JUDGMENT : (Delivered by Hon'ble Krishna Murari, J.) This criminal appeal has been filed against the judgement and order dated 21.05.1983 passed by IVth Additional Sessions Judge, Mirzapur in Sessions Trial No. 26 of 1981 convicting and sentencing the accused-appellant Mithai Lal under Section 302 I.P.C. to imprisonment for life and accused-appellant Prem Bahadur under Section 302/34 I.P.C. to imprisonment for life. Further, accused-appellants Mithai Lal and Prem Bahadur have also been convicted and sentenced under Section 323/34 I.P.C. to undergo three months rigorous imprisonment. During pendency of the appeal accused-appellant Mithai Lal S/o Sarju had died and Criminal Appeal No. 1256 of 1983 filed by him, has been abated vide order dated 02.09.2016. Facts of the Case:- Prosecution story in brief is that on 28.12.1980 at about 08:00 P.M. Ram Jiyawan S/o Ram Adhin had gone to Auri Morh where accused-appellants Mithai Lal and Prem Bahadur had assaulted him. After this incident Ram Jiyawan came in the village and went to the house of the complainant Avadh Bihari S/o Jujhan,where Krishan Bihari (brother of the complainant), Ganga Ram S/o Ram Dulare and Jawahar Lal S/o Subedar were also sitting. Ram Jiyawan narrated the incident of scuffle (Marpeet) and the complainant along with others went to make protest at the residence of accused-appellants Mithai Lal and Prem Bahadur. At about 09:00 P.M., when they reached to the house of Mithai Lal, a gas lantern was alighted at the door and both accused were present there. When they were enquired by the complainant and others as to why they had assaulted innocent Ram Jiyawan both accused started assaulting with lathies as a result of which Jawahar Lal and Ram Jiyawan sustained injuries. Further, at that point of time accused-appellant Prem Bahadur instigated Mithai Lal and said for what purpose he was having Tamancha. On his exhortation Mithai Lal at once took out Tamancha from his room and opened fire on Krishan Bihari as a result of which he sustained fire arm injuries and fell down on the spot. The complainant and his companion tried to apprehend the accused persons but they ran away saying that if anyone followed them then they would be shot dead. The complainant and his companion tried to apprehend the accused persons but they ran away saying that if anyone followed them then they would be shot dead. It is also alleged in the F.I.R. that some of the pellets of Tamancha also caused injuries to Ganga Ram and further Krishan Bihari died on the way at Anpara Market when he was being taken to Renu Sagar Hospital for medical treatment. Thereafter, complainant Avadh Bihari sent the dead body of his brother to Police Chauki-Renu Sagar through Ram Jiyawan, Ganga Ram and Jawahar Lal and he went to the Police Station- Pipari for lodging the F.I.R. of the said incident. On the basis of written report Ex. KA1, chik F.I.R. Ex. KA2 was prepared and the same was registered as Case Crime No. 450, under Section 302, 307, 323 I.P.C. and its entry was made in the G.D. Copy of the G. D. is Ex. KA3. Analysis of Evidence:- Investigation of the case was conducted by Station Officer G. N. Pandey. Inquest report Ex. KA11 of the dead body and necessary documents like photolash Ex. KA14 and preserving seal Ex. KA12 were prepared. Thereafter, the sealed dead body was sent for post-mortem examination through constable Jagdish Singh and Ram Narayan Dubey alongwith necessary documents, prepared on the spot, to the Medical Officer, Incharge P. H. C., Dudhi. The post-mortem examination of the deceased Krishan Bihari was conducted by Dr. Mahendra Kumar Singh who found the following ante-mortem injuries on the dead body of the deceased Krishan Bihari:- 1. Gunshot wound of entry round in shape.25 cm in diameter going posteriorly and right side on the left abdominal wall near the midline of the abdomen and lower part. Bullet taken out from the vertebral. No wound of exit present laceration of abdominal organs blader bone. 2. Gunshot wound.5 cm X.25 cm oval in shape on the upper part of the left thigh, front-part edges averted, going down wards, inwards to the middle of the left thigh. Bullet taken out from the left forneur bone. 3. Gunshot wound.25 cm in diameter on the outer part of the left thigh, oval in shape. No wound of exit seen. Blackening and tattooing present. 