JUDGMENT Rohit Arya, J. - This Criminal Appeal is directed against the judgment of conviction and order of sentence dated 20/12/2000 passed by IV Additional Sessions Judge, Morena (M.P.) in Sessions Trial No.229 of 1996 whereby the present appellant stands convicted under Section 302 read with 34 of the IPC and sentenced to undergo imprisonment for life with a fine of Rs.5,000/- in default to suffer R.I. for six months. However, during pendency of this appeal, appellant no.1 Ramautar died and his name has been deleted from the array of appellants in pursuance of order dated 20/7/2022. 2. Prosecution story, as found proved, is that on 7/6/1996, at about 10 PM, complainant Tularam and his son Manoj were having dinner at the terrace of their house. After having the same, when Manoj got down and reached the Chowk (courtyard) outside his house, at that time, owing to previous enmity, Ramautar (since deceased), present appellant Mukesh and co-accused Rajesh reached there armed with Knives. Ramautar caught hold of Manoj, while Rajesh stabbed him on the adbomen due to which blood started oozing out and Manoj fell on the spot. Appellant Mukesh also caused knife injury on his right hand. Then Ramautar also dealt a knife blow on right shoulder of Manoj. When complainant Tularam came forward for his rescue, the present appellant Mukesh caused a knife injury on his head. Thereafter, Mahesh, Jitendra, Ramesh and Soneram tried to intervene. In the course of brawl, Jitendra and Meena also suffered injuries. Light was glowing in the courtyard. After the incident, the accused persons fled away. The complainant and family members of Manoj were bringing him in a Tractor to Morena but in the way to hospital, Manoj succumbed to the injuries so caused. Complainant Tularam lodged FIR (Ex.P/1) of the incident at Morena Police Station at about 11 PM, upon which crime was registered at 0/96. Thereafter, the matter was referred to concerned Police Station i.e. Matabasaiya, where the report (Ex.P/22) was regsitered on 8/6/1996 at 1.30 AM at Crime No. 61/96. During investigation, spot map & its description (Ex.P/2 & P/2A) was prepared by Mahesh Kumar Sharma (P.W.10). Thereafter, the matter was referred to concerned Police Station i.e. Matabasaiya, where the report (Ex.P/22) was regsitered on 8/6/1996 at 1.30 AM at Crime No. 61/96. During investigation, spot map & its description (Ex.P/2 & P/2A) was prepared by Mahesh Kumar Sharma (P.W.10). He seized plain and blood stained earth from the spot vide seizure memos (Ex.P/25 and Ex.P/26), issued Safina form (Ex.P/3), prepared Pancdhayatnama of the dead body (Ex.P/4) and forwarded application (Ex.P/23) to district hospital Morena for post mortem examination of the dead body of deceased. He also recorded statements of witnesses under section 161 of the Cr.P.C. On 14/6/1996, Ramautar, Mukesh and Rajesh were arrested vide arrest memos Ex.P/11, P/12 and P/13 respectively. Thereafter, upon discovery memos (Ex.P/14 and P/15) knife and blood stained Dhoti were seized from Ramautar vide seizure memos (Ex.P/18 and P/19). Similarly, upon discovery memos (Ex.P/16 and P/17), knives were recovered from appellant Mukesh and co-accused Rajesh vide seizure memos (Ex.P/20 and P/21). Upon collection of incriminating material during investigation, challan was filed in the Court of JMFC, who committed the case to the Court of Session for trial. 3. On being charged with the offence punishable under section 302 in alternative 302/34, IPC, the accused persons abjured the guilt and pleaded false implication. 4. To establish the charges, the prosecution examined as many as 10 witnesses including eye witnesses Tularam/complainant (PW1), Jitendra Sharma (PW2), Mahesh (PW3), and Sudha (PW6), whereas evidence of Mukesh (DW1), Ramawtar (DW2), Mahesh Sharma (DW3) and Mahesh Bhardwaj (DW4) were recorded in defence. 5. On consideration of the evidence on record, learned trial Judge, for the reasons recorded in the impugned judgment, found the appellant guilty of the offence charged with. He, therefore, convicted and sentenced him as indicated hereinabove. It is noteworthy that co-accused Rajesh absconded during trial and, as indicated above, appellant Ramautar passed away during pendency of this appeal. 6. Post mortem examination of Manoj was conducted by Dr.Vinod Gupta (PW8), who noted following injuries on his body vide autopsy report (Ex.P/24):- 1. 