JUDGMENT : Raj Beer Singh, J. 1. This appeal has been preferred against the judgment and order dated 17.02.1987 passed by IIIrd Additional Sessions Judge, Moradabad in Session Trial No. 38 of 1985 (State Vs. Ghasi & others), under Section 302, 302/34 of I.P.C., P.S. Hasanpur, District Moradabad, whereby accused/appellant Ghasi has been convicted under Section 302 of I.P.C. and accused-appellants Jaipal and Dolat have been convicted under Section 302/34 of I.P.C. and all the three accused-appellants were sentenced to imprisonment for life. 2. During pendency of this appeal, accused-appellants Ghasi and Dolat have expired and thus their appeal stands abated. Now the instant appeal is confined only in respect of accused-appellant Jaipal. 3. Prosecution case is that on the intervening night of 19/20.10.1984, complainant-(PW-1) Lalo and his family members including his father Baldeo, mother Ram Kali, brothers (PW-2) Parma and Sewa Ram were sleeping at their house and there was light of Lantern. At around mid night, deceased-appellant Ghasi having a country made pistol, accused Dolat having a club and accused-appellant Jaipal having a torch came there. Complainant and his family members awoke after hearing barking of dogs. When complainant and his family members confronted them, accused-appellant Jaipal flashed a torch light at Sewa Ram and deceased accused-appellant Ghasi fired a shot by putting country made pistol at the chest of Sewa Ram. When complainant and his family members raised an alarm, all the three accused-appellants ran away. 4. Complainant reported the matter to police and on his oral statement, this case was registered on 20.10.1984 at 8.30 p.m. under Section 302 of I.P.C. against all the three accused-appellants vide FIR Ex.Ka-1. 5. The inquest proceedings were conducted by (PW-5) S.I. Sheo Raj Singh. The dead body of deceased Sewa Ram was sealed and was sent for postmortem. 6. The postmortem on the dead body of deceased Sewa Ram was conducted on 31.10.1984 by (PW-6) Dr. R.S Negi vide postmortem report Ex. Ka-14. Following injuries were found on the person of the deceased: (i) Fire-arm wound of entry circular wound 8 cm. in diameter present on the left side of the chest over the breast region 6 cm below the left clavical 5 cm lateral to the left eternal border over 3rd, 4th and 5th ribs, margins lacerated, inverted, surrounding skin is blackened, scorch and tattooed, underlying ribs are also fractured. in diameter present on the left side of the chest over the breast region 6 cm below the left clavical 5 cm lateral to the left eternal border over 3rd, 4th and 5th ribs, margins lacerated, inverted, surrounding skin is blackened, scorch and tattooed, underlying ribs are also fractured. (ii) Circular wound on the left tip of the thumb 2 cm in diameter causing amputation of terminal phalarope. At the mid length margins is irregular, lacerated and surrounding skin also shows the blackening, tattooing and scorching The cause of death of deceased was shock and hemorrhage due to firearm ante-mortem injuries. 7. (PW-4) S.I., S.S. Sisodia took up the investigation of the case and after completion of the investigation, all the three accused persons were charge sheeted. 8. Learned trial court framed charge against deceased-accused-appellant Ghasi under Section 302 of I.P.C., while accused-appellant Dolat and Jaipal were charged under Section 302/34 of I.P.C. 9. In order to bring home the guilt of the accused-appellants, prosecution has examined six witnesses. The accused persons were examined under Section 313 of Cr.P.C., wherein they have denied the prosecution evidence and claimed false implication. 10. After hearing and analyzing the evidence on record, learned Trial Court has convicted deceased-accused-appellant Ghasi under Section 302 of I.P.C. and accused-appellants Dolat and Jaipal were convicted under Section 302/34 of IPC and were sentenced to imprisonment for life vide impugned judgment and order dated 17.02.1987. 11. Being aggrieved by the impugned judgment and order of the trial court, the appellants have preferred the present criminal appeal, however, as stated earlier, now this appeal is confined only in respect of Jaipal. 12. Heard Sri Apul Mishra, assisted by Sri Manoj Chowdhary, learned counsel for the appellants and Sri Amit Sinha, learned A.G.A., assisted by Sri Awadhesh Kumar Shukla, learned counsel for the State-respondent and perused the record. 13. Learned counsel for the appellants submits: (i) that it is highly doubtful that (PW-1) Lalo and (PW-2) Parma have witnessed the alleged incident. As per prosecution version, the alleged incident took place in mid night. As per version of (PW-1) Lalo and (PW-2) Parma, there was light of lantern but they have also stated that accused-appellant Jaipal has flashed light on the deceased Sewa Ram. As per prosecution version, the alleged incident took place in mid night. As per version of (PW-1) Lalo and (PW-2) Parma, there was light of lantern but they have also stated that accused-appellant Jaipal has flashed light on the deceased Sewa Ram. Learned counsel for the appellant has argued that both these facts are contradictory to each other and if there was light of lantern then there was no need to flash torch light