4. Bullet taken out from the left forneur bone. 3. Gunshot wound.25 cm in diameter on the outer part of the left thigh, oval in shape. No wound of exit seen. Blackening and tattooing present. 4. Gunshot wound.25 cm in diameter circular in shape on the back part of the left forearm, middle part wound of exit present in the middle of the left forearm inner surface of.5 cm X.5 cm X abraded. The medical examination of the injuries of Ram Jiyawan, Chhotak, Ganga Ram and Jawahar Lal were conducted at the Primary Health Centre, Myorepur, District-Mirzapur. Their injury reports are Ex. KA-5 to Ex. KA-8. The injuries received by the said injured persons are given below:- Ram Jiywan:- 1. Contusion 8 cm X 1.5 cm over lateral aspect of left arm about 4 cm below shoulder joint. 2. Complaint of pain over right muscle area. Chhotak:- 1. Lacerated wound 1 cm X.5 cm X 1.5 cm about 4 cm below the left elbow joint over lateral aspect. Ganga Ram:- 1. Abrasion 1 cm X 1 cm over left knee joint. Jawahar Lal :- 1. Abrasion 3 cm X 1 cm over the post aspect of right fore hand about 7 cm above the right wrist joint. Investigating Officer made spot inspection and prepared the site plan Ex. KA-19. He also took the blood stained and sample of earth from the place of occurrence and kept it in two sealed tins and also recovered an empty cartridge and prepared a fard in respect thereof which is Ex. KA-17. On receiving information from informant, accused-appellant Mithai Lal was apprehended from Dibulganj Bus Stand and on his disclosure I.O. recovered the Tamancha Ex. 1 and prepared its fard Ex. KA-18. I.O. also prepared the site plan of the place of recovery which is Ex. KA-20. Later on the recovered Tamancha alongwith the empty cartridge was sent to the Ballistic Expert for his opinion. After completing investigation the Investigating Officer submitted the charge sheet Ex. KA-21 against the accused persons under Sections 302, 307, 323 I.P.C. The prosecution in support of its case examined PW1 Jawahar Lal, PW2 Ram Jiyawan, PW3 Chhote, PW4 Avadh Bihari, PW5 H. C. Ram Avadh Singh, PW6 Dr. N. P. Agrawal, PW7 Dr. M. K. Singh, PW8 Mohan Lal, PW9 I.O. Sri G. N. Pandey and PW10 Sri B. Rai, Ballistic Expert. N. P. Agrawal, PW7 Dr. M. K. Singh, PW8 Mohan Lal, PW9 I.O. Sri G. N. Pandey and PW10 Sri B. Rai, Ballistic Expert. After close of the prosecution evidence, the statement under Section 313 Cr.P.C. of accused persons were recorded by the trial Judge and in support of defence version Dr. N. C. Verma, then posted as Medical Officer, District Jail, Mirzapur, was examined who has proved the injuries on the body of the accused-appellant Mithai Lal which is Ex. KH-3. The injuries found on the person of Mithai Lal are as follows-: 1. Lacerated wound 1.5 cm X ¼ cm X Muscle deep on the back of left hand index finger margin irregular. 2. Abrasion with scab 4 cm X 1 cm on the back of the left lower fore arm 9 cm above the wrist joint. 3. Diffused traumatic swelling 16 cm X 8 cm on the right foot and sole. 4. Contusion 4 cm X 1 cm on the left side back just in the scapular region colour blue direction oblique. 5. Contusion 5 cm X 1 cm on the right side back just in the scapular region. Colour blue direction oblique. 6. Abrasion with scab 1.5 cm X ½ cm on the right side skull 8 cm above the right upper eyebrow. We have heard Sri P. K. Singh, learned counsel for the appellant and Sri Amit Sinha, learned A.G.A for the State. Learned counsel for the surviving accused-appellant Prem Bahadur vehemently contended that judgement of conviction and order of sentence recorded by the trial court is not sustainable in the eye of law. The only role as per prosecution version assigned to the surviving accused-appellant is that of exhortation on which the main accused Mithai Lal brought Tamancha from his room and opened fire on the deceased Krishan Bihari as a result of which he died due to the fire arm injuries. So conviction against accused-appellant Prem Bahadur with the aid of Section 34 has no application in the present case. Further, as per prosecution version there was fire of only one gunshot whereas ante-mortem injuries shows three gunshot injuries so medical evidence does not support the eye version account. So conviction against accused-appellant Prem Bahadur with the aid of Section 34 has no application in the present case. Further, as per