8 cm x 4 cm x 1cm incised wound on back of left arm upper 1/3 vertical 2. 3 cm x 3 cm x 4 cm triangular 1 cm deep incised wound over left aeromioclavicular joint. 3. 6 cm x 1 cm x 1/2 cm incised wound on left waist directed to medial upward. 4. 8 cm x 4 cm x 1cm incised wound on back of left arm upper 1/3 vertical 2. 3 cm x 3 cm x 4 cm triangular 1 cm deep incised wound over left aeromioclavicular joint. 3. 6 cm x 1 cm x 1/2 cm incised wound on left waist directed to medial upward. 4. 5 cm x 1 cm x 1/2 cm incised wound of left groin region, medial side, horizontal. 5. 3 cm x 2 cm x 1 cm incised wound on right gluetal region vertical 6. 8 cm x 2 cm x 1 cm incised wound on right forearm middle 1/3 oblique. 7. Incised wound 9 cm x 4 cm under right rib exposed with cut start from xiphoid process upward & laterally 3 cm below to right nipple wound open in thoracic cavity right by cutting 5th and 6th rib right and thoracic cavity full of blood. Right lung collapsed with incised wound 6 cm x 3 cm x 11/2 cm horizontal on right lower lobe. In the opinion of doctor, all the injuries were ante mortem in nature and the cause of death was hameorrahge and shock. The death was homicidal within 24 hours of the post mortem examination. The said post mortem report has been proved by Dr.Vinod Gupta (PW8) in his evidence before the trial Court. In paragraph 10 of his cross-examination, he has deposed that injuries no. 1 to 6 were not sufficient to cause death, while injury no.7 alone was sufficient to cause death in the ordinary course of nature. He further deposed that injury no.7 must have been inflicted with huge force and that is why it led to a wound of 9 cm x 4cm with depth upto thoracic cavity. He further clarified that injury no.7 was caused by single impact and that there cannot be any correspondence between size of weapon and size of wound. On the date of incident itself i.e. 7/6/1996, MLC of injured Tularam, complainant was conducted by Dr.Yogendra Singh (PW4), who noted following injury on his body vide MLC report (Ex.P/8) Incised wound of size 6 cm x .5 cm x .5 cm on parieto frontal region of scalp, skin obliquely cut above downwards, edge normal. The injury was caused by sharp edged object within 1-2 hours of medical examinaton. The injury was caused by sharp edged object within 1-2 hours of medical examinaton. On the same day, he also conducted MLC of injured Jitendra and noted following injury on his person vide Ex.P/6 Oblique cut of skin, red in colour, .5cm x .25 cm x .25 cm in size on dorsal aspect of 1st meta Carpo-phalangeal joint of index finger right. The injury was about 1-2 hours old, simple in nature, caused by sharp edged object. MLC of injured Meena was also conducted by Dr. Yogendra Singh (PW4) who noted following injury on her body vide MLC report (Ex.P/10):- Contusion, light red in colour of size 4 cm x 1 cm on right palm, caused by hard and blunt object. The injury was about 1-2 hours old and simple in nature. In his evidence before the trial Court, Dr. Yogendra Singh (PW4) has proved the MLC reports (Ex.P/6, P/8, and P/10). Thus from the medical evidence available on record, homicidal death of Manoj is proved beyond reasonable doubt. 7. Assailing the legality, validity and propriety of the impugned conviction and sentence, learned counsel for the appellant made the following submissions:- (1) The prosecution witnesses are members of the same family and no independent witness has been examined by the prosecution despite their alleged presence on the spot. Besides, the evidence of prosecution witnesses is fraught with material contradictions and omissions. As such, veracity of the prosecution story cannot be said to be established beyond reasonable doubt. (2) The appellants and complainant party are members of the same family, but their familial past is puddled with disputes. As such, they harbored grudge and anomosity. On 14/7/1990, the complainant party including Tularam (PW1), Jitendra (PW2), Mahesh (PW3) had assaulted the appellant party owing to which a case under Ss. 307 and 325, IPC was registered against them, which ultimately entailed into conviction of Ramautar and his wife Mahadevi for the offence punishable under S.325 of the IPC and sentence of 2 years' R.I., vide judgment dated 