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2023 DIGILAW 1105 (JHR)

Surendra Yadav v. State of Jharkhand

2023-09-01

SUBHASH CHAND

body2023
JUDGMENT : SUBHASH CHAND, J. 1. Heard learned Amicus Curiae for the appellants and learned Spl. P.P. for the State. 2. The instant criminal appeal is preferred on behalf of the appellants against impugned Judgment of Conviction dated 4th February, 2011 and Order of Sentence dated 5th February, 2011 passed by the learned Sessions Judge, Godda in Sessions Case No. 10 of 2010, whereby, the appellant no. 1 Surendra Yadav and the appellant no. 2 Sri Niwash Yadav have been convicted for the offence under Sections 307/34 and 447/34 of the Indian Penal Code and they were sentenced to undergo rigorous imprisonment for five years along with fine of Rs. 5,000/- for the offence under Section 307/34 of the I.P.C. and in default of payment of fine they were directed to undergo simple imprisonment for three months. Further the appellant nos.1 and 2 were directed to undergo rigorous imprisonment for two months for the offence under Section 447/34 of the I.P.C. The appellant nos.1 to 3 were also directed to undergo rigorous imprisonment for five years along with fine of Rs. 5,000/- for the offence under Section 307/34 of the I.P.C. and in default of payment of fine they were directed to undergo simple imprisonment for three months. 3. The prosecution case in brief is that informant Mahesh Prasad Yadav gave the written information with these allegations that in the morning he was at his house, Ranjit Yadav came and told that his elder brothers Surendra Yadav and Sri Niwash Yadav were installing the diesel engine water pump. On receiving this information, he reached there and saw that very engine which was stolen three days ago was with them. On being asked both provoked and they intruded in the house of the informant and began to beat him and assaulted with khanti over the head, whereby he became unconscious. His wife came to rescue and she was also assaulted by Surendra Yadav, Sri Niwash Yadav and Ranjit Yadav as well. On raising alarm, the persons of the village attracted there and the accused persons fled away. On the written information, the Case Crime No. 78 of 2009 under Sections 447/323/324/307/379/34 of the I.P.C. was lodged against the accused Surendra Yadav, Sri Niwash Yadav and Ranjit Yadav. 4. On raising alarm, the persons of the village attracted there and the accused persons fled away. On the written information, the Case Crime No. 78 of 2009 under Sections 447/323/324/307/379/34 of the I.P.C. was lodged against the accused Surendra Yadav, Sri Niwash Yadav and Ranjit Yadav. 4. The Investigating Officer after having concluded the investigation filed charge-sheet against all the three named accused for the same offence before the court of Magistrate concerned and the Magistrate concerned after having taken the cognizance thereon had committed the case for trial to the court of Sessions Judge. 5. The trial court framed the charge against appellants Surendra Yadav and Sri Niwash Yadav for the offence under Section 379/34 and 447/34 of the I.P.C. and against Surendra Yadav, Sri Niwash Yadav and Ranjeet Yadav for the offence under Section 307/34 of the I.P.C. The charge was read over to all the accused, who denied the charge and claimed for trial. 6. On behalf of the prosecution to prove the charge against the accused persons in oral evidence examined PW-1 Beena Devi, PW-2 Bidya Nand Yadav, PW-3 Gorelal Yadav, PW-4 Mahesh Yadav, PW-5 Sachidanand Choudhary, PW-6 Shamim Khan (the I.O.) and PW-7 Dr. Amitesh Ranjan Shrivastava. 7. On behalf of the prosecution in documentary evidence adduced signature of Vidyanand Yadav on seizure list Ext.1, seizure list Ext.1/1, signature of Gorelal Yadav on fard beyan Ext.2, fard beyan Ext.2, requisition sent for treatment of injured Mahesh Yadav Ext.3, requisition sent for treatment of injured Beena Devi Ext.3/1, case registration endorsement on fard beyan Ext.2/2, formal F.I.R. Ext.4, paragraphs 1 to 48 of the case diary Ext.5, injury report of injured Mahesh Yadav Ext.6, injury report of injured Beena Devi Ext.6/1 and x-ray plate of Beena Devi Ext.6/2. 8. The statement of accused persons under Section 313 of the Cr.P.C. was also recorded, wherein the accused persons denied the incriminating circumstances against them. Appellant no. 3 Ranjeet Yadav in his statement under Section 313 Cr.P.C. stated that Surendra Yadav assaulted Mahesh Prasad Yadav with lathi on his head and ruptured the head of Mahesh and Mahesh also assaulted Surendra. 