on the deceased and thus, it falsify prosecution version. (ii) that no motive on the part of the accused-appellant has been proved. Even the alleged enmity of accused Ghasi was with (PW-2) Parma but no harm was caused to (PW-2) Parma. Learned counsel has argued that prosecution has failed to prove any motive on the part of the accused-appellant in the alleged incident. (iii) that there is absolutely no evidence regarding common intention among the accused persons to commit murder of deceased. Even as per prosecution version, no specific overt act was attributed at the accused-appellant Jaipal except that of flashing a torch light and he was convicted with the aid of Section 34 of I.P.C. alongwith deceased accused-appellant Dolat. Learned counsel for the accused-appellant submits that there is absolutely no evidence that there was any prearranged plan amongst the accused-appellants to commit the murder of deceased and even there is nothing to indicate that accused-appellant Jaipal was aware that accused-appellant Ghasi was having a pistol with him. 14. Per contra, it has been submitted by the learned A.G.A. that (PW1) Lalo and (PW-2) Parma were eye witnesses of the alleged incident, which took place in their house. Being inmate of the house, they are natural witnesses of the incident. Both the witnesses have clearly spoken about the motive of the incident and that FIR of the incident was lodged without any delay, naming all the three accused-appellants. The version of (PW-1) Lalo and (PW-2) Parma, is consistent with the medical evidence and no important contradiction of the inconsistency could be shown in the statement of (PW1) Lalo and (PW-2) Parma. 15. We have considered the rival submissions of the learned counsel for the parties and perused the record. 16. The version of (PW-1) Lalo and (PW-2) Parma, is consistent with the medical evidence and no important contradiction of the inconsistency could be shown in the statement of (PW1) Lalo and (PW-2) Parma. 15. We have considered the rival submissions of the learned counsel for the parties and perused the record. 16. In evidence, (PW-1) Lalo stated that about 10 years prior of the incident, one Imrat was murdered and the accused-appellant Ghasi, who is brother of said Imrat, used to suspect that Imrat was murdered by him (PW-1) and others and due to this reason accused-appellant Ghasi and other accused-appellants were having enmity with (PW-1) Lalo. Regarding the incident, (PW-1) Lalo stated that in the night he as well as his brother (PW-2) Parma and father Baldeo were sleeping at their house and there was light of lantern. In mid night, all the three accused-persons came and accused Ghasi was having country made pistol, accused-appellant Jaipal was having torch and accused Dolat was having lathi. Hearing barking of dogs, complainant/(PW-1) Lalo and his family members awoke. Deceased-accused Ghasi fired a bullet at the chest of Sewa Ram and resultantly Sewa Ram died instantaneously. Hearing noise, some neighbours came but accused-appellants have already ran away. 17. (PW-2) Parma stated that on the fateful night, he along with his family members including his father, brother Lalo and Sewa Ram were sleeping at their house and there was light of lantern. In mid night, accused Jaipal, Dolat and Ghasi came there. Accused-appellant Ghasi was having a pistol, Dolat was having a club and accused-appellant Jaipal was having a torch. Hearing barking of dogs, (PW-2) Parma and his family members awoke and confronted them. On this, the accused-appellant Jaipal flashed torch light and accused-appellant Ghasi fired a bullet at Sewa Ram and thereafter, all the accused person ran away. 18. (PW-3) Constable Ram Prakash is a formal witness, who assisted during investigation. 19. (PW-4) Sub Inspector S.S. Sisodia conducted investigation. During course of investigation, he prepared site plan of the spot and alleged lantern was taken into possession vide seizure memo Ex.Ka-2. After completion of the investigation, charge sheet was filed against all the three accused-persons. 20. (PW-5) Sub Inspector, Sheo Raj Singh has conducted inquest proceeding and (PW-6) Dr. R.S. Negi has conducted postmortem on the dead body of the deceased. 21. After completion of the investigation, charge sheet was filed against all the three accused-persons. 20. (PW-5) Sub Inspector, Sheo Raj Singh has conducted inquest proceeding and (PW-6) Dr. R.S. Negi has conducted postmortem on the dead body of the deceased. 21. So far as argument, that (PW-1) Lalo and (PW-2) Parma have not witnessed the alleged incident, is concerned, it may be seen that both these witnesses have stated that in mid night after hearing barking of dogs, they have awoken and saw that accused-appellant Jaipal has flashed torch light and that deceased accused-appellant Ghasi fired shot at the chest of deceased Sewa Ram causing his death instantaneously. The alleged incident took place inside their house, thus being inmate of the house, the presence of (PW-1) Lalo and (PW-2) Parma at the scene of the offence is quite natural. It is correct that as per prosecution version, the alleged incident took place in mid night of 19/20.10.1984 and first information report was lodged at 8.30 A.M on 20.10.1094, but mere delay in lodging first information report cannot be a ground to doubt prosecution case, rather it has to be examined by the court whether any satisfactory explanation for delay has been offered or not. In instant case no explanation was offered but it has to be kept in view that the incident has taken place in night hours and that police station was situated at a distance of six kms. from the spot and thus it would not be proper to doubt prosecution case on the ground of delay in first information report, but it would certainly put the court at guard and thus evidence has to be examined carefully. 