23/7/1998 (Ex.D/5). This was precisely the reason for false implication of the present appellant in the instant case. Besides, there was no mens rea for causing death of Manoj as there had been no dispute between the parties between 1990 to1996. (3) The appellants did not use to stay in the house where the incident is said to have occurred. This was precisely the reason for false implication of the present appellant in the instant case. Besides, there was no mens rea for causing death of Manoj as there had been no dispute between the parties between 1990 to1996. (3) The appellants did not use to stay in the house where the incident is said to have occurred. As such, the story of committing the offence after coming out from that house is totally false. (4) The prosecution version is not corroborated by medical evidence, inasmuch as in the FIR there is narration of only three injuries having been caused to the deceased, whereas in the post mortem report, 7 injuries have been noticed on his body. That apart, the situs of injuries as deposed by the eye- witnesses is also not consistent with the ocular evidence, inasmuch as no injury was noticed on the stomach, right hand and right shoulder of the deceased. Besides, from the evidence on record, it is not clear as to who was the author of injury no.7 on chest of the deceased which ultimately proved fatal. (5) The incident is said to have occurred at about 10 in the night and source of light on the spot is not proved. As such, the ocular evidence is not reliable. (6) There is nothing on record to suggest that the appellant shared the common intention to cause death of deceased and, therefore, his conviction under S.302, IPC with the aid of S.34 was totally uncalled for. Alternatively, it is submitted that the incident occurred in a heat of passion without any premeditation. As such, at the most offence under S.304 Part II was made out against the appellant. In response, learned Public Prosecutor, while referring to the incriminating pieces of evidence on record, submitted that the conviction is well merited. 8. Heard learned counsel for the parties. 9. PW1 Tularam, who is the father of Manoj (since deceased) is the complainant. He is also an injured witness. In his evidence before the trial Court, he has deposed that on 7/6/1996, he was on the terrace of his house along with Manoj, Mahesh, Meena,Sudha and Jitendra. Manoj and this witness were having dinner while Meena and Sudha were cooking. After having dinner, Manoj went downstairs. By that time this witness had also finished eating. Light was glowing. Manoj was going from stairs towards the courtyard. Manoj and this witness were having dinner while Meena and Sudha were cooking. After having dinner, Manoj went downstairs. By that time this witness had also finished eating. Light was glowing. Manoj was going from stairs towards the courtyard. At this juncture, Ramautar, Rajesh and Mukesh came there with common intention being armed with knives. By this time, this witness had also come down. He has further deposed that his house is adjacent to that of Ramautar having a common courtyard. Thereafter Ramautar caught hold of Manoj. Rajesh stabbed Manoj in his stomach due to which blood started oozing out. Thereafter Ramauatar left Manoj, who fell down. At this juncture, Mukesh gave a knife blow on the right hand of Manoj. He further deposed that the other injuries received by Manoj were also caused by Ramautar, Mukesh and Rajesh only. He has further deposed that when he tried to intervene, a knife blow was dealt by Mukesh on his head. On his shrieks, Mahesh, Meena, Jitendra, Sudha, Soneram, Meera and Thakurbeti had reached the spot and intervened, in the course of which, Jitendra and Meena received injuries. Thereafter, he and his family members lifted Manoj and put him on a wooden cot, while the miscreants fled from the spot. He and Mahesh went for bringing Tractor of Rambabu Yadav and after keeping Manoj in that Tractor proceeded for Morena Hospital. However, near Mudiyakheda, Manoj breathed his last. Thereafter, he reported the matter at Police Station, Morena which was recorded as Ex.P/1. After lodging of report at about 11 PM, this witness, Meena, Jitendra and Manoj were referred for Medical examination. Then he was admitted in hospital. Next day at about 6 AM, he reached his Village