JUDGMENT : S. Chandrashekhar, J. 1. Both father and son along with an unknown person are said to have committed murder of Budhu Rana. On the basis of fardbeyan of Smt. Padma Rana, wife of the deceased, Chakulia P.S. Case No. 05 of 1992 was registered against the appellants and unknown under section 302/34 of the Indian Penal Code. 2. During the investigation the unknown assailant who has fired pistol shot on Budhu Rana was not found and a charge-sheet was submitted against the accused-appellants under section 302/34 of the Indian Penal Code and under section 27 of the Arms Act. 3. In Sessions Trial No. 76 of 1993, the appellants have been convicted and sentenced to R.I. for life under section 302/34 of the Indian Penal Code. 4. During pendency of this criminal appeal, the appellant, namely, Anukul Rana has passed away and, accordingly, this criminal appeal qua the appellant, namely, Anukul Rana has abated vide order dated 26.11.2019. 5. During the trial the prosecution has examined eight witnesses; the informant is P.W. 2. 6. The prosecution has projected the informant and her step-son, namely, Mritunjay Rana as eye-witnesses. 7. In her fardbeyan, the informant has stated that in the afternoon of 19.01.1992 she had gone to village fair (Kaliam Mela) with her husband. In the evening they started for home and on the way Ashit Kumar Rana joined them. There was a quarrel between her husband and Ashit Kumar Rana while returning home on account of a long standing land dispute. At about 7:00 p.m. in the evening when she reached near her village, Anukul Rana and Ashit Kumar Rana and one unknown person suddenly appeared there. Anukul caught hold of her while Ashit Kumar Rana overpowered her husband and the unknown person fired a pistol shot on her husband. On her raising cries several villagers assembled there and the accused persons fled away towards Guhaldangra. Her husband had died, blood was oozing from his body. The informant has been examined in the court as P.W. 2. She has deposed in the court about her visit to Kaliam Mela with her husband, Ashit Kumar Rana coming behind them and a quarrel between her husband and Ashit Kumar Rana on their way home. She has stated about land dispute between her husband and Ashit Kumar Rana and firing at her husband by the unknown person. She has deposed in the court about her visit to Kaliam Mela with her husband, Ashit Kumar Rana coming behind them and a quarrel between her husband and Ashit Kumar Rana on their way home. She has stated about land dispute between her husband and Ashit Kumar Rana and firing at her husband by the unknown person. Her step-son, namely, Mritunjay Rana has been examined as P.W. 5. He has claimed that he has seen the incident. At the time of the occurrence he was residing at village-Supua. He has stated that his statement was recorded by the police and after the incident they were threatened. He had deposed in the court that Anukul Rana and Ashit Kumar Rana along with one unknown person have killed his father. 8. During their cross-examination, P.W. 2 and P.W. 5 have stood to their grounds. P.W. 2 has stated that the place of occurrence is about 200-300 yards from her house. She has stated that since the unknown person has suddenly fired at her husband she had no time to intervene. Presumably to a suggestion by the defence that at the time of incident he was not residing at village-Supua, P.W. 5 has stated that at that time he was in village-Supua, however, after the incident due to threats to him he had left the village. 9. The evidence of P.W. 2 and P.W. 5 is corroborated by P.W. 1 and P.W. 3. They are not the eye-witnesses but they have stated that when they reached the place of occurrence wife of the deceased informed them that Anukul Rana and Ashit Kumar Rana along with one unknown person have killed her husband. 10. Mr. Kanti Kumar Ojha, the learned counsel for the surviving appellant contends that: (i) both eye-witnesses are interested witness, (ii) enmity between the parties is admitted, (iii) no independent witness has been examined during the trial, and (iv) non-examination of the investigating officer has caused serious prejudice to the appellant. 11. In the first place, P.W. 1 and P.W. 3 are independent witnesses. They have arrived at the place of occurrence shortly after the incident. The incident has occurred at about 7:00 p.m. on 19.01.1992 and the fardbeyan of wife of the deceased has been recorded at about 22:45 hours on the same day. 11. In the first place, P.W. 1 and P.W. 3 are independent witnesses. They have arrived at the place of occurrence shortly after the incident. The incident has occurred at about 7:00 p.m. on 19.01.1992 and the fardbeyan of wife of the deceased has been recorded at about 22:45 hours on the same day. In her fardbeyan, the informant has named the appellants as the persons who along with one unknown person have killed her husband. She has stated that it was a moon-lit night and she has identified the appellants. In our opinion, on such evidence, false implication of the appellants is ruled out. It is also relevant in this context to record that a First Information Report was lodged at 11:30 a.m. next day and the postmortem examination was conducted on 20.01.1992. These contemporaneous documents which are prepared on the events which have happened in quick succession would also establish that the appellants have not been named in the First Information Report after deliberations. 12. P.W. 4 and P.W. 6 have not supported the prosecution, but then, they are not the eye-witnesses. 