prosecution version there was fire of only one gunshot whereas ante-mortem injuries shows three gunshot injuries so medical evidence does not support the eye version account. It is next contended that motive against the surviving appellant Prem Bahadur has not been proved and lastly contended that so far as conviction against the surviving appellant under Section 323 I.P.C. is concerned the impugned judgement and conviction is against the prosecution evidence available on record. The manner, mode of assault and the injuries inflicted are not proved by tendering any legal evidence. Per contra learned A.G.A. rebutting the above arguments contends that accused-appellants as well as eye witnesses are named in the F.I.R., who are injured witnesses of the incident. Further, date, time and place of occurrence is proved in this case, source of light in which the accused persons were identified also stands proved. Further, defence version itself admits the presence of the complainant alongwith witnesses and deceased on the said date, time and place of incident. It is further contended Dr. M. K. Singh (PW7) who conducted the post-mortem has proved ante-mortem injuries. The presence, involvement and complicity of surviving appellant is proved and cannot be doubted in commission of the crime. So, there is no merit in contentions as raised by learned counsel of the appellant. The impugned judgement of conviction and order of sentence is passed on the basis of legal evidence, therefore, the appeal is devoid of merit and deserves to be dismissed. In light of above contentions raised on behalf of both the parties, we have perused the evidence and material available on record. In support of the main contention regarding applicability of Section 34 I.P.C., the learned counsel for the appellant has cited following law laid-down by the Honb'le Apex Court:- 1. Sachin Jana Vs. State of West Bengal, 2008 Law Suit (SC) 119. 2. Nagaraja Vs. State of Karnataka, 2008 Law Suit (SC) 1866. 3. B Parichhat Vs. State of Madhya Pradesh, 1971 Law Suit (SC) 537. 4. Daya Shankar Vs. State of M. P., 2009 Law Suit (SC) 34. Sachin Jana Vs. State of West Bengal, 2008 Law Suit (SC) 119. 2. Nagaraja Vs. State of Karnataka, 2008 Law Suit (SC) 1866. 3. B Parichhat Vs. State of Madhya Pradesh, 1971 Law Suit (SC) 537. 4. Daya Shankar Vs. State of M. P., 2009 Law Suit (SC) 34. On the basis of above cited rulings the learned counsel for the appellant submitted that merely presence of the appellant at the place of occurrence was not sufficient to warrant presumption of the common intention. For the applicability of Section 34 I.P.C. the prosecution is mandatorily required to establish by evidence whether direct or circumstantial that there was prior meeting of the mind to commit the offence of murder. It was further contended that mere presence of the appellant on the spot and the role of exhortation would not lead to presume the applicability of Section 34 I.P.C. Since in this case genesis of the incident is said to be the result of the misbehaviour and insult caused by the main accused-appellant Mithai Lal in which the surviving appellant Prem Bahadur has no role and further it transpires from the prosecution version that on the date of incident at about 08:00 P.M. Ram Jiyawan was beaten by the accused-appellant Mithai Lal in respect whereof he made complaint of the incident to the deceased and others. Thereafter, the deceased alongwith other persons arrived at the residence of main accused-appellant Mithai Lal to lodge their protest and at that point of time, it is alleged that both the accused-appellants made a simple hurt on the body of Jawahar Lal and Ram Jiyawan and on that spur of moment appellant Prem Bahadur exhorted accused-appellant Mithai Lal who then took out Tamancha from his room and opened fire towards Krishan Bihari and as a result of injuries inflicted by the gun shot appellant Mithai Lal victim died in the way while he was being taken to Renu Sagar Hospital for medical treatment. On the basis of above submission the main contention of the learned counsel for the appellant is that if entire prosecution story is taken to be proved on its face value then the only role assigned to the surviving appellant Prem Bahadur is that of causing simple injuries on the body of the witnesses Jawahar Lal and Ram Jiyawan and