JUDGMENT : A.M. Badar, J. By this appeal, appellant/accused Sahbuddin @ Sahabudia has challenged the judgment and order dated 05.12.1994 passed by the learned Single Judge, Katihar, in S. Tr. No. 55 of 1991 thereby convicting the appellant/accused of the offence punishable under Sections 302 read with Section 34 of the Indian Penal Code for committing murder of Mahendra Yadav and sentencing him to suffer imprisonment for life. For sake conveyance the appellant shall be referred to an accused. 2. Facts in brief leading to the prosecution of the accused as fathered from the police report can be summarized thus : (a) It is case of the prosecution that in past absconding accused Mahendra Ravidas had outraged the modesty of wife of Mahendra Yadav (since deceased). Therefore, Mahendra Yadav had scolded Mahendra Ravidas. (b) On 10.08.1990 Mahendra Yadav (since deceased) was going by walking to Railway Station, Barsoi along with his father-in-law P.W. 2 Pannu Yadav. This journey was for reaching Pannu Yadav to that Railway Station, in order to enable Pannu Yadav to go to his house. P.W. 2 Pannu Yadav had been to the house of his son-in-law Mahendra Yadav (since deceased) and stayed there for about two days. In this return journey of Mahendra Yadav (since deceased) along with P.W. 2 Pannu Yadav to Barsoi Railway Station, in the after-noon and about 01.30 to 2.00 p.m. of 10.08.1990 the accused along with absconding accused Mahendra Ravidas had committed murder of Mahendra Yadav by stabbing a knife on his abdomen. Role attributed to the present accused is that of catching hold of deceased Mahendra Yadav from behind in order to facilitate accused Mahendra Ravidas in giving of blow of knife on abdomen of Mahendra Yadav. This incident of murderous assault on Mahendra Yadav was witnessed even by P.W. 1 Ram Lal Yadav who was returning from Railway Station to his house in the after-noon of 10.08.1990. (c) It is case of the prosecution that P.W. 4 Mewalal Roy and P.W. 5 Tepu Roy @ Sagar Roy had also witnessed the fact that absconding accused Mahendra Ravidas accompanied by present accused Sahuddin @ Sahabudia were following deceased Mahendra Yadav and his father-in-law Pannu Lal Yadav when they both were proceeding towards Barsoi Railway Station. (c) It is case of the prosecution that P.W. 4 Mewalal Roy and P.W. 5 Tepu Roy @ Sagar Roy had also witnessed the fact that absconding accused Mahendra Ravidas accompanied by present accused Sahuddin @ Sahabudia were following deceased Mahendra Yadav and his father-in-law Pannu Lal Yadav when they both were proceeding towards Barsoi Railway Station. (d) After the incident, P.W. 1 Ram Lal Yadav who witnessed the incident rushed to other relatives of deceased Mahendra Yadav and disclosed the incident of murder of Mahendra Yadav to them. P.W. 7 Jagdish Yadav who happens to be the brother of Mahendra Yadav then lodged the report of the incident to police officer, Barsoi Police Station on 10.08.1990 itself and accordingly the crime in question came to be registered against the present accused as well as absconding accused. (e) During the course of investigation inquest notes were taken and knife lying on the spot of the incident, blood stained clothes, stones smeared with blood came to be seized by the investigating officer. Dead body was sent for post mortem examination. Statement of witness came to be recorded and on completion of routine investigation, the present appellant/accused came to be charge sheeted. It is reported that the co-accused is absconding. (f) The charge for the offence punishable under Section 302 read with 34 of the Indian Penal Code was framed against the appellants. He pleaded not guilty and claimed trial. The prosecution adduced its evidence by examining in all ten witnesses and by tendering documentary evidence also. In rebuttal the accused did not examine any defence witness. After hearing the parties learned trial Court by the impugned judgment recording the finding that the accused has committed murder of Mahendra Yadav by sharing common intention and accordingly he came to be convicted for offence punishable under Section 302 read with 34 of the Indian Penal Code. He is sentenced to suffered imprisonment for life. 3. We heard Mr. Navin Kumar, learned Amicus Curiae appointed by this Court on 16.11.2021 for assisting the Court. By taking us through the record and proceedings he argued that the investigating officer of this case is not examined by the prosecution. Evidence of the prosecution suffers from contradictions in respect of the timing of the incident. He further submitted that chain of circumstances is not proved by the prosecution. 