where spot map was prepared by the Investigating Officer. Thereafter, he again returned to hospital. In paragraph 5 of his cross-examination, he has deposed that he, Soneram and accused Ramautar are brothers. He further deposed that a case of causing injury to Ramautar 6-7 years back is still pending against him. After about an year of that incident, his father had expired. Then all the brothers had partitioned agricultural land and house. In paragraph 5 of his cross-examination, he has deposed that the house where incident occurred was constructed by his father and it was partitioned in four parts by his father only. After about an year of that incident, his father had expired. Then all the brothers had partitioned agricultural land and house. In paragraph 5 of his cross-examination, he has deposed that the house where incident occurred was constructed by his father and it was partitioned in four parts by his father only. He further deposed that courtyard of Ramautar is 6-7 feet wide, abutting thereto is the courtyard of Rambabu which is also 6-7 feet wide. In paragraph 6 of his cross-examination, he has clarified that there is a common gallery for all the brothers. In paragraph 9 of his cross-examination he has deposed that at the time of incident no neighbours were present, though after the incident crowd had gathered. In paragraph 14 and 15 he has deposed that he had informed about glowing of light while preparation of spot map and lodging of report. Though this witness was subjected to length cross-examination, but nothing substantial to the contrary could be elicited. 10. PW2 Jitendra Sharma is the son of PW1 Tularam and brother of deceased Manoj. He has deposed that on the fateful day, he and Mahesh were sitting on the terrace while his father and Manoj were having dinner. His sisters-in-law Sudha and Meena were cooking food and mother Thakurbeti was serving it. After having dinner, his brother Manoj reached the courtyard through stairs. Then this witness heard some noise. Light was glowing in the courtyard. He peeped down and saw that Ramautar had caught hold of Manoj. Then Rajesh stabbed Manoj on his stomach. When his father went down to save Manoj, Mukesh gave him a knife blow on his head. Then Mukesh dealt a knife blow on right hand of Manoj. Thereafter Ramautar, Mukesh and Rajesh continued wielding knife blows on Manoj causing injuries on various parts of his body including on groin and right hip. Manoj had suffered 5-6 knife injuries. Thereafter, this witness also came down and intervened, in the course of which, he suffered a knife blow at the base of his finger, though he could not see as to who had caused that injury. His sister-in-law Meena had also come on the spot who also suffered injury in the commotion. Thereafter, all the miscreants fled away. Thereafter, this witness also came down and intervened, in the course of which, he suffered a knife blow at the base of his finger, though he could not see as to who had caused that injury. His sister-in-law Meena had also come on the spot who also suffered injury in the commotion. Thereafter, all the miscreants fled away. Then they lifted Manoj and put him on a cot and thereafter brought him in the Tractor of Rambabu Yadav to Police Station but he had already died in the way near Mudiyakheda. In paragraph 7 of his cross- examination, he has admitted about lodging of report against his family members by the appellants. In paragraph 14 of his cross-examination he has denied the suggestion that the appellants used to stay in a different house and deposed that they all have only one house, in a portion whereof appellants used to reside. In paragraph 17 of his cross-examination, he has denied the suggestion that there was no light at the spot. Though this witness was also extensively cross-examined, but his testimony, in essence, has remained unshaken. 11. PW3 Mahesh is another son of Tularam and brother of deceased, while PW6 Sudha is his wife. They were also present on the terrace at the time of incident and have deposed the manner in which offence was committed. Their evidence is substantially consistent with that of Tularam (PW1) and Jitendra (PW2). 