22. It was argued by the learned counsel for the appellant that as per prosecution version, there was light of lantern at the spot, while on the other hand both the alleged eye witnesses have stated that accused-appellant Jaipal has flashed torch light and thereafter shot was fired, which is contradictory. No doubt, if there was light of lantern at the spot, then in ordinary course there was no need for flashing torch light by the accused-appellant but it is not such an important factor so as to create doubt in prosecution version. No doubt, if there was light of lantern at the spot, then in ordinary course there was no need for flashing torch light by the accused-appellant but it is not such an important factor so as to create doubt in prosecution version. However, if the case is found suffering from some other substantial infirmities, in such an eventuality this fact can also be taken into consideration along with other infirmities in prosecution case. 23. So far as, motive aspect is concerned, the case of prosecution is that brother of accused-appellant Ghasi, namely, Imrat was murdered about 10 years prior of the incident and in that case, Ramphal etc. were charge-sheeted, but accused-appellant Ghasi used to suspect that Imrat was murdered by accused Ghasi and his family members. Even as per prosecution, period of 10 years has already passed since the alleged murder of Imrat. Further, (PW-1) Lalo and (PW-2) Parma have not clarified that who had lodged the report regarding murder of alleged Imrat and what was the fate of that case. No documentary proof pertaining to that case was filed in this case. Thus, it could not be said that prosecution has been able to prove motive on part of accused persons particularly on the part of accused-appellant Jaipal to commit murder of deceased Sewa Ram. Considering entire evidence and all attending facts and circumstances of the case, it could not be said that prosecution has proved the motive on the part of accused accused-appellant Jaipal to commit murder of deceased Sewaram. Though, in a case based on direct evidence proof of motive is not required, however, in the instant case, considering the fact that motive has been alleged but could not be established, would be relevant fact for consideration. 24. Much trust has given to the argument that there is no evidence on record that accused-appellant Jaipal shared common intention with other accused-appellants to commit murder of deceased Sewa Ram. In this regard, it would be pertinent to mention that accused-appellant Jaipal has been convicted under Section 302/34 of I.P.C along with deceased accused-appellant Dolat. No overt act was attributed to the accused-appellant Jaipal except that of flashing torch light. In this regard, it would be pertinent to mention that accused-appellant Jaipal has been convicted under Section 302/34 of I.P.C along with deceased accused-appellant Dolat. No overt act was attributed to the accused-appellant Jaipal except that of flashing torch light. To appreciate the argument advanced on behalf of the accused-appellant, it would be pertinent to understand object of Section 34 IPC incorporated in the Indian Penal Code which has been considered in so many cases by the Apex Court. The common intention implies acting in concert, existence of a pre-arranged plan which is to be proved either from conduct or from circumstances or from any incriminating facts. It requires a pre-arranged plan and it presupposes prior concert. Therefore, there must be prior meeting of minds. The prior concert or meeting of minds may be determined from the conduct of the offenders unfolding itself during the course of action and the declaration made by them just before mounting the attack. It can also be developed at the spur of the moment but there must be pre-arrangement or premeditated concert. It is now well settled that the common intention required by Section 34 I.P.C. is different from similar intention. As has been observed by the Privy Council in Mahbub Shah v. King Emperor I.L.R. (1945) Ind Ap 148, common intention within the meaning of Section 34 implies a prearranged plan, and to convict the accused of an offence applying the Section it should be proved that the criminal act was done in concert pursuant to the prearranged plan and that the inference of common intention should never be reached unless it is a necessary inference deducible from the circumstances of the case. In the case of Hira Lal Malik v. State, 1977 CriLJ 1921, the Supreme Court observed that : “Common intention is a state of mind of an accused which can be inferred objectively from his conduct displayed in the