4. As against this Mr. Dr. By taking us through the record and proceedings he argued that the investigating officer of this case is not examined by the prosecution. Evidence of the prosecution suffers from contradictions in respect of the timing of the incident. He further submitted that chain of circumstances is not proved by the prosecution. 4. As against this Mr. Dr. Mayanand Jha, learned Senior Counsel appearing for the prosecution vehementally argued that there is no question of establishing chain of circumstance in a case of direct evidence against the accused. As per the submission of the learned Senior Counsel appearing for the prosecution, evidence of witnesses namely P.W. 1 Ram Lal yadav and P.W. 2 Pannu Yadav is reliable and trustworthy. It is gdaining corroboration from evidence of P.W. 4 Mewalal Roy and P.W. 5 Tepu Roy @ Sagar Roy. 5. We have gone through the record and proceedings and have considered the rival submissions. It needs to be put on record that the instant case is not based on circumstantial evidence and therefore we find no substance in contention of Mr. Navin Kumar, Amicus Curiae that the prosecution has failed to establish the chain of circumstance. The prosecution has examined two witnesses to prove conduct of the accused persons soon prior to the incident and has also examined two witnesses who are said to be eye witnesses to the incident in question. If their evidence is held to be reliable and trustworthy then there is no question of establishing the chain of circumstance to infer guilt of the accused with the help of indirect evidence. 6. Death of Mahendra Yadav on 10.08.1990 is not in much dispute. The dead body of Mahendra Yadav is seen from evidence of P.W. 6 Dr. Birendra Prasad Gupta, Medical Officer of Subdivisional Hospital, Kishanganj, was received by the said Hospital for conducting post mortem examination. This witness has conducted autopsy on dead body of Mahendra Yadav, son of Mahadeo Lal Yadav. His evidence which is corroborated by the contemporaneous report of post mortem examination prepared by him goes to show that dead body of Mahendra Yadav was having perforating wound of size of 1.5 cm x 1/2 cm x abdominal cavity deep just above umbilical region. It was found that back of omentum was protruding out of the said injury. Stomach of the dead body was found also punctured from which undigested foot was oozing. It was found that back of omentum was protruding out of the said injury. Stomach of the dead body was found also punctured from which undigested foot was oozing. Abdominal cavity of the dead body of Mahendra Yadav was full with blood and blood clots. By noting this condition of the wound on the dead body P.W. 6 Dr. Birendra Prasad Gupta came to the conclusion that death of Mahendra Yadav was caused by sock and hemorrhage as a result of penetrating wound. The report of the post mortem examination is corroborating his version. His evidence is not shattered in the cross-examination, hence, with evidence it can be concluded that deceased Mahendra Yadav tried homicidal death on 10.08.1990. 7. Soon after death of Mahendra Yadav P.W. 7 Jagdish Yadav reached on the spot of the incident. He is brother of deceased Mahendra Yadav. He was informed about the incident by P.W. 1 Ram Lal Yadav – uncle of the deceased. As per version of P.W. 7 Jagdish Yadav he rushed to the spot after P.W. 1 Ram Lal Yadav had informed him about murder of Mahendra Yadav and saw the dead body of Mahendra Yadav lying on the metal and kuchha road near the railway line. He also deposed that a knife was lying there. As per his version he lodged the first information report (Exhibit 1) on the spot of the incident itself when the police officer reached there. He has also stated about taking inquest notes and seizure of knife as well as other articles from the spot by the police officer. In his cross-examination it is brought on record that at the time of lodging the first information report by him he noted that the present appellant/accused was in custody of the police officer and was sitting in the jeep. 8. As P.W. 7 Jagdish Yadav had received information about the incident from P.W. 1 Ram Lal Yadav, let us examine evidence of P.W. 1 Ram Lal Yadav. This witness is uncle of deceased Mahendra Yadav. He deposed that at about 02.00 pm of the day of the incident, he was returning to his home from Barsoi Railway Station. During his return journey he saw accused persons holding Mahendra Yadav (since deceased). Absconding accused Mahendra Ravidas was found giving a blow of knife on abdomen of Mahendra Yadav. This witness is uncle of deceased Mahendra Yadav. He deposed that at about 02.00 pm of the day of the incident, he was returning to his home from Barsoi Railway Station. During his return journey