9. The learned trial court after hearing the learned counsel for the parties passed the judgment of conviction and order of sentence against all the accused persons/appellants as aforesaid. 10. 9. The learned trial court after hearing the learned counsel for the parties passed the judgment of conviction and order of sentence against all the accused persons/appellants as aforesaid. 10. The aforesaid convicts/appellants being aggrieved with the judgment of conviction and order of sentence preferred the present criminal appeal on the ground that the impugned judgment of conviction and sentence is bad in the eyes of law. The court below has not appreciated the evidence on record in proper perspective. The court below did not take into consideration the contradiction in the statements of the witnesses, who were examined before the learned trial court and the statement recorded under Section 161 Cr.P.C. PW-2 who is the witness of the seizure memo has also been declared hostile. PW-5 is also the witness of the seizure list and he has been declared hostile. 10.1 During pendency of this appeal, the appellant no. 1 Surendra Yadav had died and vide order dated 3rd August, 2023 this appeal was stood abated against the said appellant. 11. Heard learned counsel for the appellants and learned A.P.P. for the State of Jharkhand and perused the materials available on record. 12. In order to decide the legality and propriety of the impugned judgment of conviction and sentence passed against the appellants, the evidence adduced on behalf of the prosecution is to be re-appreciated herein. 13. PW-1 Beena Devi, the wife of deceased in her examination-in-chief stated that about 9 months ago at 7 o’ clock of morning, the water pump was stolen by Surendra Yadav and Sri Niwash Yadav. Ranjit Yadav told that his brother Surendra Yadav had stolen the water pump of her husband. All the persons, namely, Surendra Yadav, Sri Niwash Yadav and Ranjit Yadav came to her house and dragged her husband out of the house and Surendra Yadav assaulted with khanti on the head of her husband. Sri Niwash Yadav assaulted with rod which hit on his arm. Sri Niwash and Surendra both dragged her out of the house and also assaulted on her ribs whereby his three bones fractured. She identified the accused persons, who were present in the dock. In cross-examination, this witness stated that two or four days ago from the date of occurrence theft of pump was committed and no F.I.R. of the same was lodged. The pump was of which company she was not aware. She identified the accused persons, who were present in the dock. In cross-examination, this witness stated that two or four days ago from the date of occurrence theft of pump was committed and no F.I.R. of the same was lodged. The pump was of which company she was not aware. This witness denied this suggestion that pump belong to Surendra Yadav and her husband brought the same. 14. PW-2 Vidya Nand Yadav in his examination-in-chief stated that five or six months ago, the occurrence took place and he had not seen anyone injured. He put the signature on the seizure memo and identifies his signature thereon. This witness was declared hostile and stated that the contents of the seizure memo was not read over to him and he was not aware what was written in the same. 15. PW-3 Gorelal Yadav in his examination-in-chief says that nine months ago at 07:00 a.m. Ranjit Yadav came to Mahesh and told that his brother had stolen the water pump and told Mahesh to go to the house of Ranjit. Mahesh went to bring that water pump from the house of Sri Niwash. Two to five minutes thereafter, Sri Niwash Yadav, Surendra and Ranjit Yadav all the three came to the house of Mahesh and assaulted him. The wife of Mahesh came to rescue and she was also assaulted. The seizure memo was prepared by the police in his presence and he put his signature thereon which was marked Ext.1/1. This witness in his cross-examination says that no theft report was lodged in regard to the water pump by Mahesh. He is not aware that the water pump was of which company. 