further exhortation to accused-appellant Mithai Lal for bringing Tamancha. Except said two roles, prosecution has not led any evidence either of premeditation or prior meeting of mind or of the plan before the incident between these two accused persons. Mere presence and exhortation will not be sufficient for recording the conviction of surviving appellant under Section 302 read with Section 34 I.P.C. It was further contended that fatal injury caused by the accused-appellant Mithai Lal was an individual act of accused-appellant Mithai Lal to which conviction presuming common intention under Section 34 is not sustainable in the eye of law. Rebutting the above arguments, learned A.G.A. submitted that the presence of the two accused persons at the place of occurrence and injury inflicted to Jawahar Lal and Ram Jiyawan by two accused-appellants by lathies is proved in this case. Further, the fact witnesses including the injured witnesses have categorically stated that at the time of the incident accused-appellant Prem Bahadur exhorted and instigated co-accused Mithai Lal to bring Tamancha which he kept inside the room. On this exhortation accused Mithai Lal took Tamancha from his room and opened fire towards deceased Krishan Bihari and inflicted fire arm injury which was found to be fatal and the deceased died when he was on way to hospital. On the basis of above said testimony, judgement of conviction and order of sentence passed by the trial judge with the aid of Section 34 I.P.C. against the surviving appellant cannot be said to be illegal hence Section 34 I.P.C. is very well applicable in this case. The arguments raised by the learned counsel for the appellant for non-applicability of Section 34 I.P.C. has no merit at all. Now to appreciate the aforesaid arguments, we would like to refer to establish legal proposition with regard to the applicability of Section 34 I.P.C. Section 34 I.P.C. deals with the cases of constructive criminal liability which provides that when a criminal act is done by several persons in furtherance of common intention of all, each of such persons is liable for that act in the same manner as if it were done by him alone. The essential constituent of the vicarious criminal liability prescribed by Section 34 I.P.C. is the existence of common intention. The essential constituent of the vicarious criminal liability prescribed by Section 34 I.P.C. 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 criminal charge each of the person sharing the common intention is constructively liable for the criminal act done by one of them. In Nagaraja (supra) the Hon'ble Apex Court observed that for invoking the provisions of Section 34 I.P.C. at least two factors must be established; (1) common intention, and (2) participation of the accused in the commission of an offence. It has been observed by Hon'ble Apex Court in Para 16 of the Judgement that:- "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. It was further observed that common intention may develop suddenly at the spot but for the said purpose, the genesis of the occurrence should have been proved." In Pandurang & Ors. Vs. State of Hyderabad [ AIR 1955 SC 216 ], Hon'ble Apex Court held that:- " Section 34 of Indian Penal Code pre-supposes prior concert, pre-arranged plan, i.e. a prior meeting of minds." Further held that:- "Common intention may inferred from the surroundings circumstances and the conduct of the parties." In B Parichhat (supra) the Hon'ble Apex Court held in para 22 that:- "Section 34 of the Indian Penal Code will not be attracted unless first it is established that a criminal act was done by several persons, second, that there was a common intention and a pre-arranged plan to commit an offence and third that there was participation in the commission of the offence in furtherance of that common intention." In Sachin Jana (supra) Hon'ble Supreme Court in para 10 observed that:- "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 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. 