12. PW5 Bhagirath Singh, Homeguard, has proved arrest memos (Ex.P/11 to P/13) of the accused persons. He has also proved seizure memo of knife (Ex.P/20) at the instance of appellant Mukesh on discovery memo (Ex.P/16), as well as, knives and other articles seized from Ramautar and Rajesh. PW6 Arun Sigh, Constable has proved FIR (Ex.P/22), which is also proved by PW7 Surendra Singh, Head Constable. He has deposed that it is the exact copy of FIR (Ex.P/1) which was registered at 'Zero' at Police Station Mornea and no oral narration of Arun Singh was recorded in FIR (Ex.P/22). PW9 Shaligram Singh,TI was the scribe of FIR (Ex.P/1) and has proved the same. 13. PW10 Mahesh Kumar sharma is the Investigating Officer. He has deposed that it is the exact copy of FIR (Ex.P/1) which was registered at 'Zero' at Police Station Mornea and no oral narration of Arun Singh was recorded in FIR (Ex.P/22). PW9 Shaligram Singh,TI was the scribe of FIR (Ex.P/1) and has proved the same. 13. PW10 Mahesh Kumar sharma is the Investigating Officer. He has proved spot map (Ex.P/2), seizure of plain and blood stained earth collected from two places vide seizure memos (Ex.P/25 and P/26), safina form (Ex.P/3), application for post mortem examination (Ex.P/23), recording of statements of various witnesses, arrest memos (Ex.P/11 to P/13), seizure memo (Ex.P/20) of knife at the instance of Mukesh. He was in extenso cross-examined, but nothing substantial could be derived to dislodge the prosecution version. 14. In defence, appellant Mukesh has entered appearance as DW1. He has taken the plea of alibi by deposing that he works as Cleaner on a Truck. On 6/6/1996 at about 12 PM, he had gone on the Truck to Dewas and on the date of incident i.e. 7/6/1996 he was in Dewas and till 5 PM was busy in unloading the Truck at Swastik Factory. Thereafter, he left Dewas for Indore and at about 8 PM had reached Sangam Transport. On 8/6/1996 he remained the whole day at Indore and at about 8 PM had left for Agra. The Truck reached Agra on 9/6/1996 at night. It was unloaded on 10/6/1996 at morning. On 10/6/1996 he left Agra for Morena and thereafter at about 2 PM reached his home, where he was informed by his mother that he had been called at Matabasaiya police station. Mahesh Sharma (DW3), driver of the Truck and Mahesh Bhardwaj (DW4) owner of the Truck have also been examined to substantiate the plea of alibi taken by Mukesh (DW1). However, such evidence has rightly been disbelieved by the trial Court in paragraph 31 of the impugned judgment for the reason that no documentary evidence viz. Registration, permit, fitness of Truck, corresponding builties, receipts of loading and unloading goods at Dewas, Indore and Agra were brought on record to substantiate such story. 15. However, such evidence has rightly been disbelieved by the trial Court in paragraph 31 of the impugned judgment for the reason that no documentary evidence viz. Registration, permit, fitness of Truck, corresponding builties, receipts of loading and unloading goods at Dewas, Indore and Agra were brought on record to substantiate such story. 15. Thus from the evidence brought on record, it can safely be deduced that Manoj suffered a homcidal death and the evidence of complainant/injured witness Tularam (PW1) with regard to occurrence of incident stands substantially corroborated by the evidence of other witnesses namely PW2 Jitendra, PW3 Mahesh and PW6 Sudha. It is noteworthy that Jitendra and Tularam are injured witnesses and, therefore, their presence on spot is not doubtful. The evidence of these witnesses have been criticized on the ground that they are relatives of the deceased and hence are interested witnesses and the prosecution has not examined any independent witness. We are unable to accept such argument of learned counsel for the appellant. In State of A.P. vs. S.Rayappa & Ors. ( (2006)4 SCC 512 ), the Supreme Court has rejected a similar argument of interested witnesses being produced and no independent witness being examined by the prosecution, by holding as under:- '6 By now it is a well-established principle of law that testimony of a witness otherwise inspiring confidence cannot be discarded on the ground that he being a relation of the deceased is an interested witness. A close relative who is a very natural witness cannot be termed as an interested witness... 