16. PW-4 Mahesh Yadav in his examination-in-chief stated that the occurrence was nine months ago and the time was 7 o’ clock of morning. He further stated that theft of his water pump was committed. Ranjit Yadav told him that his water pump was at the house of Surendra Yadav. After sometime, Surendra Yadav, Ranjit Yadav and Sri Niwash Yadav all three came to his house. Surendra Yadav assaulted on his head with khanti. His wife came to rescue and she was also assaulted by the accused persons, who sustained injury on her back. The written information was given by him and he identified his signature which was marked Ext.2/1. After sometime, Surendra Yadav, Ranjit Yadav and Sri Niwash Yadav all three came to his house. Surendra Yadav assaulted on his head with khanti. His wife came to rescue and she was also assaulted by the accused persons, who sustained injury on her back. The written information was given by him and he identified his signature which was marked Ext.2/1. In cross-examination, this witness says that all the accused persons are his gotiya. He did not lodge the F.I.R. of theft of the pump and when he brought the pump at that time Surendra Yadav, Sri Niwash Yadav were at the house. He is not aware in regard to company of the pump. 17. PW-5 Sachindanand Choudhary in his examination-in-chief stated that he does not know in regard to the occurrence. This witness was declared hostile and denied the statement given to the I.O. under Section 161 Cr.P.C. In cross-examination, this witness says that Surendra Yadav had the water pump for a long period of time. 18. PW-6 Shamim Khan (the I.O. of the case) in his examination-in-chief says that on 6th July, 2009 he took over the investigation of the case being Mahgama P.S. Case No. 78 of 2009. He recorded the re-statements of informant Mahesh Yadav and witness Beena Devi, Gorelal Yadav, Pramod Yadav, Vidyanand Yadav and Sachdinand Choudhary. He prepared the site plan of the place of occurrence. The seizure memo of the diesel engine water pump was prepared in presence of the witness which is in his handwriting and signature which was marked Ext.1/1. The injury report of injured was also got by him from the doctor. The F.I.R. of this case was prepared by Binod Kumar Singh which was signed by the Station In-charge Officer, Rameshwar Kumar Singh which was marked Ext.4. He was transferred and the investigation was handed over to the Officer-in-Charge. In cross-examination, this witness says that the diesel engine water pump was of which company he is not aware as no paper of the same was produced. 19. PW-7 Dr. Amitesh Ranjan Srivastava in his examination-in-chief stated that on 6th July, 2009 he examined Mahesh Yadav and found following injuries: (i) Lacerated wound on left parietal region 3” x ¼” x skin deep. (ii) Bruise over left shoulder 1” x ½.” (iii) Body acne. 19. PW-7 Dr. Amitesh Ranjan Srivastava in his examination-in-chief stated that on 6th July, 2009 he examined Mahesh Yadav and found following injuries: (i) Lacerated wound on left parietal region 3” x ¼” x skin deep. (ii) Bruise over left shoulder 1” x ½.” (iii) Body acne. On the same day he also examined Beena Devi and found following injuries: (i) Fracture of 3rd, 4th, 5th and 6th ribs on left side. (ii) Body acne. PW-7, the doctor has stated that the injuries of Mahesh Yadav were simple in nature and the injury no. (ii) of Beena Devi was grievous in nature. He also stated that all the injuries were caused by hard and blunt substance. The x-ray report of injury of Beena Devi was done and the x-ray plate was marked as Ext.6/2. In cross-examination, this witness says that he has mentioned the age of injury to be 5 hours on the basis of the information given to him by the injured. 20. The prosecution case is based on direct evidence. The eye-witness of the occurrence are PW-1 Beena Devi (the injured eye-witness and wife of the informant) and PW-4 Mahesh Yadav is the informant and injured eyewitness. PW-4 Mahesh Yadav has stated that his water pump was stolen and on this issue he went to the house of accused to bring his water pump because co-accused Ranjit Yadav told that the same was stolen by Surendra Yadav. On this dispute, all these three accused persons reached to his house and assaulted him. This witness had stated that Surendra had assaulted with rod on his forehead and his wife was assaulted by the accused on his back. PW-1 Beena Devi is also the injured eye-witness and she says that on the issue of stolen water pump her husband went to Surendra Yadav and Sri Niwash Yadav, who had the water pump as told by the Ranjit Yadav. This encouraged the accused persons, who came to her house and assaulted her husband. Surendra Yadav assaulted with khanti on the head of her husband and Sri Niwash assaulted with rod which hit on her arm. Surendra also assaulted on her panjrathi, whereby her three bones cracked. PW-3 Gorelal Yadav is also the eye-witness of the occurrence. This witness in his examination-in-chief stated that on the issue of theft of water pump, Mahesh went to the house of Sri Niwash and Surendra. Surendra also assaulted on her panjrathi, whereby her three bones cracked. PW-3 Gorelal Yadav is also the eye-witness of the occurrence. This witness in his examination-in-chief stated that on the issue of theft of water pump, Mahesh