JUDGMENT Hon’ble Dr. Vijay Laxmi, J.—Appellants, namely, Mangli, Kishan Lal and Kunwar Sen call in question the legality of the judgement rendered by Vth Additional Sessions Judge, Bareilly in S.T. No. 531 of 1981 whereby all the three accused persons faced trial for allegedly causing homicidal death of one Makrand (hereinafter referred to as ‘deceased’). All the three accused persons faced trial for the offence punishable under Section 302 read with Section 34 of Indian Penal Code, 1860 (for short “I.P.C.”). They were found guilty of the charged offence. The sentence of life imprisonment was imposed for the said offence. The appellants Mangli and Kishan Lal A-1 and A-2 respectively died during the pendency of appeal and the appeal was abated against them vide order dated 11.1.2013 of this Court. 2. The prosecution version as unfolded during trial is that the complainant Munshi Lal and his brothers Makrand, Prem Pal and father Dharm Das were cultivating opium since long for which they had license. The accused Mangli, Kishan Lal and Kunwar Sen belonged to same village who were engaged in smuggling of opium. They were all friends and asked the complainant and his family members to supply opium to them for smuggling it. But the complainant and his family members hated black marketing of opium. Moreover, they had no surplus opium thus they refused to supply opium to the accused. The accused thus used to bear enmity with them on this ground. Sohan, Son of Mangli was arrested by the police alongwith 2 kg of opium in December 1980 on the complaint of complainant Munshi Lal. Since then, their relations became more inimical. The accused persons challenged them that they will not let the informant and his family members live in their village. About 12 days before the occurrence, when the complainant Munshi Lal was returning to his village from Aonla, he was encircled by the three accused at about 6:30 p.m. near godown of Ram Sewak. The accused persons tried to drag Munshi lal towards field and started beating him. He was saved by Moti Lal and Bhojpal, who reached the spot on listening his outcry. Munshi Lal told about this incident to his father and brothers same evening on reaching his house. The accused persons tried to drag Munshi lal towards field and started beating him. He was saved by Moti Lal and Bhojpal, who reached the spot on listening his outcry. Munshi Lal told about this incident to his father and brothers same evening on reaching his house. Thereafter his brother Makrand went to the house of Mangli to make a complaint of it where all the accused were present and an altercation took place between them. The accused threatened to kill him and his family members. On the date of occurrence, the complainant, his brother Makrand and Ahbaran had gone for irrigating their fields from tube well. The complainant and Ahbaran were watering their fields while his brother Makrand slept in nearby vacant field of Sukhe on a rajai. In the meantime, they heard outcry of his brother near about at midnight. They rushed towards Makrand and saw in the moon light as well as in the light of their torches, that the accused Kishan Lal with knife, Mangli with Tabal were present on the spot and inflicting stab wounds on Makrand with their knife and Tabal. The accused were talking to kill Makrand due to hindrances created by him in their smuggling operation of opium. Seeing them, the accused fled away towards jungle in the East. Fakeeri and Siyaram of their village also reached the spot and saw the incident. Makrand died on the spot due to injuries caused by the accused. The complainant left Ahbaran and Chowkidar on the spot and went to the police station alongwith Uncle Bhimsen and Pradhan Jai Lal. 3. The agricultural land of the informant was situated towards the west of the said field of Sukhe which was divided into three portions. The paddy crop was standing in the middle portion of the land which belonged to the informant Munshi lal. The tube well of the complainant was situated about 150 yards from his field towards southern side. At first, the accused Kishan Lal had inflicted injuries by knife blow to Makrand. Thereafter, the accused Mangli had given one or two blows of Tabal on Makrand. On being challenged, the accused persons fled towards the East. The rajai on which Makrand was lying became blood stained and lot of blood fell on the ground also. The village Chowkidar reached there after the occurrence. Thereafter, the accused Mangli had given one or two blows of Tabal on Makrand. On being challenged, the accused persons fled towards the East. The rajai on which Makrand was lying became blood stained and lot of blood fell on the ground also. The village Chowkidar reached there after the occurrence. Ahbaran and Chowkidar were left near the body while the informant went to the village alongwith Siya Ram. The First Information Report Exhibit Ka-1 was dictated by informant which was scribed by Siya Ram. First Information Report was lodged at Police Station at about 2:30 a.m. According to the prosecution, the witness Siya Ram and Fakeeri were won over by the accused and they were not produced by the prosecution. 4. The dead body was sent to Bareilly for post-mortem. It was conducted by Dr. P.K. Das who prepared post-mortem report (Ex. Ka-3). The case was investigated by S.I. Sampat Singh who recorded the statement of witnesses, prepared site plan (Ex. Ka-8) of the place of occurrence and had submitted charge-sheet (Ex. Ka-12) against the accused persons. The charge was framed against accused Kishori lal, Mangli and Kunwar Sen for offence punishable under Section 302 IPC, read with Section 34 I.P.C. The accused persons denied the charges and alleged that they were falsely implicated in this case due to enmity. The accused Mangli further stated that Makrand was murdered by his brother. 