7. On the contrary it has now almost become a fashion that the public is reluctant to appear and depose before the Court especially in criminal case because of varied reasons. Criminal cases are kept dragging for years to come and the witnesses are a harassed lot. They are being threatened, intimidated and at the top of all they are subjected to lengthy cross-examination. In such a situation, the only natural witness available to the prosecution would be the relative witness. The relative witness is not necessarily an interested witness. On the other hand, being a close relation to the deceased they will try to prosecute the real culprit by stating the truth. There is no reason as to why a close relative will implicate and depose falsely against somebody and screen the real culprit to escape unpunished. The relative witness is not necessarily an interested witness. On the other hand, being a close relation to the deceased they will try to prosecute the real culprit by stating the truth. There is no reason as to why a close relative will implicate and depose falsely against somebody and screen the real culprit to escape unpunished. The only requirement is that the testimony of the relative witnesses should be examined cautiously.' (Emphasis supplied) Although previous animosity between the parties is apparent from the deposition of witnesses, yet, it is a well- settled principle of law that enmity is a double-edged sword. It can be a ground for false implication, it can also be a ground for assault. Therefore, a duty is cast upon the Court to examine the testimony of inimical witnesses with due caution and diligence. In the instant case, the prosecution version is substantially corroborated by the evidence of eye-witnesses and it cannot be presumed that father of deceased, who himself is an injured witness in the incident, will spare the real assailants to falsely rope in the present appellant just because of past enmity. So far as variation in the number of injuries as narrated in the FIR and as seen during post mortem examination is concerned, the same is not material, inasmuch as the FIR has been lodged by complainant Tularam, who is himself an injured witness having suffered injury on his head, as is evident from his MLC report (Ex.P/8). It is not expected of an injured witness to remember and narrate with exactitude the number and situs of injuries suffered. Here it is pertinent to mention that role attributed to the present appellant Mukesh is that of causing knife injury on right hand of deceased Manoj and on head of complainant Tularam and in respect of the same there is consistency between the FIR (Ex.P/1), evidence of Tularam (PW1), Jitendra (PW2), Mahesh (PW3) and Sudha (PW6). Juxtaposing the ocular with medical evidence, it can be seen from post mortem report (Ex.P/22) that injury no.6 is an incised wound on right forearm of deceased and an incised wound was also suffered by complainant Tularam on parieto frontal region of scalp, as is evident from his MLC report (Ex.P/8). As such, the learned trial Court has correctly appreciated the evidence and recorded cogent findings in this behalf in paragraph 18 of the impugned judgment. As such, the learned trial Court has correctly appreciated the evidence and recorded cogent findings in this behalf in paragraph 18 of the impugned judgment. As regards contention as to absence of light on the spot, the same has rightly been rejected by the trial Court in the wake of the fact that there is clear mention of glowing of light not only in the FIR (Ex.P/1), but also in the evidence of complainant Tularam (PW1) and other prosecution witnesses. Mere non reflection of source of light in the spot map, would not render such unflinching evidence doubtful. The learned trial Court has aptly dealt with the same in paragraph 22 of the impugned judgment. 