he saw accused persons holding Mahendra Yadav (since deceased). Absconding accused Mahendra Ravidas was found giving a blow of knife on abdomen of Mahendra Yadav. P.W. 1 Ram Lal Yadav further stated that the Mahendra Yadav fell down on metal laid on kuchha portion of road and the accused persons ran away by leaving the knife on the spot of the incident itself. P.W. 1 Ram Lal Yadav further stated that P.W. 2 Pannu Yadav was present on the spot. As per P.W. 1 Ram Lal Yadav the motive behind the incident is scolding of absconding accused Mahendra Ravidas by deceased Mahendra Yadav on account of outraging the modesty of his wife. From cross-examination of this witness it is brought on record that upon hearing the shouts of Mahendra Yadav, he rushed but by that time Mahendra Yadav fell down and accused persons ran away. Except this there is nothing worth mentioning in the cross-examination of P.W. 1 Ram Lal Yadav to cast shadow of doubt on his version. Moreover, version of this witness in the chief cross-examination is cemented by his cross-examination which demonstrates that he rushed to save deceased Mahendra Yadav but by that time Mahendra Yadav had collapsed and the accused persons ran away. Thus, this witness has seen the incident of murder of Mahendra Yadav. 9. P.W. 2 Pannu Yadav is father-in-law of deceased Mahendra Yadav. Since prior to two days from the incident, he was staying at the house of deceased Mahendra Yadav. This part of his evidence remained unshattered at all in the cross-examination. As per evidence of P.W. 2 Pannu Yadav, on the day of the incident deceased Mahendra Yadav was accompanying him for reaching him to Barsoi Railway Station. P.W. 2 Pannu Yadav further testified that appellant/accused Sahbuddin @ Sahabudia and absconding accused Mahendra Ravidas were walking behind them in the same direction. P.W. 2 Pannu Yadav further stated that on the way to the Railway Station appellant/accused Sahbuddin @ Sahabudia caught hold of deceased Mahendra Yadav from behind and then absconding accused Mahendra Ravidas gave a blow of knife on abdomen of Mahendra Yadav. That blow landed above the naval of the deceased. P.W. 2 Pannu Yadav further stated that on the way to the Railway Station appellant/accused Sahbuddin @ Sahabudia caught hold of deceased Mahendra Yadav from behind and then absconding accused Mahendra Ravidas gave a blow of knife on abdomen of Mahendra Yadav. That blow landed above the naval of the deceased. Mahendra Yadav fell down and subsequently died. Even P.W. 2 Pannu Yadav testified that the incident was also seen by P.W. 1 Ram Lal Yadav. 10. P.W. 2 Pannu Yadav was cross-examination by the defence. It is brought on record from his cross-examination that one eye of this witness is totally damaged. The Barsoi Railway Station was at a distance of 20-30 meters from the house of deceased Mahendra Yadav. It is also brought on record from the cross-examination of this witness that the appellant/accused Sahbuddin @ Sahabudia caught hold of Mahendra Yadav from behind and as soon as the blow of knife landed on his person, Mahendra Yadav fell down. This witness claims that his statement recorded after 10-15 of the occurrence. However there is no further cross-examination of this witness on this aspect. It is seen from this material elicited in cross-examination of P.W. 2 Pannu Yadav that case of prosecution is strengthen by the material coming on record from his cross-examination. Evidence of this witness is clear, cogent and consistent on the aspect that the appellant/accused caught hold of deceased Mahendra Yadav from behind in order to enable absconding accused Mahendra Ravidas to inflict a blow of knife on his abdomen. 11. The prosecution has also adduced evidence regarding conduct of accused persons soon prior to the incident. P.W. 4 Mewalal Roy and P.W. 5 Tepu Roy @ Sagar Roy are residents of the village of deceased. Both of them, in unison deposed that they saw both the accused persons following P.W. 2 Pannu Yadav and deceased Mahendra Yadav. P.W. 4 Mewalal Roy stated that when he was outside his house, he saw Mahendra Yadav (since deceased) and P.W. 2 Pannu Yadav going towards Barsoi Railway Station and both accused persons were going behind them. His cross-examination shows that he saw all these four persons proceeding towards Barsoi Railway Station from the distance of 20 to 25 cubits. His cross-examination examination shows that he has not seen knife on the person of absconding accused Mahendra Ravidas. His cross-examination shows that he saw all these four persons proceeding towards Barsoi Railway Station from the distance of 20 to 25 cubits. His cross-examination examination shows that he has not seen knife on the person of absconding accused Mahendra Ravidas. P.W. 5 Tepu Roy @ Sagar Roy has stated that he was returning from the village to Barsoi Railway Station and on the way he saw P.W. 2 Pannu Yadav accompanied by deceased Mahendra Yadav proceeding towards Railway Station. This witness also saw that both the accused persons were also proceeding to the direction of the Railway Station by walking behind P.W. 2 Pannu Yadav and deceased Mahendra Yadav. Evidence of both these witnesses is absolutely unshattered in the cross-examination. Thus, pre-event conduct of appellants Sahbuddin @ Sahabudia in following the victim speak volumes. 