JUDGMENT Agarwal, J.--1. Criminal Appeal No. 518/2004 has been filed by accused Hariom being aggrieved by judgment dated 1st July, 2004 passed by Special Judge (Atrocities), Datia, in Special Case No. 72/2000 (State of M.P. v. Hariom and four others), whereby appellant has been convicted for the murder of Tulsi under the provisions of section 302 read with section 34 of IPC with life imprisonment for his whole life while acquitting him under the provisions of sections, 148, 307 or 307/149 of IPC so also under section 3(1) (v) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities Act), whereas Criminal Revision No. 529/2004 has been filed by complainant Chhadami under section 397 of CrPC being aggrieved by rejection of his application under section 319 of CrPC for impleading respondents Krishnapal Singh and Bharat as accused, originating out of the same judgment, thus both the matters are being decided by this common order. 2. Ground taken in criminal revision is that in the FIR lodged by Ramesh (PW13) names of Krishnapal Singh and Bharat have been mentioned and their involvement being armed with an axe and Farsa is reported in the FIR (Ex.P-24), therefore not accepting an application under 319 of CrPC and rejecting the same has resulted in giving undue benefit to other co-accused besides clearing the respondents from the charges under sections 302, 307 with or without the aid of sections 149 or 34 of IPC. 3. As far as Criminal Revision is concerned, it has come on record that on 14.5.2004 Special Public Prosecutor had moved an application under section 319 of CrPC to implead Krishnapal Singh and Bharat as an accused. This application was replied to by the concerned counsel opposing the same and it was submitted that application under section 319 of CrPC was not maintainable at this distance of time and admittedly complainant party belongs to scheduled caste community whereas accused persons are member of Bagla (Gadariya) community. It has also come on record that Ramesh (PW13) author of FIR (Ex.P-24) in para 6 of his cross-examination admitted that he had not seen Hariom, Ratiram, Krishnapal Singh and Bharat on the spot and none of them had committed any act of beating. He has also admitted in paragraph 7 of his cross-examination that for last 15 years Krishnapal Singh and Bharat are staying at Datia. He has also admitted in paragraph 7 of his cross-examination that for last 15 years Krishnapal Singh and Bharat are staying at Datia. He also admitted that there are two parties in the village one in support of Krishnapal Singh and other consisting of Balwan Singh and Chhadami. He has also admitted that Krishnapal Singh was Sarpanch of the village and in paragraph 10 of his cross-examination he has admitted that when police had investigated the matter he had informed that he had not given names of Krishnapal Singh, Bharat, Hariom and Ratiram and such names were recorded by Balwan Singh. 4. Balwan Singh is PW10. Ramesh (PW13) in para 11 has admitted that when he had taken the police party to village Agora, then on way close to railway station he had met Tulsi lying on a bullock cart and his dead-body was carried by Kamlu, Dayaram, Bhaiyalal, Ghanaram and Dhaniram and at that spot only police had carried out its proceedings. In para 12, he has admitted that Balwan Singh and Krishnapal Singh had contested election for the post of Sarpanch before the incident and Krishnapal Singh had won such election. 5. Balwan Singh (PW10) has admitted in para 2 of his examination-in-chief that he had not seen any incident and he is a hearsay witness. He was declared hostile. After being declared hostile when leading questions were put to him he submitted that when he was operating pump at his field, then mother of Tulsi, namely Chironji, had visited him and informed that her son Tulsi has been murdered by Sarpanch Krishnapal Singh, Bharat Singh Thakur, Hariom Bhagla, Udal, Ratiram, Parshu and Shibbu who were armed with Lathi and Farsa and had grievously injured Chhadami. 6. There is no suggestion that Balwan Singh (PW10) had informed Ramesh (PW13) as regard to involvement of Krishnapal Singh and Bharat in the incident. It is also important to point out that on 11.12.2000 when the matter was committed to the Sessions Court, charges were not framed against Krishnapal Singh and Bharat. Against this order of committal, no proceedings were undertaken by complainant Chhadami or the State. 