went to the house of Sri Niwash and Surendra. On the very issue, the three accused persons, namely, Surendra, Sri Niwash and Ranjit came to the house of Mahesh. Surendra assaulted on the forehead of Mahesh and Sri Niwash assaulted with the rod, whereby Mahesh sustained head injury. One injury was also caused on the back of Mahesh and wife of Mahesh was also assaulted by Sri Niwash, who sustained injury and both were referred to the hospital and they were medically examined. PW-7 Dr. Amitesh Ranjan Srivastava proved the injury report of Mahesh Yadav as Ext.6 and injury report of Beena Devi as Ext.6/1. From injury report of injured Mahesh Yadav, it appears that he sustained one lacerated wound on the left parietal region 3” x ¼” x skin deep and bruise over left shoulder 1” x ½.” So far as the injury report of injured Beena Devi is concerned, there was fracture on the 3rd, 4th, 5th and 6th ribs. Injuries of Mahesh Yadav were shown simple and Beena Devi were grievous. In cross-examination, this witness says that Ext.6/2 was not prepared in his presence. He has stated only about the findings of x-ray out of his imagination. From the testimony of this witness, PW-7, the ocular evidence is also corroborated. On behalf of the prosecution, the I.O. was examined as PW-6. This witness in his examination-in-chief stated that he had recorded the restatement of Mahesh Yadav and also recorded the statement of Beena Devi, Gorelal Yadav, Pramod Yadav, Vidyanand Yadav and Sachidanand Choudhary and also prepared the site plan which is the place of occurrence i.e. the house informant bounded in thatched roof house of Ashok Yadav in South house of Narayan Yadav, in East house of the informant and in West house of Ashok Yadav. During cross-examination, no contradiction could be drawn on behalf of the defence in the statement of the witnesses who have given statement under Section 161 Cr.P.C. to the I.O. and their testimony were recorded by the trial court. 21. Though the prosecution case is based on direct evidence, yet the motive of the occurrence is shown in the F.I.R. itself. During cross-examination, no contradiction could be drawn on behalf of the defence in the statement of the witnesses who have given statement under Section 161 Cr.P.C. to the I.O. and their testimony were recorded by the trial court. 21. Though the prosecution case is based on direct evidence, yet the motive of the occurrence is shown in the F.I.R. itself. The motive is that the water pump of the informant was stolen. Though the F.I.R. in regard to theft of the water pump engine was not lodged by the informant, yet one Ranjit Yadav came to the informant and told that his water pump engine was with his elder brother Surendra Yadav and Sri Niwash Yadav, who were installing the same. Accordingly, the informant reached to the house of Sri Niwash Yadav and Surendra Yadav and on this, the accused persons got provoked and they reached to the house of the informant Mahesh Yadav. The wife of the informant, namely, Beena Devi was examined as PW-1 and she also stated that water pump was stolen and theft report of the same was not lodged but as told by Ranjit Yadav, her husband went to Surendra Yadav and Sri Niwash Yadav to ask in regard to his stolen water pump which was being installed by them. On this very issue, Sri Niwash Yadav and Surendra Yadav came to her house and Surendra Yadav assaulted with iron rod to her husband. Sri Niwash Yadav assaulted with rod which hit on his shoulder. This witness also stated that Sri Niwash Yadav and Surendra Yadav both had dragged out of her house and assaulted on her panjrathi, whereby three bones were cracked. 22. PW-4 is the informant, Mahesh Yadav and he also stated that on the issue of the stolen water pump he reached to Surendra Yadav and Sri Niwash Yadav on the information received from Ranjit Yadav that his stolen water pump was with them. This enraged the accused persons and they came to his house. Surendra Yadav assaulted him with the rod which hit on his head and also on his arm while his wife was assaulted on her panjrathi. 23. The instant case is based on direct evidence. This enraged the accused persons and they came to his house. Surendra Yadav assaulted him with the rod which hit on his head and also on his arm while his wife was assaulted on her panjrathi. 