5. In the instant case, the occurrence is alleged to have taken place in the intervening night of 17.9.1981 and 18.9.1981. The First Information Report was lodged at 2:30 a.m. the same night at the police station which was about four miles away from the place of occurrence. 6. The trial Court noticed that two witnesses to the occurrence namely, P.W.1 and P.W.2 were examined. These two witnesses were real brothers of the deceased. The trial Court on analyzing the evidence came to hold that three accused were guilty and convicted each of the accused in terms of Section 302 read with Section 34 IPC. Accordingly, each of the accused was sentenced to undergo life imprisonment. 7. In support of the appeal, learned counsel for the appellants submitted that the FIR was ante time. The post-mortem was conducted after 39 hours of the occurrence and post-mortem report was highly belated. Accordingly, each of the accused was sentenced to undergo life imprisonment. 7. In support of the appeal, learned counsel for the appellants submitted that the FIR was ante time. The post-mortem was conducted after 39 hours of the occurrence and post-mortem report was highly belated. The dead body was allegedly given in the custody of Constable Prahlad Singh(P.W.3) on 18.9.1981 at about 8:00 a.m. but it was handed over in mortuary on 19.8.1981 and not on 18.9.1981. It was to be noticed that the dead body was taken by said Constable to the police station on 18.9.1981 at about 4:00 p.m. as stated by him. The prosecution alleged presence of four eye-witnesses on the spot but only two persons were examined, who were real brothers. Thus, the witnesses were the interested witnesses and independent witnesses were withheld. Moreover, there were material contradictions in their statements. Thus their statements were not trustworthy and could not be relied upon. 8. It is further argued that the appellant A-3 was convicted by application of Section 34 IPC. P.W.1, Munshi Lal stated that he saw A-3 caught hold of deceased and Mangli and Kishan Lal were assailants who inflicted injuries on the person of the deceased by Tabal and knife respectively. While P.W.2 Ahbaran Singh admitted in cross-examination that one accused was sitting on the legs of the deceased whose face was not towards P.W.2. This led to the inference that this witness could not identify A-3. The prosecution says that there were three accused on the spot. Evidently P.W.2 Ahbaran Singh stated contrary to it. He stated that the persons were present on the northern, southern and western sides of the deceased. One was sitting near his head and one accused had caught hold of Makrand. Thus, according to the P.W.2 there were five accused on the spot which is not the case of the prosecution. It is not the prosecution case that A-3 had any weapon with him. A-3 is not named by either witness to be an assailant. 9. It is further contended that alleged motive to kill the deceased was that he created hindrances in the smuggling of opium. But P.W.1 admitted that A-3 was never involved in smuggling of opium, nor P.W.1 made any complaint of A-3 to the officers. 10. A-3 is not named by either witness to be an assailant. 9. It is further contended that alleged motive to kill the deceased was that he created hindrances in the smuggling of opium. But P.W.1 admitted that A-3 was never involved in smuggling of opium, nor P.W.1 made any complaint of A-3 to the officers. 10. It is further contended that A-3 caught hold of the deceased at mid night when he was fast asleep. It is argued that there was no need for A-3 of catching hold of the deceased under such circumstances. Two accused A-1 and A-2 being equipped with knife and Tabal would have killed the deceased in no time. Learned counsel submitted that A-3 had been wrongly convicted by the application of Section 34 IPC. It is contended that the presence of A-3 and/or his participation has not been proved. Had there been pre planning to kill the deceased, A-3 would not have taken the risk of going to the spot bare handed. 11. Before dwelling into the evidence on record and addressing the rival contentions made by the parties, it would be appropriate here to reiterate the precise nature, purpose and scope of Section 34 IPC. In Girija Shankar v. State of U.P., (2004) 3 SCC 793 , Hon’ble Supreme Court, while bringing out the purpose and nature of Section 34 IPC observed in para 9, as follows: “9. Section 34 has been enacted on the principle of joint liability in the doing of a criminal act. The section is only a rule of evidence and does not create a substantive offence. The distinctive feature of the section is the element of participation in action. The liability of one person for an offence committed by another in the course of criminal act perpetrated by several persons arises under Section 34 if such criminal act is done in furtherance of a common intention of the persons who join in committing the crime. Direct proof of common intention is seldom available and, therefore, such intention can only be inferred from the circumstances appearing from the proved facts of the case and the proved circumstances. Direct proof of common intention is seldom available and, therefore, such intention can only be inferred from the circumstances appearing from the proved facts of the case and the proved circumstances. In order to bring home the charge of common intention, the prosecution has to establish by evidence, whether direct or circumstantial, that there was plan or meeting of minds of all the accused persons to commit the offence for which they are charged with the aid of Section 34, be it pre-arranged or on the spur of the moment; but it must necessarily be before the commission of the crime. The true concept of the section is that if two or more persons intentionally do an act jointly, the position in law is just the same as if each of them has done it individually by himself. As observed in Ashok Kumar v. State of Punjab, the existence of a common intention amongst the participants in a crime is the essential element for application of this section. It is not necessary that the acts of the several persons charged with commission of an offence jointly must be the same or identically similar. The acts may be different in character, but must have been actuated by one and the same common intention in order to attract the provision.” 