course of commission of crime as also prior and subsequent attendant circumstances. Mere participation in the crime with others is not sufficient to attribute common intention to one of others involved in the crime. The subjective element in common intention therefore should be proved by objective test. Mere participation in the crime with others is not sufficient to attribute common intention to one of others involved in the crime. The subjective element in common intention therefore should be proved by objective test. It is only then one accused can be made vicariously liable for the acts and deeds of the other co-accused.” The Hon'ble Supreme Court in the case of Ramesh Singh @ Photti v. State of A.P., (2004) 11 SCC 305 , has extensively dealt with the scope of Section 34 of the IPC. It was observed that : “To appreciate the arguments advanced on behalf of the appellants it is necessary to understand the object of incorporating Section 34 in the Indian Penal Code. As a general principle in a case of criminal liability it is the primary responsibility of the person who actually commits the offence and only that person who has committed the crime can be held to guilty. By introducing Section 34 in the penal code the Legislature laid down the principle of joint liability in doing a criminal act. The essence of that liability is to be found in the existence of a common intention connecting the accused leading to the doing of a criminal act in furtherance of such intention. Thus, if the act is the result of a common intention then every person who did the criminal act with that common intention would be responsible for the offence committed irrespective of the share which he had in its perpetration. Section 34IPC embodies the principles of joint liability in doing the criminal act based on a common intention. Common intention essentially being a state of mind it is very difficult to procure direct evidence to prove such intention. Therefore, in most cases it has to be inferred from the act like, the conduct of the accused or other relevant circumstances of the case. The inference can be gathered by the manner in which the accused arrived at the scene, mounted the attack, determination and concert with which the attack was made, from the nature of injury caused by one or some of them. The contributory acts of the persons who are not responsible for the injury can further be inferred from the subsequent conduct after the attack. In this regard even an illegal omission on the part of such accused can indicate the sharing of common intention. The contributory acts of the persons who are not responsible for the injury can further be inferred from the subsequent conduct after the attack. In this regard even an illegal omission on the part of such accused can indicate the sharing of common intention. In other words, the totality of circumstances must be taken into consideration in arriving at the conclusion whether the accused had the common intention to commit an offence of which they could be convicted. (See Noor Mohammad Yusuf Momin AIR 1971 SC 855)''. In case of Nand Kishore v. State of Madhya Pradesh, (2011) 12 SCC 120 , the Apex Court discussed the ambit and scope of Section 34 Indian Penal Code as well as its applicability to a given case, as under: “20. A bare reading of this section shows that the section could be dissected as follows: (a) Criminal act is done by several persons; (b) Such act is done in furtherance of the common intention of all; and (c) Each of such persons is liable for that act in the same manner as if it were done by him alone. It was held that these three ingredients would guide the court in determining whether an accused is liable to be convicted with the aid of Section 34. While first two are the acts which are attributable and have to be proved as actions of the accused, the third is the consequence. Once the criminal act and common intention are proved, then by fiction of law, criminal liability of having done that act by each person individually would arise. The criminal act, according to Section 34 Indian Penal Code must be done by several persons. The emphasis in this part of the section is on the word "done". It only flows from this that before a person can be convicted by following the provisions of Section 34, that person must have done something along with other persons. Some individual participation in the commission of the criminal act would be the requirement. Every individual member of the entire group charged with the aid of Section 34 must, therefore, be a participant in the joint act which is the result of their combined activity. Some individual participation in the commission of the criminal act would be the requirement. Every individual member of the entire group charged with the aid of Section 34 must, therefore, be a participant in the joint act which is the result of their combined activity. In view of the above discussion, it is explicit that to establish a case under Section 34 IPC, prosecution has to prove beyond all reasonable doubt that there was a pre-arranged plan to commit the particular offense and thus it is necessary the appellant had the knowledge of the intention of his co-accused, and they voluntarily shared the said