23. The instant case is based on direct evidence. Though the evidence to motive has no significant, yet the motive has been given in the F.I.R. itself, so the same has been proved on behalf of the prosecution witnesses i.e. PW-4 Mahesh Yadav (informant) and PW-1 Beena Devi, both are the injured witnesses, therefore, the motive of the occurrence is also proved. Herein the place of occurrence is the house of the informant which has been proved by the testimony of PW-1 Beena Devi and PW-4 Mahesh Yadav and also from testimony of Gorelal Yadav. The witness Gorelal Yadav also stated that place of occurrence is the house of the informant Mahesh Yadav. Accused persons had dragged the wife of the informant Beena Devi out of the house and had assaulted her and accused persons also assaulted to Mahesh Yadav, who sustained head injury and injury on the back. 24. PW-6 Shamim Khan, I.O. has also stated that the place of occurrence is the house of the informant. He has also stated the boundary of the place of occurrence. On this issue, no cross-examination was made on behalf of the accused persons from any of the prosecution witness, as such, the place of occurrence is house of informant which is well proved from the prosecution evidence. 25. Herein it would be pertinent to reproduce the provision of Section 34, 307 and 447 of the Indian Penal Code which reads as under: “34. Acts done by several persons in furtherance of common intention - When a criminal act is done by several persons in furtherance of the common intention of all, each of such persons is liable for that act in the same manner as if it were done by him alone. 307. Acts done by several persons in furtherance of common intention - When a criminal act is done by several persons in furtherance of the common intention of all, each of such persons is liable for that act in the same manner as if it were done by him alone. 307. Attempt to murder - Whoever does any act with such intention or knowledge, and under such circumstances that, if he by that act caused death, he would be guilty of murder, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine; and, if hurt is caused to any person by such act, the offender shall be liable either to [imprisonment for life], or to such punishment as is hereinbefore mentioned. 447. Punishment for criminal trespass - Whoever commits criminal trespass shall be punished with imprisonment of either description for a term which may extend to three months, with fine or which may extend to five hundred rupees, or with both.” 26. From the allegations made in the F.I.R. it is found that all the three accused had come to the house of the informant armed with deadly weapon. Surendra Yadav assaulted to the informant Mahesh and his wife Beena Devi after having intruded in the house of the informant. On behalf of the prosecution, the injured witness PW-1 Beena Devi and PW-4 Mahesh Yadav are the eye-witness of the occurrence. PW-1 Beena Devi had attributed specific role to Surendra Yadav inflicting with rod to her husband which hit on the head and she also attributed specific role to Sri Niwash Yadav who assaulted with rod on the shoulder of her husband. This witness also stated that Sri Niwash Yadav and Surendra Yadav both had dragged them out of house and Surendra Yadav assaulted with rod on her panjrathi, whereby her three bones were cracked. PW-4 Mahesh Yadav had stated that Surendra Yadav had assaulted with rod which hit on his head and shoulder and Sri Niwash Yadav also assaulted his wife whose ribs were cracked. PW-3 Gorelal Yadav is also the eye-witness of the occurrence and he in his examination-in-chief stated that all the three accused came to the house of Mahesh Yadav and assaulted him where Mahesh Yadav sustained head injury and also on the shoulder. His wife also sustained injury on her ribs. PW-3 Gorelal Yadav is also the eye-witness of the occurrence and he in his examination-in-chief stated that all the three accused came to the house of Mahesh Yadav and assaulted him where Mahesh Yadav sustained head injury and also on the shoulder. His wife also sustained injury on her ribs. This witness has assigned general and omnibus role to all the three accused named in the F.I.R. He has not attributed any specific role to any accused in regard to assault made by the accused persons to the victims. In view of the testimony of the injured eye-witness, PW-1 Beena Devi and PW-4 Mahesh Yadav, the testimony of this witness PW-3 Gorelal Yadav cannot be said to be trustworthy reason being that this witness had stated that all the three accused persons had assaulted while role of assaulting has been attributed to Surendra Yadav and Sri Niwash Yadav by both the victims and not to Ranjit Yadav and his presence is only shown at the place of occurrence. So far as the nature of injury caused to the informant PW-4 Mahesh Yadav is concerned, the same was simple in nature. The injury no. i was lacerated wound on the left parietal region 3” x ¼” x skin deep and