij Mohan Gautam, Hakim Singh and Gopi Chandra proceeded to the place of death. The proceedings were noted down in GD Rapat No. 20 at 17.30 hrs on 23.1.1984. Copy of GD has been proved as exhibit Ka-21. This witness prepared the inquest report of Long Shree at village Sakini and has proved the same as exhibit Ka-22. The body of Long Shree was sent for post-mortem examination to Agra where post-mortem examination was conducted on 24.1.1984 at SNM Hospital, Firozabad, Agra at 3.30 pm. Doctor found two wounds on the body, one Bed sore 8" diameter x bone deep (septic) on sacral region and lower waist bones visible and second one as Bed sore 3" diameter x bone deep septic, on right thigh back. The cause of death was said to be hypoprotic neamia and septic Bed sore and it has been stated that both these wounds occur due to confinement to bed and in case the sore are not taken proper care the same may develop septic. 28. The cause of death was said to be hypoprotic neamia and septic Bed sore and it has been stated that both these wounds occur due to confinement to bed and in case the sore are not taken proper care the same may develop septic. 28. Obviously as per testimony of PW-2, Long Shree was given treatment at Agra but the doctor told to this witness that her condition will not improve therefore, Raghubar Dayal, PW-2 took his wife Long Shree back home and gave some treatment there of another doctor. But in 2- 2 ½ months Long Shree developed bed sore which in turn became septic and consequently the death. This injury report of Long Shree dated 4.11.1983 (Exhibit Ka-6) at the same hospital (SNM Hospotal) combined with statement of PW-2 and testimony of Dr. Rajendra Kumar Gupta on point of cause of death establishes nexus of death with the injury caused to Long Shree on 4.11.1983 at 6.00 pm. This fact of injury being caused on 4.11.1983 and death due to septic has not been challenged even in the least by the defense. Thus fact of injury being caused to Long Shree on 4.11.1983 and her consequent death on 23.1.1984 is reasonably proved. It would be relevant to refer to the testimony of Dr. M.M.S.A. Khan who examined Long Shree wife of Raghubar Dayal at 7.55 pm on 4.11.1983, has categorically stated that these injuries can be caused on 4.11.1983 about 6.00 pm and these injuries can be caused by knife. These pieces of specific testimony remained unchallenged by the defense. Therefore, the incident regarding assault being caused by the present appellant stands reasonably proved. We have also before us unassailed testimony of assault being caused on Diwan Singh by conjoint participation in the incident of the appellant resulting into death of Diwan Singh in a little while after the assault. 29. Now point for consideration arises whether existing circumstances if applied with manner and style of commission of offence reasonably prove existence of common intention on the part of the appellant (Ram Sewak) particularly to the point whether he was aware of the nature of the offence being committed and whether he knowingly, of his free will participated in the incident and acted in facilitating commission of the crime. Obviously both the culprits stand in father-son relationship. Obviously both the culprits stand in father-son relationship. Present appellant Ram Sewak is the son and Ram Prasad (now deceased) was father. His father caused knife blows to all the injured and to the two deceased persons Diwan Singh and Long Shree. The very manner of assault being caused itself speaks of pre conceived plan reflects premeditation and prior meeting of mind between the two assailants. The motive for the incident has been well proved. The motive was to cause harm to the informant side and to wreck-vengeance. Both the culprits were armed with deadly weapons. Ram Prasad was armed with knife and Ram Sewak was armed with country made pistol. It is true that he did not cause any fire-arm injury, but arrived in company of his father, he physically overpowered Hundi Lal so that Ram Prasad may cause knife blow on Hundi Lal. Both the culprits succeeded to some extent, in causing knife blows to Hundi Lal but both did not succeed to kill him because Hundi Lal somehow extricated himself from their clutches and climbed upon his roof. Thereafter both the assailants assaulted the parents of the first informant which includes his mother Long Shree who died later on due to the injuries caused on her person. As soon as younger brother of first informant namely Diwan Singh rushed out of the house he was chased by both the assailants and was caught by none other than the present appellant Ram Sewak and consequently Ram Prasad succeeded in giving knife blow to him which blow proved fatal and Diwan Singh died after a short while on the spot. This manner and style of the incident has been well proved by the testimony of both the eye-witnesses and testimony of doctor witness (PW-3) also corroborates the same in material particulars. We may appropriately observe that both the culprits intended to cause hurt and both connived with each other. Joint act of assault is self explanatory as gathered from circumstances and evidence on record. Here prior concert and pre-arranged plan is unambiguously the out turn. Can it be said that the present appellant was unaware of real intent of his father, the other co-accused? Certainly, the answer is in the negative. Joint act of assault is self explanatory as gathered from circumstances and evidence on record. Here prior concert and pre-arranged plan is unambiguously the out turn. Can it be said that the present appellant was unaware of real intent of his father, the other co-accused? Certainly, the answer is in the negative. Here the act of the appellant in physically overpowering Diwan Singh in order to facilitate knife blow being caused to him is indicative of the mind and intent of the appellant that he shared common intention with his father and acted in furtherance of the same. At this stage, both the assailants are found to be sharing common intention, and the circumstances so established make out a stronger case under Section 34 IPC which reads as under: Section 34.