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." In paragraph 11 of the said report it has been held as under:- "The section does not say "the common intentions of all", nor does it say "an intention common to all". Under the provisions of Section 34 the essence of the liability is to be found in the existence of a common intention animating the accused leading to the doing of a criminal act in furtherance of such intention." On the touch stone of the above legal proposition we find substance in the arguments of the learned counsel for the appellant that in this case there was no prior meeting of mind to form a pre-arranged plan to murder Krishan Bihari. A mere exhortation by the surviving appellant at the time of assault on the deceased will not be sufficient for the application of Section 34 I.P.C. As held in Nagaraja (supra) only presence of the accused at the place of occurrence itself would not attract the section 34 I.P.C. Further in this context we find that the genesis of the incident as alleged in the prosecution story is attributed to the main accused Mithai Lal who as per prosecution story rewarded male dancer at Ram Lila in the name of wife of the deceased Krishan Bihari. Definitely the motive and genesis of the incident could not be assigned against the surviving appellant Prem Bahadur. Further, it transpires from the evidence adduced by the prosecution that it is the complainant's side who visited at the place of occurrence i.e. residence of accused Mithai Lal for two reasons firstly the previous insulting act of the accused person in giving reward to the male dancer in the Ram Lila in the name of wife of deceased Krishan Bihari and secondly that accused had assaulted Ram Jiyawan at Auri Morh in connection of earlier said incident of Ram Lila (this incident of assault took place prior to the incident of murder at 08:00 P.M.). In above fact situation from no stretch of imagination the factum of premeditated prior consultation, prior meeting of mind between two accused persons for murder of the deceased could be inferred as the occasion of assault arises only due to the complainant's side when they had gone to the residence of Mithai Lal for registering their protest of the previous incident. As we have already pointed above if the complainant's side had not gone to the place of occurrence, the incident of murder could have been avoided. Keeping all these facts and circumstances into consideration and applying aforesaid legal propositions as laid down by the Hon'ble Apex Court, the conviction recorded by the trial judge with the aid of Section 34 I.P.C. to our view is not sustainable in the eye of law. So far as the judgement of conviction and order of sentence under Section 323 I.P.C. passed by the trial court against surviving appellant Prem Bahadur is concerned, we have given our considered thought to the prosecution evidence oral, documentary as well as physical factors of the case. So far as the judgement of conviction and order of sentence under Section 323 I.P.C. passed by the trial court against surviving appellant Prem Bahadur is concerned, we have given our considered thought to the prosecution evidence oral, documentary as well as physical factors of the case. We find that the prosecution case is that Ram Jiyawan S/o Ramadhin had gone to Auri Morh on 28th December, 1980. At about 08:00 P.M. both the accused-appellants Mithai Lal and Prem Bahadur who were resident of the Auri-mod had beaten Ram Jiyawan. On the same day at about 08:30 P.M. Ram Jiyawan went to the house of the complainant Avadh Bihari and narrated the said incident of scuffle (marpeet). At that point of time Krishan Bihari (brother of the complainant), Ganga Ram and Jawahar Lal were also present and in order to show their protest all the above persons went to the house of accused Mithai Lal on the same night at about 09:00 P.M. Further, prosecution version is that at the time of the incident a petromax was alighted at the door of the accused-appellant Mithai Lal and accused-appellant Prem Bahadur was also present there. On enquiry being made of the previous incident as to why they had beaten the innocent Ram Jiyawan some altercation took place and accused-appellants Mithai Lal and Prem Bahadur began to beat with lathies as a result of which Jawahar Lal and Ram Jiyawan sustained injuries. This fact has been proved by PW1 Jawahar Lal and PW2 Ram Jiyawan which goes to establish that prior to the incident some hot talks took place between accused persons and deceased Krishan Bihari who visited the spot alongwith Jawahar, Ram Jiyawan, Ganga Ram and Avadh Bihari. Further the second incident took place in