7. It is also important to point out that on 11.12.2000 when the matter was committed to the Sessions Court, charges were not framed against Krishnapal Singh and Bharat. Against this order of committal, no proceedings were undertaken by complainant Chhadami or the State. 7. Learned Public Prosecutor for the State in Criminal Revision submits that the Supreme Court in the case of Michael Machado and another v. Central Bureau of Investigation and another as reported in 2000 Cri.L.J. 1706 has held that addition of person as co-accused under section 319 of CrPC invoking the powers at belated stage after examination of 54 witnesses and at the cost of de novo trial is not proper. It has been held that when the trial in a criminal case against four accused persons proceeded to the penultimate stage, the Metropolitan Magistrate, before whom the case was being tried, ordered two more persons to be arrayed as accused, merely because the statement of next three witnesses created some suspicion against the appellant, such order of trial Court in exercise of section 319 of the Code has to be interfered with for enabling the trial to proceed to its normal culmination. If the order of the Magistrate is to sustain, the proceedings in respect of the newly added persons are to be recommenced afresh, which means that the entire massive evidence thus far collected and the time which the Court has thus far spent for recording the evidence of such a large number of witnesses, besides the cost involved for all concerned to reach up to the present stage, would all become, for all practical purposes, a waste - a colossal waste and it it not so necessary at such belated stage to bring such two more additions to the array of the accused at the cost of such a de novo trial. 8. In the present case, besides this, even the evidence on record reveals that Ramesh (PW13) has also mentioned that he had mentioned names of Krishnapal Singh and Bharat at the instance of Balwan Singh (PW10). Balwan Singh has admitted that he is not an eye-witness to the incident. Therefore, learned Special Judge has not committed any error in dismissing the application at such a late stage when trial was almost complete and application was filed on 14.5.2004, therefore, revision petition fails and is dismissed. 9. Balwan Singh has admitted that he is not an eye-witness to the incident. Therefore, learned Special Judge has not committed any error in dismissing the application at such a late stage when trial was almost complete and application was filed on 14.5.2004, therefore, revision petition fails and is dismissed. 9. As far as Criminal Appeal No. 518/2004 is concerned, as per prosecution story, on 7.12.1995 at about 12.30 p.m. Ramesh (PW13) reported commission of crime at police Station, Civil Lines, Datia, and at his instance TI B.L.Shukla (PW12) had recorded FIR (Ex.P-24). It was alleged that his father Mulu had sold 3.5 Beegha of land out of holding of 7.5 Beegha in favour of Parshu Bagala. Bagalas were required to pay certain amount but had not paid that amount, therefore, Mulu had objected to mutation of such land in favour of Bagalas. Mulu had also sold remaining four Beegha of land in favour of Tulsi Das, therefore, Bagalas were threatening Chhadami and Tulsi that land which was purchased by him shall be cultivated by them. 10. On 7.12.1995 Ramesh was watering the crops in the field of Tulsi Das. Chhadami was preparing ropes and Tulsi Das had gone to the Well to drink water when Hariom armed with axe, Udal armed with Lohangi, Ratiram and Parsuram armed with Lathi and Shibbu armed with axe came and asked Tulsi Das as to why they are watering the fields of Bagalas. They had thereafter beaten Tulsi Das with axe and Lathis, as a result, he died there itself. After Tulsi Das, they caught hold of Chhadami and beat him with axe and Lohangi. Shibbu hit Ramesh with the opposite side of axe on his right shoulder causing him injury. On hearing commotion, Dayaram (PW6), Kamlu (PW7), Ghanaram (PW8) and Bhaiyalal (PW9) also reached the scene of crime and saw the incident. Ramesh in his FIR had also recorded names of Krishnapal Singh and Bharat and narrated that after the incident he had gone to village Anandpur where he had informed about this incident to Balwan Singh (PW10) who in turn informed Chronjibai (PW15), mother of Tulsi Das, about the incident. Thereafter, Ramesh had visited Ramsevak and informed him about the incident and then had gone to police Station along with Ramsevak to lodge the FIR (Ex.P-24). Injured were sent to the hospital. Thereafter, Ramesh had visited Ramsevak and informed him about the incident and then had gone to police Station along with Ramsevak to lodge the FIR (Ex.P-24). Injured were sent to the hospital. Dying declaration of Chhadami was recorded by Naib Tahsildar vide Ex.P-23A. 11. After investigation was over, charge-sheet has been filed. The case was committed for trial. Charges under section 3(1)(v) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act and sections 148, 302 or 302/149, 307 or 307/149 of IPC were framed. 