16. Thus, homicidal death of deceased at the hands of co- accused persons and appellant is proved beyond reasonable doubt. Looking to the role of the appellant in the crime, at this stage, it is required to be considered as to whether appellant Mukesh shared common intention to assassinate the deceased with the co-accused persons. Recapitulating the scene of occurrence, on the fateful day at about 10 PM, deceased Manoj and his father complainant Tularam were having dinner on the terrace of their house. After having dinner, Manoj came downstairs and reached the common courtyard in front of their house. At this juncture, owing to previous enmity, co-accused Ramautar, appellant Mukesh and Rajesh armed with knives came there and while Ramautar caught hold of Manoj, Rajesh stabbed him in the stomach and Manoj fell down. Thereafter present appellant Mukesh dealt a knife blow on his right hand. Then Ramautar again inflicted knife blow on his right shoulder. As complainant Tularam came forward to rescue his son, appellant Mukesh gave a knife blow on his head. Thus, it is vivid that the incident did not occur as an aftermath of any fall- out or altercation. In fact, after having dinner, when Manoj came down from terrace, the miscreants including the present appellant came on the spot armed with knives and started assaulting him. The very fact that they came prepared armed with knives is sufficient to infer pre-concert and planning to perpetrate the offence. It is also noteworthy that after Rajesh allegedly stabbed on the abdomen of Manoj and Manoj fell down, the present appellant went on to inflict knife blow on the right hand of deceased. The very fact that they came prepared armed with knives is sufficient to infer pre-concert and planning to perpetrate the offence. It is also noteworthy that after Rajesh allegedly stabbed on the abdomen of Manoj and Manoj fell down, the present appellant went on to inflict knife blow on the right hand of deceased. Thus pre-concerted planning and common intention to do away Manoj are ex facie apparent. Explicating common intention, the Apex Court in the case of Surenda Chauhan Vs. State of Madhya Pradesh ( (2000)4 SCC 110 ) has held as under:- '11. Under Section 34 a person must be physically present at the actual commission of the crime for the purpose of facilitating or promoting the offence, the commission of which is the aim of the joint criminal venture. Such presence of those who in one way or the other facilitate the execution of the common design is itself tantamount to actual participation in the criminal act. The essence of Section 34 is simultaneous consensus of the minds of persons participating in the criminal action to bring about a particular result. Such consensus can be developed at the spot and thereby intended by all of them. (Ramaswami Ayyangar & Ors. vs. State of Tamil Nadu [ (1976) 3 SCC 779 ). The existence of common intention can be inferred from the attending circumstances of the case and the conduct of the parties. No direct evidence of common intention is necessary. For the purpose of common intention even the participation in the commission of the offence need not be proved in all cases. The common intention can develop even during the course of an occurrence. (Rajesh Govind Jagesha vs. State of Maharashtra [ (1999) 8 SCC 428 ). To apply Section 34 IPC apart from the fact that there should be two or more accused, two factors must be established: (I) common intention and (ii) participation of the accused in the commission of an offence. If a common intention is proved but no overt act is attributed to the individual accused, Section 34 will be attracted as essentially it involves vicarious liability but if participation of the accused in the crime is proved and a common intention is absent, Section 34 cannot be invoked. In every case, it is not possible to have direct evidence of a common intention. In every case, it is not possible to have direct evidence of a common intention. It has to be inferred from the facts and circumstances of each case. 17. Thus in view of the above, this Court is of the considered view that the offence was committed with premeditation and appellant Mukesh shared the common intention with other miscreants in furtherance whereof homcidal death of Manoj was caused. As such, in the given facts and circumstances of the case, the learned trial Court did not commit any illegality or perversity in recording conviction of the appellant under S.302/34 of the IPC. Ex consequenti, the appeal fails and is, accordingly, dismissed. The impugned judgment of conviction and sentence is hereby affirmed. Appellant Mukesh is on bail. His bail bonds stand cancelled. He is directed to surrender before the trial Court within fifteen days from today for serving out the remaining part of sentence as awarded by the trial Court. Copy of this judgment and record of the trial Court be sent to the trial Court forthwith for compliance.