12. In Vaijayanti v. State of Maharashtra, (2005) 13 SCC 134 , Hon’ble Supreme Court, observed in para 9, as follows: “9. Section 34 of the Indian Penal Code envisages that “when a criminal act is done by several persons in furtherance of the common intention of, each of such persons is liable for that act, in the same manner as if it were done by him alone”. The underlying principle behind the said provision is joint liability of persons in doing of a criminal act which must have found in the existence of common intention of enmity in the acts in committing the criminal act in furtherance thereof. The law in this behalf is no longer res integra. There need not be a positive overt act on the part of the person concerned. Even an omission on his part to do something may attract the said provision. But it is beyond any cavil of doubt that the question must be answered having regard to the fact situation obtaining in each case.” (emphasis supplied) 13. There need not be a positive overt act on the part of the person concerned. Even an omission on his part to do something may attract the said provision. But it is beyond any cavil of doubt that the question must be answered having regard to the fact situation obtaining in each case.” (emphasis supplied) 13. In Ashok Kumar v. State of Punjab, AIR 1977 SC 109 , it was observed by Hon’ble Supreme Court that the existence of a common intention amongst the participants in a crime is the essential element for application of this Section. It is not necessary that the acts of the several persons charged with commission of an offence jointly must be the same or identically similar. The acts may be different in character, but must have been actuated by one and the same common intention in order to attract the provision. 14. In Ch. Pulla Reddy and others v. State of Andhra Pradesh, AIR 1993 SC 1899 , it was observed by Hon’ble Supreme Court that Section 34 is applicable even if no injury has been caused by the particular accused himself. For applying Section 34 it is not necessary to show some overt act on the part of the accused. 15. Thus, the position with regard to Section 34 IPC is crystal clear. The existence of common intention is a question of fact. Since intention is a state of mind, it is therefore very difficult, if not impossible, to get or procure direct proof of common intention. Therefore, Courts, in most cases, have to infer the intention from the act(s) or conduct of the accused or other relevant circumstances of the case. However, an inference as to the common intention shall not be readily drawn; the criminal liability can arise only when such inference can be drawn with a certain degree of assurance. 16. With the aforesaid legal position in mind, we have considered the submissions made by the counsel for the parties and also scrutinized the evidence available on record before us. On a perusal of the evidence before us, we find that the evidence is not very specific as regards the presence and role played by A.3. 16. With the aforesaid legal position in mind, we have considered the submissions made by the counsel for the parties and also scrutinized the evidence available on record before us. On a perusal of the evidence before us, we find that the evidence is not very specific as regards the presence and role played by A.3. The evidence is not sufficient to draw an inference with certainty that A.3 would have accompanied bare handed to A.1 and A.2 who were carrying tabal and knife in their hands and facilitated murder by catching hold of person who was fast asleep at the dead of the night and in an unearthly hour. 17. It is more baffling, that the charge framed was common for all the accused persons. It reads as under: “That all of you in the intervening night of 17/18-09-1981 at about mid night in village Dhilvari within P.S. Aonla, District Bareilly, had formed a common intention to commit an offence, namely murder, in furtherance of which you Magli and Kishan Lal inflicted Tabal and knife injuries respectively to Makrand, resulting in the death of said Makrand an offence punishable under Section 302 of the I.P.C. and thereby all of you committed an offence punishable under Section 302 of the I.P.C. read with Section 34 of the I.P.C. and within the cognizance of this Court. And I hereby direct that you be tried by this Court on the said charge.” 18. It is not the case of prosecution that Appellant A.3 had any weapon. Additionally, in their evidence PW1 and PW2 have given contradictory versions about identification of Kunwar Sen A.3, his physical presence at the time of the incident and his role on the spot. It is thus clear that appropriate charge was not framed against Kunwar Sen A.3. The charge framed was totally defective. 19. Judged in the aforesaid background, the only inevitable conclusion permissible on the nebulous and suspect nature of the evidence let in would be that the prosecution has not established accusations against the appellant Kunwar Sen A.3 beyond reasonable doubt. The conviction of the appellant No. 3 by application of Section 34 IPC does not appear to be in order. In the result, The appeal filed by A.3 (Kunwar Sen) stands allowed. The bail bonds of accused Kunwar Sen who is on bail shall stand discharged because of his acquittal by this order. 20. The conviction of the appellant No. 3 by application of Section 34 IPC does not appear to be in order. In the result, The appeal filed by A.3 (Kunwar Sen) stands allowed. The bail bonds of accused Kunwar Sen who is on bail shall stand discharged because of his acquittal by this order. 20. The appeal is disposed of accordingly. 21. Sri Mewa Lal Shukla, amicus curiae in this appeal will get his fees Rs. 15000/- from U.P. State.