12. The appellant abjured his guilt and pleaded false implication. 13. It has also come on record that Parsu and Shibbu died, therefore, trial was conducted against Hariom and Ratiram. Udal was declared to be absconding. 14. Learned counsel for the appellant submits that conviction of the appellant under section 302 with the aid of section 34 of IPC is not made out from the material on record, and therefore, such conviction of the appellant is liable to be set aside. 15. Learned Public Prosecutor has supported the impugned judgment. 16. It is submitted on behalf of the appellant that to attract the provisions of section 34 of IPC to hold appellant Hariom liable for acts done by another, it must have been established that there was common intention in the sense of a pre-arranged plan and Hariom had participated in some manner in the act constituting the offence. It is submitted that both these requirements are not fulfilled inasmuch as though Ramesh (PW13), author of the FIR (Ex.P-24), has mentioned seven names in the FIR, including that of present appellant Hariom, but when he was examined before the trial Court as PW13, then he has admitted in para 10 of his cross-examination that he had not mentioned names of Krishnapal Singh, Bharat Singh, Hariom and Ratiram and such names were recorded at the instance of Balwan Singh. His deposition as recorded by the trial Court in para 10 is reproduced as under : Þ10 iqfyl us eq>ls iwNrkN dh Fkh rks eSus crk fn;k Fkk fd fjiksVZ esa eSus —".kiky flag] Hkjr flag] gfjvkse o jrhjke ds uke ugha fy[kk;s Fks tks cyoku flag us fy[kok fn, FksA eSus izFke lwpuk fjikVZ izn'kZ ih&24 Fkkus ij lqcg 9-30 cts fy[kkbZ Fkh] 12-30 cts ugha fy[kkbZ FkhAß Therefore, according to Ramesh (PW13) name of Hariom was given at the instance of Balwan Singh (PW10). Balwan Singh (PW10) has turned hostile and has admitted that he had not seen the incident, therefore, when Balwan Singh had not seen the incident, then it was for the prosecution to have explained that how at the instance of Balwan Singh name of Hariom was incorporated in the FIR lodged by Ramesh (PW13) who admits that he had not given name of Hariom to the police and it was given by Balwan Singh. Even after declaring Balwan Singh (PW10) to be hostile, there is no material on record to substantiate mentioning of name of Hariom in the FIR. In fact, Ramesh (PW13) never ever deposed that Balwan Singh was an eye-witness and Balwan Singh had seen the incident. On the contrary, Ramesh (PW13) has mentioned that on 7.12.1995 at about 8.30 a.m. he was watering the crops of Tulsi as a labourer and Tulsi was carrying out agricultural operations in his field when Shibbu, Udal and Parshu reached the scene of crime. Shibbu was armed with Lohangi, Udal with axe and Parshu with Farsa. They abused Tulsi and Udal hit Tulsi with his axe in the neck and thereafter Shibbu and Parshu hit Tulsi, as a result Tulsi fell down. Ramesh also admitted that when he tried to intervene, then Shibbu hit him with the handle of axe. There is no mention of presence of Hariom even by eye-witness Ramesh (PW13). Ramesh has also admitted that at the time of incident Kamlu and Dayaram were present. He has also not shown presence of Balwan Singh at the time of incident. 17. Dayaram (PW6) has also admitted in his examination-in-chief that Tulsi was hit by Udal, Parshu and Shibbu and apart from these three, nobody else had beaten him. Then he has further expressed in his examination-in-chief that there was nobody else, thus absolving all others except three abovementioned persons. He has admitted in cross-examination that Hariom was not included in the persons who had beaten Tulsi. Kamlu (PW7) has given a contradictory statement that Hariom had hit Tulsi with axe on his head. However, in cross-examination he has admitted that he and his brother Dayaram had informed Balwan Singh and Chironji about the incident that Chhadami and Tulsi were attacked by Shibbu, Udal and Parshu