12. With this evidence in our considered opinion the prosecution has established the fact that when P.W. 2 Pannu Yadav accompanied by deceased Mahendra Yadav were proceeding towards Barsoi Railway Station, appellant/accused Sahbuddin @ Sahabudia caught hold of Mahendra Yadav from behind to facilitate Mahendra Ravidas in inflicting a stab wound on abdomen of deceased Mahendra Yadav. It was a forceful blow as seen from version of P.W. 6 Dr. Birendra Prasad Gupta causing extensive damage to the internal organs of the deceased and ultimately causing death of Mahendra Yadav. It is seen from the medical evidence that the act of stabbing at the abdomen of the deceased by means of knife was done with the intention of causing such bodily injury which the assailants were certainly knowing as sufficient to cause death of Mahendra Yadav. Forceful fatal blow on the abdomen of the victim, by using a knife reflect intention of the assailants which can be non-else than the commission of murder. 13. The question which follows for re-consideration is whether with the aid of Section 34 of the Indian Penal Code, present appellant/accused can be convicted for the offence punishable under Section 302 of the Indian Penal Code for causing murder of Mahendra Yadav. Undoubtedly the existence of a common intention amongst the participants in a crime is absolutely essential for attributing vicarious liability as envisaged by Section 34 of the Indian Penal Code. Undoubtedly the existence of a common intention amongst the participants in a crime is absolutely essential for attributing vicarious liability as envisaged by Section 34 of the Indian Penal Code. However, this does not implies that the acts of the several or of all the accused in commission of an offence jointly must be the same or identical in nature. What is material is that the acts different in character must have been actuated by one and the same common intention in order to attract the provisions of Section 34 of the Indian Penal Code. Intention is state of mind and seldom there can be a direct proof thereof. As such, such intention can be infered from the circumstances appearing from the proved facts and the material on record. Such inference need not be drawn only from the nature of injury inflicted but also can be deduced from other circumstances. In the matter of Krishnan and another Vs. State Rep. by Inspector of Police A.I.R. 2003 SC 2978 (1) while explaining this position of law the Hon’ble Supreme Court has held that (i) It is to be seen whether the accused persons in furtherance of their common intention caused the death of the deceased on the alleged date, time and place. A charge under S. 34 of I.P.C., presupposes the sharing of a particular intention by more than one person to commit a criminal act. The dominant feature of S. 34 is the element of participation in actions. This participation need not in all cases be by physical presence. Common intention implies acting in concert. There is a prearranged plan which is proved either from conduct or from circumstances or from incriminating facts. The principle of joint liability in the doing of a criminal act is embodied in S. 34 of the I.P.C. The existence of common intention is to be the basis of liability. That is why the prior concert and the pre-arranged plan is the foundation of common intention to establish liability and guilt. The principle of joint liability in the doing of a criminal act is embodied in S. 34 of the I.P.C. The existence of common intention is to be the basis of liability. That is why the prior concert and the pre-arranged plan is the foundation of common intention to establish liability and guilt. (ii) Section 34 deals with the doing of separate acts, similar or diverse, by several persons, if all are done in furtherance of common intention, each person is liable for the result of them all as if he had done them himself' for 'that act' and 'the act' in the latter part of the section must include the whole section covered by a ' criminal act' in the first part, because they refer to it. Constructive liability under S. 