—Acts done by several persons in furtherance of common intention.—When 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. 30. Then how can it be said that present surviving appellant Ram Sewak was not aware of the nature of assault, its extent and its outcome. Certainly, things cannot be explained away merely by putting arguments that Ram Sewak did not cause any fire-arm injury. The injury caused by father of Ram Sewak assumes nomenclature of joint and common intention of both the culprits in furtherance of their criminal act, then the act done by Ram Prasad and the assistance given by Ram Sewak in the commission of that offence will vicariously carry equal penal liability for both the perpetrators. 31. Therefore, contention raised to the extent that ingredients of common intention are not attracted in this case is on the face not acceptable. In so far as the aforesaid citation of Jai Bhagwan (supra) is concerned here under the facts and circumstances of that case it was discovered by Hon’ble Apex Court that the common intention to commit the crime was absent only on the part of one of the appellants. Although the Apex Court observed that in every case it is not possible to have direct evidence of common intention. It has to be inferred from the facts and circumstances of each case. 32. Although the Apex Court observed that in every case it is not possible to have direct evidence of common intention. It has to be inferred from the facts and circumstances of each case. 32. Here in the aforesaid case (Jai Bhagwan v. State of Haryana, LAWS (SC)-1999-2-74), the plea of the appellant was based on exercise of right of private defence to property which is not factually the case in hand. The land involved in the above cited case was basically owned by accused and was so declared by the decree of Civil Court in Suit No. 676 of 1984 dated 17.7.1984. The deceased and his brother challenged the validity of the said decree in Civil Suit No. 692 of 1984 which was dismissed and the accused were put in possession pursuant to partition of the land by the Assistant Collector, though the deceased and his sons were found to have been in possession and cultivation of the said land for the last 30 years. The High Court recorded that the occurrence took place in the land in possession of the appellants. The deceased were in possession of the land and they went to irrigate the same and they told accused side that he would have the turn of water and irrigate the land after settlement of dispute they can do it, but this was objected to by the accused, he insisted that matter will be settled right now and started abusing the deceased and during the altercation Smt. Parwati mother of one of co-accused exhorted him to give a blow on the vertex to bring them to senses and under control then one of the accused armed with Ballam dealt a blow on the head of deceased, another accused gave knife blow on the face of the deceased. Thereafter, the deceased fell down. While he was lying down another accused dealt blow with Gandasi and the others caused several injuries on his body. In the process PW-5, PW-8 and PW-6 were also injured and one of the accused was found responsible for causing injuries on PW-6. On considering the evidence of eye-witnesses and the entire circumstances, the trial Court negatived plea of self defence and recorded conviction against accused Nos. 1 and 3 under Section 302/34 IPC and imposed sentence for life imprisonment with fine of Rs. On considering the evidence of eye-witnesses and the entire circumstances, the trial Court negatived plea of self defence and recorded conviction against accused Nos. 1 and 3 under Section 302/34 IPC and imposed sentence for life imprisonment with fine of Rs. 20,000/- and convicted accused No. 2 under Section 307 IPC with rigorous imprisonment for seven years and with fine of Rs. 2,000/-. The matter went in appeal before High Court of Punjab and Haryana. The High Court set aside the conviction and sentence under Section 302/34 IPC and convicted A-1 and A-3 under Section 304 Part-I read with Section 34 IPC and sentenced them to 7 years rigorous imprisonment and altered the conviction of accused No. 2 to one under Section 326 IPC and sentenced him to rigorous imprisonment for 3 years. High Court passed its order on 28.1.1998. The matter went up to the Apex Court. Plea of self defence of property was raised before the Apex Court. The Apex Court under facts and circumstance observed that “................it is clear that the action of the deceased and his sons coming to