and Ramesh had gone running to call Ramsevak. His evidence has also been discarded by the learned trial Judge. However, in cross-examination he has admitted that he and his brother Dayaram had informed Balwan Singh and Chironji about the incident that Chhadami and Tulsi were attacked by Shibbu, Udal and Parshu and Ramesh had gone running to call Ramsevak. His evidence has also been discarded by the learned trial Judge. Therefore, as per evidence of eye-witness Ramesh (PW13), once evidence of injured Chhadami (PW14), who has not been considered to be trustworthy and who had in earlier Court statement had admitted that incident had taken place between 5-5.30 in the morning and who had deposed that it was Krishnapal Singh who had hit Tulsi with axe and thereafter Udal had hit Tulsi with axe and has also accepted presence of Ramesh at the time of incident and further in his dying declaration (Ex.P-23A) gave contradictory versions about Hariom saying that Hariom had hit him with a Farsa, then stated that Hariom had hit him with Lohangi and then stated that Hariom had hit Tulsi with Farsa, are discarded, they being not in conformity with the statements given by other eye-witness, therefore, it is apparent that in the light of the law laid down by the Privy Council in the case of Mahbub Shah v. Emperor as reported in AIR (32) 1945 PC 118 showing common intention and premeditation of mind being not available, appellant could not have been convicted with the aid of section 34 of IPC. 18. Similarly, in the case of Pandurang Tukia and other v. State of Hyderabad as reported in AIR 1955 SC 216 , it has been held that common intention under section 34 of IPC presupposes prior concert. It requires a prearranged plan because before a man can be vicariously convicted for the criminal act of another, the act must have been done in furtherance of the common intention of them all. Accordingly there must have been a prior meeting of minds. It has been held that several persons can simultaneously attack a man and each can have the same intention, namely the intention to kill, and each can individually inflict a separate fatal blow and yet none would have the common intention required by the section because there was no prior meeting of minds to form a prearranged plan. 19. It has been held that several persons can simultaneously attack a man and each can have the same intention, namely the intention to kill, and each can individually inflict a separate fatal blow and yet none would have the common intention required by the section because there was no prior meeting of minds to form a prearranged plan. 19. Similarly, in the case of Dani Singh and others v. State of Bihar as reported in (2004) 13 SCC 203 it has been held that “common intention” implies prearranged plan and acting in concert pursuant to the prearranged plan. It has been held that even common intention may develop on the spot but it must however be anterior in point of time to the commission of offence showing a prearranged plan and prior concert. 20. Similarly in the case of Abdul Sayeed v. State of Madhya Pradesh as reported in (2010) 10 SCC 259 ingredients to establish liability under section 34 of IPC and the circumstances under which section 34 of IPC can be invoked have been laid down. In para 49 of the judgment, it has been held that the phrase “common intention” implies a prearranged plan and acting in concert pursuant to the plan. Thus, common intention must be there prior to commission of the offence in point of time. It has been held that common intention under section 34 of IPC is to be understood in a different sense from the “same intention” or “similar intention” or “common object”. Persons having similar intention which is not the result of the prearranged plan cannot be held guilty of the criminal act with the aid of section 34 of IPC. Therefore, as prosecution has failed to prove the aspect of common intention, conviction recorded by learned Sessions Judge with the aid of section 34 of IPC is not made out. 21. Thus, as ingredients of section 34 of IPC are not fulfilled in the present case, conviction of appellant Hariom under section 302 with the aid of section 34 of IPC is liable to be set aside. 22. Consequently, Criminal Appeal No. 518/2004 is allowed. Appellant is acquitted from his conviction under section 302/34 of IPC. Appellant is in jail, he be released forthwith if not required in any other case. Record of the trial Court be also sent back forthwith.