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2024 DIGILAW 77 (HP)

Kailash v. State of Himachal Pradesh

2024-01-11

RAKESH KAINTHLA

body2024
JUDGMENT : RAKESH KAINTHLA, J. 1. The petitioner has filed the present petition for seeking regular bail. It has been asserted that the petitioner was arrested by the police for the commission of offences punishable under Sections 302, 307, 451, 323, and 324 read with Section 34 of IPC registered vide F.I.R. No. 51 of 2022, dated 04.06.2022 at Police Kot Kehloor, District Bilaspur, H.P. The informant Giano Devi has a long-standing dispute with the petitioner and his family members. The petitioner and his family members were arrested by the police on 04.06.2022. The mother of the petitioner lodged an F.I.R. No. 50 of 2022 against Smt. Giano Devi, Satish Kumar and Deshraj stating therein that Giano Devi started uprooting the wooden pillars on 04.06.2022 at 7:30 p.m. When the petitioner’s mother asked her not to do so; she and her family members attacked her with hockey sticks, axes and sticks. The police filed a cancellation report without conducting a proper investigation. The statements of spot witnesses Mintu and Kamla were not recorded. As per the cancellation report, Kunti Devi and the petitioner had sustained grievous injuries. However, no explanation for the same was provided in the F.I.R. The objections to the final report have been filed, which are pending adjudication before the learned Sessions Judge, Bilaspur, H.P. The Statement of Gurmail Singh is contradictory to the statement of Giano Devi. As per the complaint, the accused gave an Axe blow to Satish and not to Deshraj. Six witnesses out of 26 have been examined and the conclusion of the trial will take considerable time. The objections to the cancellation report are also to be decided and in case the objections are accepted, the trial in both cases will be conducted together as they had arisen out of one incident. The question as to who was the aggressor is yet to be decided. The petitioner has been inside the jail for more than 1½ years and he is entitled to bail as per the judgment of Hon’ble Supreme Court in Mukesh Kumar vs. State of Rajasthan in SLP (Crl.) No. 11714 of 2022, decided on 15.02.2023. The petitioner had filed a petition before the learned Sessions Judge, Bilaspur, which was dismissed. The petitioner will abide by all the terms and conditions, which may be imposed by the Court while releasing him on bail. The petitioner had filed a petition before the learned Sessions Judge, Bilaspur, which was dismissed. The petitioner will abide by all the terms and conditions, which may be imposed by the Court while releasing him on bail. There is no chance of absconding the petitioner. Therefore, it was prayed that the petition be allowed and the petitioner be released on bail. 2. The petition was opposed by filing a status report, asserting that informant Giano Devi made a report to the police that she had a dispute over the land with Kunti Devi. Many quarrels have taken place between them. Kunti Devi came to the informant’s land on 04.06.2022 and threatened to kill her. Puneet also came to the spot and hit the head of her husband Deshraj with an Axe. The petitioner inflicted a blow on the informant’s head and also inflicted a blow with Axe on the head of Satish. The informant and her family members sustained injuries. Gurmail and Amar Nath came to the spot and rescued the informant. The police registered the F.I.R. and conducted the investigation. As per Medico Legal Certificate, Giano Devi and Satish Kumar had sustained injuries with a sharp-edged weapon. Deshraj was taken to PGI, Chandigarh for his treatment. He succumbed to his injuries. Challan was prepared and presented before the competent Court. As per the post-mortem report, the death was caused due to craniocerebral damage and laceration of the right lung consequent upon blunt impact over the head and chest, which is sufficient in the ordinary course of nature to cause death. Six witnesses have been examined and other witnesses are yet to be examined. The petitioner can intimidate or influence the witnesses in case he is released on bail. Therefore, it was prayed that the present petition be dismissed. 3. I have heard Mr. Rajiv Rai, learned counsel for the petitioner and Mr. Jitender Sharma, Additional Advocate General, for respondent/State. 