intention. The prosecution has to establish that in furtherance of the said intention, the appellant committed certain overt act which was responsible for the murder of the deceased. It is not that any and every act done during the course of attack on the deceased would indicate that the appellant shared the common intention and only such overt act may be relevant which indicate that the appellant also shared the intention to cause the death of the deceased. In the absence of such material, the court cannot come to the conclusion that the appellant also shared the common intention of the co-accused. To establish a case under Section 34 IPC, prosecution has to prove prior meeting of minds. However, prior concert or meeting of minds may be determined from the conduct of the offenders unfolding itself during the course of action and the declaration made by them just before mounting the attack and that it can also be developed at the spur of the moment but there must be pre-arrangement or premeditated concert. The essence of that liability is to be found in the existence of common intention animating the accused leading to the doing of a criminal act in furtherance of such intention. The distinct feature of Section 34 is the element of participation in action. 25. In the light of above discussed position of law, in the instant case, it may be observed that there is no evidence that accused-appellant Jaipal had the knowledge of the intention of his co-accused Ghasi or that they voluntarily shared the said intention. The prosecution could not establish that in furtherance of the said intention, the accused-appellant committed certain overt act which was responsible for the murder of the deceased. The prosecution could not establish that in furtherance of the said intention, the accused-appellant committed certain overt act which was responsible for the murder of the deceased. Every act done during the course of attack on the deceased would not imply that the accused-appellant shared the common intention. Mere fact that accused-appellant has flashed torch light and thereafter co-accused fired a shot would not establish that all accused persons shared common intention to commit murder of deceased. Here we may add that as per prosecution version there was already light of lantern at the spot. As stated earlier, to establish a case under Section 34 IPC, prosecution has to prove prior meeting of minds. No doubt prior concert or meeting of minds may be determined from the conduct of the offenders unfolding itself during the course of action and the declaration made by them just before mounting the attack and it can also be developed at the spur of the moment but there must be prearrangement or premeditation concert. In the instant case there is absolutely no evidence that all the three accused-appellants have a prearranged plan to commit murder of deceased. No doubt, generally it is difficult to lead evidence of common intention and that common intention may be proved by the conduct and overt act of accused appellant, however, in the present case, there is absolutely no such fact or evidence which could indicate that accused-appellant Jaipal has shared common intention with other accused persons to commit murder of the deceased. Even there is no evidence to indicate that accused-appellant Jaipal was aware that accused-appellant Ghasi was having pistol. It is not a case of the prosecution that accused-appellant Jaipal has made any exhortation or caused any injuries to the deceased. At this juncture, it would also be pertinent to mention here that deceased-accused-appellant Ghasi was charged and convicted under Section 302 of I.P.C. simplicitor for causing the murder of the deceased Sewa Ram, while accused-appellant Jaipal and co accused Dolat were charged under Section 302/34 IPC and were convicted with the aid of Section 34 IPC. Thus, prosecution has not come with a case that all the three accused-persons were having common intention to commit murder of deceased Sewa Ram. Thus, prosecution has not come with a case that all the three accused-persons were having common intention to commit murder of deceased Sewa Ram. Had it been so, accused-appellant Ghasi might also have been charged under Section 302/34 of I.P.C. In view of these facts, it could not be said that accused-appellant Jaipal shared common intention with accused Ghasi, who caused injury to deceased, to commit murder of the deceased. 26. Considering, entire evidence on record and discussion made herein above, the evidence and circumstances brought on record do not make out a case to convict the accused-appellant Jaipal for commission of murder of the deceased with the aid of Section 34 of the IPC. It appears doubtful that accused-appellant Jaipal shared common intention with other accused persons to commit murder of deceased and thus, he is entitled for the benefit of doubt. 27. Accordingly, the impugned judgment and order of conviction and sentence against accused-appellant Jaipal is set aside and accused-appellant Jaipal is acquitted under Section 302/34 of I.P.C. He is on bail, thus no further order is required in his respect. 28. Appeal is allowed. 29. Let a copy of this order be sent to the court concerned for information.