13. Dr. Surender Jha-P.W. 7, who has conducted the postmortem on 20.01.1992, has observed the following on the person of Budhu Rana: (i) Fracture of hyoid bone. (ii) Pellets travelled and spread through right side of neck damaging all the vital structures of right side of lower neck and the pellets found lodged in the base of neck about the right clavicle. (iii) Few pellets travelled in the region of upper part of right lung rupturing the upper part of lungs. The pellets were lodged in the upper portion of the right lung. 14. In the opinion of the doctor, the injuries were ante-mortem in nature and caused by fire arm. The death has occurred within 24 hours of the postmortem examination. The medical evidence thus corroborates the ocular evidence in so far cause of death and time of firing upon Budhu Rana are concerned. 15. In the aforesaid state of evidences, particularly, cogent and consistent evidence of P.W. 2 and P.W. 5, non-examination of the investigating officer during the trial has become irrelevant. The defence has failed to show what prejudice was caused to the accused persons during the trial. There is no universal rule that in every case in which investigating officer is not examined prejudice would be caused to the accused. The defence has failed to show what prejudice was caused to the accused persons during the trial. There is no universal rule that in every case in which investigating officer is not examined prejudice would be caused to the accused. In face of the reliable and trustworthy evidence of P.W. 2 and P.W. 5, lapses during the investigation are immaterial. In our opinion, lapses such as, failure to produce serological report on blood-stained soil, recovery of crime weapon and cloths of the deceased would not shake foundation of the prosecution's case [refer: "Motilal and Another Vs. State of Rajasthan" reported in (2009) 7 SCC 454 ]. 16. Having said so, we hold that the prosecution has proved presence of the appellant at the place of occurrence and at the time of occurrence. 17. The intention of a person can be gathered from the words spoken and his conduct. The intention of an accused can also be gathered from the manner of occurrence, the weapon used in the crime and the role played by him. 18. Section 34 of the Indian Penal Code postulates vicarious liability of all for the act of one if the criminal act has been done in furtherance of the common intention of all. In the celebrated judgment in "Mahbub Shan Vs. Emperor" reported in AIR 1945 PC 118 , the Privy Council has observed; "when a criminal act is done by several persons, each of such persons is liable for that act in the same manner as if the act was done by him alone". In "Israr Vs. State of U.P." reported in (2005) 9 SCC 616 , it has been found that a person who was holding the deceased and restraining his movement enabling the co-accused to inflict knife-blows causing death of the deceased was sharing common intention to cause death and it was held that he was rightly convicted under Section 302 with the aid of Section 34 IPC. The Hon'ble Supreme Court has observed as under: 21. 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 Hon'ble Supreme Court has observed as under: 21. 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. 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 prearranged or on the spur of the moment; but it must necessarily be before the commission of the crime. The true contents of the section are 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. 22. As it originally stood Section 34 was in the following terms: "34. When a criminal act is done by several persons, each of such persons is liable for that act in the same manner as if the act was done by him alone." 23. 22. As it originally stood Section 34 was in the following terms: "34. When a criminal act is done by several persons, each of such persons is liable for that act in the same manner as if the act was done by him alone." 23. In 1870, it was amended by the insertion of the words "in furtherance of the common intention of all" after the word "persons" and before the word "each", so as to make the object of Section 34 clear. This position was noted in Mahbub Shah v. Emperor. 24. The section does not say "the common intention of all", nor does it say "and 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. As a result of the application of principles enunciated in Section 34, when an accused is convicted under Section 302 read with Section 34, in law it means that the accused is liable for the act which caused death of the deceased in the same manner as if it was done by him alone. The provision is intended to meet a case in which it may be difficult to distinguish between acts of individual members of a party who act in furtherance of the common intention of all or to prove exactly what part was taken by each of them. As was observed in Chinta Pulla Reddy v. State of A.P. 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." 19. The specific allegation against the appellant, namely, Ashit Kumar Rana is of overpowering Budhu Rana while the third one has fired pistol shot which has proved fatal. The appellant is the one who had started a quarrel with the husband of the informant on their way home. He had a long-standing land dispute with the informant's husband. He has come together with his father and the shooter and after firing at Budhu Rana fled away together with the others. On such facts, it must be held that he shared common intention to kill Budhu Rana. 20. He had a long-standing land dispute with the informant's husband. He has come together with his father and the shooter and after firing at Budhu Rana fled away together with the others. On such facts, it must be held that he shared common intention to kill Budhu Rana. 20. In view of the aforesaid discussions, we find no ground to interfere in this matter and, accordingly, Criminal Appeal (DB) No. 483 of 2001 is dismissed. 21. The appellant, namely, Ashit Kumar Rana @ Bado Rana is on bail and, accordingly, bail-bonds furnished by him is cancelled. 22. He shall surrender before the court below to serve the remaining sentence. 23. Let a copy of the judgment be transmitted to the Court concerned through 'FAX'. 24. Let lower-court records be transmitted to the court concerned, forthwith.