the injury no. ii was bruise over the left shoulder 1” x ½.” Both these injuries are opined by the doctor PW-7 to be simple in nature but the injury is on the vital part which is parietal region of the head. So far as the injury of Beena Devi is concerned, PW-7 Dr. Amitesh Ranjan Srivastava had stated that there was fracture of the 3rd, 4th, 5th and 6th ribs of the left side. He had also stated that injuries caused to Beena Devi were grievous in nature caused by hard and blunt object. Though PW-7 has not given any opinion whether this injury was fatal to life or not, yet keeping in view the seat of injury to Beena Devi which is grievous in nature as her 3rd, 4th, 5th and 6th ribs had fractured in view of x-ray report Ext.6, which was vital part of the body. So far as the injury sustained by Mahesh Yadav is concerned, though the injury was simple in nature as per opinion of doctor but it was on vital part i.e. head. So far as the injury sustained by Mahesh Yadav is concerned, though the injury was simple in nature as per opinion of doctor but it was on vital part i.e. head. Herein the intention of the accused/assailant is to be interfered from the conduct of the accused persons at the time of commission of the crime, the weapon with which the accused were armed and also part of the body on which the injury was inflicted. 27. Keeping in view that the accused Surendra Yadav and Sri Niwash Yadav both were armed with iron rod and they had come to the house of the informant and assaulted to informant with iron rod. The wife of the informant came to rescue and she was also assaulted. Therefore, from the assault being made by the accused persons with the iron rod which hit on the vital part of the body of both the injured persons shows the intent of the accused Surendra Yadav and Sri Niwash Yadav attempt to commit murder. 28. So far as the conviction of the appellant Ranjit Yadav is concerned, no overt act has been shown on the part of this appellant/convict by any of the prosecution witnesses. Only the general and omnibus role has been assigned by PW-3 Gorelal Yadav in commission of the offence. The testimony of PW-3 Gorelal Yadav cannot relied upon in view of the testimony of the PW-1 and PW-4, who are the injured eye-witness of the occurrence and they have not attributed any overt act on the part of Ranjit Yadav rather have attributed specific role to Surendra Yadav and Sri Niwash Yadav in regard to inflicting injuries to both the injured persons. As such there is no evidence in regard to common intention which the appellant no. 3 Ranjit Yadav had also shared along with two remaining convicts, namely, Surendra Yadav and Sri Niwash Yadav. None of the injured eye-witness had stated that Ranjit Yadav was armed with any weapon, rather from the testimony of PW-4 Mahesh Yadav and PW-1 Beena Devi it is found that Ranjit Yadav had come to the house of the informant and had told that his water pump which was stolen was being installed by his elder brothers Sri Niwash Yadav and Surendra Yadav. Though he also came to the house of the informant along with other co-accused yet he did not participate in commission of the offence. There is no evidence adduced on behalf of the prosecution in regard to sharing the common intention by the appellant no. 3 Ranjit Yadav along with appellants Surendra Yadav and Sri Niwash Yadav. 29. Herein it would be relevant to give the settled legal proposition of law as laid down by the Hon’ble Apex Court. 30. The Hon’ble Apex Court in the case of Krishnamurthy @ Gunodu and Others vs. State of Karnataka, 2022 Live Law SC 220 at paragraphs 13 and 19 has held as under: “13. At this stage, we would like to refer to an old judgment of a Division Bench of the Allahabad High Court in the case of Bashir vs. State, AIR 1953 All. 668 which by giving examples explains the scope and significance of the words “in furtherance” used in Section 34 of the IPC in the following manner: “18. The use of the words “in furtherance” suggests that Section 34 is applicable also where the act actually done is not exactly the act jointly intended by the conspirators to be done, otherwise, the words would not be needed at all. The common intention can be to do one act and another act can be done in furtherance of the common intention. It may be a preliminary act necessary to be done before achieving the common intention; or it may become necessary to do it after achieving the common intention or it may be done while achieving the common intention. Going to the spot in a motor car is an act in furtherance of the common intention to commit a crime there; but if while going there the driver runs over and