34 may arise in three well-defined cases. A person may be constructively liable for an offence which he did not actually commit by reason of :- (a) The common intention of all to commit such an offence (Section 34) (b) His being a member of a conspiracy to commit such an offence (Section 120-A) (c) His being a member of unlawful assembly the members whereof knew that an offence was likely to be committed (Section 149) Section 34 is framed to meet a case in which it may be difficult to distinguish between the acts of individual members of a party or to prove exactly what part was taken by each of them. The reason why all are deemed guilty in such cases is, that the presence of accomplices gives encouragement, support and protection to the person actually committing the act. The provision embodies the commonsense principle that if two or more persons intentionally do a thing jointly it is just the same as if each of them had done it individually. (iii) In view of the factual aspects highlighted above, the inevitable conclusion is that accused Krishnan and Ganesan are equally liable for commission of offence. (iv) Applicability of Section 34 depends upon the facts and circumstances of each case. As such no hard and fast rule can be laid down as to the applicability or non-applicability of the Section 34. For applicability of the Section, it is not necessary that the acts of several persons charged with commission of an offence jointly, must be the same or identically similar. As such no hard and fast rule can be laid down as to the applicability or non-applicability of the Section 34. For applicability of the Section, it is not necessary that the acts of 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. (v) The fact situation in the present case has great similarity with those in Charan Singh Vs. State of Punjab ( AIR 1998 SC 323 ). In that case principal accused gave a gandasa blow from the sharp side on the head of the deceased. That was the fatal blow. Co-accused also assaulted the deceased with the gandasa on the backside near the shoulder of the deceased. It was held that attack at different places on different sides of the weapons of assault did not show absence of common intention. 14. Keeping in mind this position of law if evidence adduced by the prosecution in the instant case seen, it becomes clear to us that both assailants including the appellant/accused were following deceased Mahendra Yadav from their village. At that time absconding accused Mahendra Ravidas was having a knife. At the opportune time and place, present appellant/accused Sahbuddin @ Sahabudia caught hold of deceased Mahendra Yadav from behind. This act on the part of the appellant/accused Sahbuddin @ Sahabudia facilitated absconding accused Mahendra Ravidas in inflicting fatal wound on the deceased. Thus, it is crystal clear that the appellant/accused Sahbuddin @ Sahabudia was sharing the common intention of committing murder of Mahendra Yadav with co-accused Mahendra Ravidas and therefore he is also liable for the result of the act which they both intended commonly. 15. Non-examination of investigating officer is not a ritualistic formula to discard each and even prosecution case. No circumstances are brought on record by the defence to demonstrate that by non-examination of the investigating officer, prejudice is caused to the appellant/accused. In the instant case the prosecution with the aid of evidence coming from the trustworthy and reliable witnesses has established the offence alleged against the present appellant/accused. No circumstances are brought on record by the defence to demonstrate that by non-examination of the investigating officer, prejudice is caused to the appellant/accused. In the instant case the prosecution with the aid of evidence coming from the trustworthy and reliable witnesses has established the offence alleged against the present appellant/accused. Though P.W. 1 Ram Lal Yadav and P.W. 2 Pannu Yadav are related to the deceased, there is nothing in cross-examination of both these witnesses to infer that they are brought-up witnesses and are telling a lie. Their evidence appears to us reliable and trustworthy. Evidence on record demonstrates common intention sharing by the present appellant/accused with the absconding accused Mahendra Ravidas. Murder of Mahendra Yadav was certainly caused with an intention to cause his death by inflicting a forceful blow of knife on vital part of abdomen. 16. In the result, the Appeal is devoid of merit and the same is accordingly dismissed. 17. We direct the High Court Legal Service Authority to pay an amount of Rs.5,000/- to Mr. Navin Kumar for service rendered by him. Sunil Kumar Panwar, J. - I agree.