the land in possessionof the accused group was to irrigate the land, which, on the facts of this case, could only amount to criminal trespass within the meaning of Section 441 IPC. The right of the accused-appellants, therefore, extended only to causing of harm other than death.” Plea of right of private defence to property on behalf of A-1 and A-3 is not sustainable because they caused the intended assault and it was not a free-fight, therefore, they are not entitled to protection of Section 104 IPC. But for the fact that they exceeded right of self defence of property under Section 104 IPC the offence committed by them would have been one under Section 302 IPC. Participation of accused No. 2 was found separate and not in line with accused Nos. 1 and 3. The Apex Court confirmed the verdict of High Court and found it justified that accused Nos. 1 and 3 were convicted under part 1 of Section 304/34 and the sentence was reduced from seven years to five years. In so far as the accused No. 2 was concerned the Apex Court observed that he was within his right to protect the possession of land and he acted within limit of Section 104(3) IPC and acquitted him. 1 and 3 were convicted under part 1 of Section 304/34 and the sentence was reduced from seven years to five years. In so far as the accused No. 2 was concerned the Apex Court observed that he was within his right to protect the possession of land and he acted within limit of Section 104(3) IPC and acquitted him. Therefore, the facts of the aforesaid case are very much distinguishable with the present case. There is no point for exercise of right of private defence on the part of present appellant. More so, in the present case, both the culprits have strong motive, both arrived on the place of occurrence armed with deadly weapons and in the opinion of doctor the injuries so caused on the person of injured and the body of deceased are sufficient in ordinary course of nature to cause death. Here, in the case in hand, common intention and participation of the present appellant in the crime right from the very beginning up to the very end of the criminal act has been proved beyond reasonable doubt. 33. Regarding prevalence of common intention worthy observation has been made in para 5 of the judgment referred to above (Jai Bhagwan v. State of Haryana). Para 5 of the judgment is extracted herein below: “To apply Section 34 IPC apart from the fact that there should be two or more accused, two factors must be established: (I) common intention, and (ii) participation of the accused in the commission of an offence. If common intention is proved but no overt act is attributed to the individual accused, Section 34 will be attracted as essentially it involves vicarious liability but if participation of the accused in the crime is proved and common intention is absent, Section 34 cannot be invoked. In every case it is not possible to have direct evidence of common intention. It has to be inferred from the facts and circumstances of each case.” 34. The rest of the witnesses are formal witnesses. The Investigating Officer, the constable and their testimony in the wake of aforesaid testimony coming forth on the point of occurrence is not so vital. However, their testimony to a great extent corroborates and establishes prosecution case against the appellant beyond reasonable doubt. The rest of the witnesses are formal witnesses. The Investigating Officer, the constable and their testimony in the wake of aforesaid testimony coming forth on the point of occurrence is not so vital. However, their testimony to a great extent corroborates and establishes prosecution case against the appellant beyond reasonable doubt. Whatever contradictions and anomaly occur in testimony of witnesses, the same is not substantial but of trivial nature and does not hit at the root of prosecution case. Thus, in this case the appellant is vicariously liable for the act of another co-accused-his father-on account of their sharing common intention to commit the intended crime. 35. Learned lower Court while appreciating, facts and circumstances and evidence on record has taken wholesome view of the incident and has rightly recorded the conviction and imposed sentence on the present appellant and the present appellant is guilty of sharing common intention and participating in the crime and his participation to all intents and purposes facilitated the very commission of crime by catching hold of the injured Hundi Lal and then deceased Diwan Singh. Consequently, the graphic version of the incident is clinching, credit-worthy and inspiring confidence. 36. The impugned judgment and order of conviction and sentence dated 18.9.1986 passed by VII-Additional Sessions Judge, Agra, in Sessions Trial No. 89 of 1985 arising out of Case Crime No. 602 of 1983, under Sections 302, 307 and 452 I.P.C., Police Station Firozabad South, district Agra, is upheld. Consequently, the instant criminal appeal being devoid of force is dismissed. 37. In this case, the surviving appellant Ram Sewak is on bail. His personal bond is cancelled and sureties discharged. He be taken into custody forthwith and lodged in jail for serving out the remaining sentence imposed upon him by the trial Court. 38. Let a copy of this order be certified to the Court concerned for information and necessary follow up action.