kills a pedestrian, the collision is merely incidental and the running aver of the pedestrian is not in furtherance of the common intention. Going to the spot in a motor car is an act in furtherance of the common intention to commit a crime there; but if while going there the driver runs over and kills a pedestrian, the collision is merely incidental and the running aver of the pedestrian is not in furtherance of the common intention. If, however, a conspirator who wishes to commit a crime involving violence against X is impeded by Y and throws Y aside in order to get at X, the attack upon Y is made in furtherance of the common intention; see Russell on Crime, pages 557 and 558.” The aforesaid quotation emphasizes that it is essential that each co-perpetrator should have necessary intent to participate or otherwise have requisite awareness or knowledge that the offence is likely to be committed in view of the common design. It also follows that in some cases merely accompanying the principal accused may not establish common intention. A coperpetrator, who shares a common intention, will be liable only to the extent that he intends or could or should have visualized the possibility or probability of the final act. If the final outcome or offence committed is distinctly remote and unconnected with the common intention, he would not be liable. This test obviously is fact and circumstance specific and no straitjacket universal formula can be applied. Two examples quoted in Bashir's case (supra) are relevant and explain the widest and broad boundaries of Section 34 IPC and at the same time warn that the ambit should not be extended so as to hold a person liable for remote possibilities, which were not probable and could not be envisaged. The examples also bring out the distinction between the criminal acts and the intent of a co-perpetrator; and the actual offence committed by the principal or main perpetrator. 19. Section 34 IPC also uses the expression “act in furtherance of common intention.” Therefore, in each case when Section 34 is invoked, it is necessary to examine whether the criminal offence charged was done in furtherance of the common intention of the participator. If the criminal offence is distinctly remote and unconnected with the common intention, Section 34 would not be applicable. If the criminal offence is distinctly remote and unconnected with the common intention, Section 34 would not be applicable. However, if the criminal offence done or performed was attributable or was primarily connected or was a known or reasonably possible outcome of the pre-concert/contemporaneous engagement or a manifestation of the mutual consent for carrying out common purpose, it will fall within the scope and ambit of the act done in furtherance of common intention. Thus, the word “furtherance” propounds a wide scope but should not be expanded beyond the intent and purpose of the statute. Russell on Crime, (10th Edition Page 557), while examining the word “furtherance” had stated that it refers to “the action of helping forward” and “it indicates some kind of aid or assistance producing an effect in the future” and that “any act may 12 be regarded as done in furtherance of the ultimate felony if it is a step intentionally taken for the purpose of effecting that felony.” An act which is extraneous to the common intention or is done in opposition to it and is not required to be done at all for carrying out the common intention, cannot be said to be in furtherance of common intention [Refer judgment of R.P. Sethi J. in Suresh (supra)].” 31. The Hon’ble Apex Court in the case of Raju @ Devendra Choubey vs. State of Chhatisgarh, 2014 (4) Crimes (SC) 186 at paragraph 22 has held as under: “22. On a careful conspectus of the facts and the law, we are of the view that the prosecution has failed to prove the guilt of Mahesh beyond reasonable doubt. There is no evidence of his having played any part in the crime. He was merely seen by the witness as standing outside the house when the witness came home. Mahesh did not even act as a guard; he did not prevent Anil Kumar (PW-21) from entering the house. There is no evidence of the formation or sharing of any common intention with the other accused. There is no reference to a third person in the FIR; no evidence that he came with the other accused or left with them. No weapon was seized from him, nor was any property connected with the crime, seized. There is no evidence of the formation or sharing of any common intention with the other accused. There is no reference to a third person in the FIR; no evidence that he came with the other accused or left with them. No weapon was seized from him, nor was any property connected with the crime, seized. Having regard to the role attributed to him and the absence of incriminating factors we find that it is not safe to convict Mahesh of the offence of murder with the aid of Sections 34 and 120(B).” 