which Ram Jiyawan, Ganga Ram and Jawahar got injuries inflicted by the accused-appellants Mithai Lal and Prem Bahadur. This fact is proved by the testimony of PW1, PW2 and PW3. The presence of the injured persons alongwith complainant and deceased Krishan Bihari was further proved by the statement of the accused-appellant Mithai Lal who admits this fact that at about 09:00 P.M. on the date of incident deceased Krishan Bihari accompanied by 4 or 5 persons arrived at his door and hot altercation took place at the place of incident. Therefore, the date, time and place of occurrence is found to be cogently established. Therefore, the date, time and place of occurrence is found to be cogently established. Further, this fact also stands established from the testimony of the fact witnesses PW1, PW2 and PW4 who stated that when they reached at the place of occurrence to show their protest they were unarmed. This fact is further substantiated by the corroboration of testimony of PW6 Dr. N. P. Agarwal who conducted the medical examination of the injured namely Ram Jiyawan, Chhotak, Ganga Ram and Jawahar. The medical report of the injured persons Ex. KA-5 to Ex. KA-8 has been proved by PW6 which goes to show that injuries found on the body of the injured are simple in nature and caused by the blunt object. Thus the medical report is also in consonance with the eye version account stated by the witnesses of fact. In view of the above facts we have no hesitation in coming to the conclusion that the injuries of Ram Jiyawan, Ganga Ram and Jawahar are proved to have been inflicted by the accused persons at the time when they approached the accused to lodge their protest against the misbehaviour with Ram Jiyawan. As we have already discussed that date, time, place of occurrence, mode and manner of assault and immediate genesis of the assault is proved in this case against the surviving appellant Prem Bahadur without any doubt. The testimony of fact witnesses PW1, PW2, PW3 and PW4 are consistent on this point and further corroborated by the medical evidence. The logical conclusion is offence under Section 323 I.P.C. stands proved against the surviving appellant Prem Bahadur. Therefore, we find no merit in the argument raised on this point by the learned counsel for the surviving appellant. Lastly learned counsel for the appellant made submission that surviving appellant Prem Bahadur has spent long incarceration in jail during trial and the conviction recorded under Section 323 I.P.C. and order of sentence for 3 months rigorous imprisonment under Section 323 I.P.C. has already been served by the surviving appellant Prem Bahadur and in case his conviction is confirmed under Section 323 I.P.C. then in that situation the period of incarceration in jail may be taken into account as it has already been served. Learned A.G.A. has no objection on this argument. Learned A.G.A. has no objection on this argument. In view of reasons and discussion aforesaid, we conclude that judgement of conviction and order of sentence against the surviving appellant Prem Bahadur under Section 302 with the aid of Section 34 I.P.C. is not sustainable in the eye of law. Therefore, conviction and order of sentence passed by the trial court in respect of Section 302 read with Section 34 I.P.C. is set aside. So far as conviction under Section 323 I.P.C. against the surviving appellant Prem Bahadur for 3 months rigorous imprisonment is concerned, the same is confirmed. In view of the submissions made by learned counsel for the appellant that said period of sentence of three months had already been served by the surviving appellant is hereby accepted subject to the verification of the same by concerned C.J.M. Accordingly, the appeal is partly allowed. Let a certified copy of this judgement be sent to the concerned C.J.M. with the direction that if sentence of 3 months imprisonment under Section 323 I.P.C. has not been served by surviving accused-appellant then NBW be issued against surviving accused-appellant Prem Bahadur for the purpose of serving remaining sentence and if period of sentence of 3 months imprisonment have already been served by the surviving accused-appellant Prem Bahadur, the bail bond and sureties may be discharged and verification report be sent to this Court by the concerned C.J.M. in compliance of the above order.