32. It was Surendra Yadav and Sri Niwash Yadav who were armed with deadly weapon i.e. iron rod. Both had dragged the informant and his wife and also assaulted to the informant and his wife as well. The injury which was inflicted by them is on vital part of body of both the injured persons. So far as the appellant no. 3 Ranjit Yadav is concerned, though he was present at the place of occurrence but he did not share the common intention along with other appellants, namely, Surendra Yadav and Sri Niwash Yadav. The appellant no. 3 was not armed with any weapon and he did not make any kind of extortion at the place of occurrence. None of the injured eyewitness had shown any complicity of Ranjit Yadav in commission of the alleged offence, therefore, the appellant Ranjit Yadav cannot be convicted along with co-convicts Surendra Yadav and Sri Niwash Yadav for the offence under Section 307 of I.P.C. with the help of Section 34 I.P.C. 33. The Hon’ble Apex Court in the case of State of Madhya Pradesh vs. Harjeet Singh and Another, (2019) 20 SCC 524 at paragraph 5.6.2 has held as under: “5.6.2. This Court in R. Prakash vs. State of Karnataka, (2004) 9 SCC 27 : 2004 SCC (Cri) 1408, held that: (SCC p. 30, Paras 8-9) “8........The first blow was on a vital part, that is, on the temporal region. Even though other blows were on non-vital parts, that does not take away the rigour of Section 307 IPC.... 9. It is sufficient to justify a conviction under Section 307 if there is present an intent coupled with some overt act in execution thereof. It is not essential that bodily injury capable of causing death should have been inflicted. Even though other blows were on non-vital parts, that does not take away the rigour of Section 307 IPC.... 9. It is sufficient to justify a conviction under Section 307 if there is present an intent coupled with some overt act in execution thereof. It is not essential that bodily injury capable of causing death should have been inflicted. Although the nature of injury actually caused may often give considerable assistance in coming to a finding as to the intention of the accused, such intention may also be deduced from other circumstances, and may even, in some cases, be ascertained without any reference at all to actual wounds. The section makes a distinction between the act of the accused and its result, if any. The court has to see whether the act, irrespective of its result, was done with the intention or knowledge and under circumstances mentioned in the section.” (Emphasis supplied) 34. After critical appraisal of the prosecution case and the evidence available on record as also keeping in view the settled proposition of law as laid down by the Hon’ble Apex Court, I am of the considered opinion that the learned Court below has committed no illegality or infirmity in recording the findings of conviction of accused/appellant no. 2 Sri Niwash Yadav for the offence under Section 307/34 and 447/34 of the Indian Penal Code. Accordingly, this criminal appeal is, hereby, dismissed partly and impugned judgment of conviction and sentence is affirmed, so far as it relates to the appellant no. 2 Sri Niwash Yadav. Further the said appellant is directed to surrender before the court below and in case if he do not surrender, the trial court is directed to ensure the arrest of the said appellant and send him to jail to serve out the sentence as inflicted by the trial court. 35. So far as the charge under Section 307/34 of the I.P.C. levelled against the appellant no. 3 Ranjit Yadav is concerned, the prosecution has miserably been failed to prove the said charge against him. Accordingly, this criminal appeal is hereby allowed partly and the impugned judgment of conviction and sentence is set aside, so far as it relates to the appellant no. 3 Ranjit Yadav. The said appellant is acquitted from the charge levelled against him and he is on bail and his sureties are discharged. 36. Accordingly, this criminal appeal is hereby allowed partly and the impugned judgment of conviction and sentence is set aside, so far as it relates to the appellant no. 3 Ranjit Yadav. The said appellant is acquitted from the charge levelled against him and he is on bail and his sureties are discharged. 36. Let the lower court's record be sent to the court concerned forthwith along with a copy of this judgment for necessary compliance.