4. Mr. Rajiv Rai, learned counsel for the petitioner submitted that the petitioner is innocent and he was falsely implicated. The petitioner had not caused the fatal injury and the injury was caused by Puneet as per the prosecution. Prima facie there is no case against the petitioner for the commission of an offence punishable under Section 302 of IPC. Petitioner’s mother filed a complaint before the police and the police wrongly prepared a cancellation report. The petitioner had not caused the fatal injury and the injury was caused by Puneet as per the prosecution. Prima facie there is no case against the petitioner for the commission of an offence punishable under Section 302 of IPC. Petitioner’s mother filed a complaint before the police and the police wrongly prepared a cancellation report. The matter is pending adjudication before the learned Sessions Judge, Bilaspur, H.P. There is an inordinate delay in the progress of the trial. Hence, he prayed that the present petition be allowed and the petitioner be released on bail. He also relied on the judgment of the Hon’ble Supreme Court in Mukesh Kumar’s case (supra) in support of his submission. 5 Mr. Jitender Sharma, learned Additional Advocate General for the respondent/State submitted that the petitioner was acting in concert with other co-accused. Therefore, he is liable by virtue of Section 34 of the Indian Penal Code. The police fairly investigated both the matters. The petitioner and his family members were found to be aggressors; therefore, the challan was prepared and presented before the competent Court against them. The cancellation report was rightly prepared. The Court is not to appreciate the evidence at this stage. Therefore, he prayed that the present petition be dismissed. 6. I have given considerable thought to the submissions at the bar and have gone through the record carefully. 7. The Hon’ble Supreme Court discussed the parameters for granting the bail in Bhagwan Singh vs. Dilip Kumar, 2023 SCC Online SC 1059 as under: “12. The grant of bail is a discretionary relief which necessarily means that such discretion would have to be exercised in a judicious manner and not as a matter of course. The grant of bail is dependent upon contextual facts of the matter being dealt with by the Court and may vary from case to case. There cannot be any exhaustive parameters set out for considering the application for a grant of bail. However, it can be noted that: (a) While granting bail the court has to keep in mind factors such as the nature of accusations, severity of the punishment, if the accusations entail a conviction and the nature of evidence in support of the accusations. However, it can be noted that: (a) While granting bail the court has to keep in mind factors such as the nature of accusations, severity of the punishment, if the accusations entail a conviction and the nature of evidence in support of the accusations. (b) reasonable apprehensions of the witnesses being tampered with or the apprehension of there being a threat for the complainant should also weigh with the Court in the matter of grant of bail. (c) While it is not accepted to have the entire evidence establishing the guilt of the accused beyond reasonable doubt but there ought to be always a prima facie satisfaction of the Court in support of the charge. (d) Frivility of prosecution should always be considered and it is only the element of genuineness that shall have to be considered in the matter of grant of bail and in the event of there being some doubt as to the genuineness of the prosecution, in the normal course of events, the accused is entitled to have an order of bail. 13. We may also profitably refer to a decision of this Court in Kalyan Chandra Sarkar vs. Rajesh Ranjan @ Pappu Yadav, (2004) 7 SCC 528 where the parameters to be taken into consideration for the grant of bail by the Courts have been explained in the following words: “11. The law in regard to grant or refusal of bail is very well settled. The court granting bail should exercise its discretion in a judicious manner and not as a matter of course. Though at the stage of granting bail a detailed examination of evidence and elaborate documentation of the merit of the case need not be undertaken, there is a need to indicate in such orders reasons for prima facie concluding why bail was being granted particularly where the accused is charged of having committed a serious offence. Any order devoid of such reasons would suffer from non-application of mind. It is also necessary for the court granting bail to consider among other circumstances, the following factors also before granting bail; they are: (a) The nature of the accusation and the severity of punishment in case of conviction and the nature of supporting evidence. (b) Reasonable apprehension of tampering with the witness or apprehension of threat to the complainant. (c) Prima facie satisfaction of the court in support of the charge. (b) Reasonable apprehension of tampering with the witness or apprehension of threat to the complainant. (c) Prima facie satisfaction of the court in support of the charge. [See Ram Govind Upadhyay vs. Sudarshan Singh, (2002) 3 SCC 598 : 2002 SCC (Cri) 688 and Puran vs. Rambilas, (2001) 6 SCC 338 : 2001 SCC (Cri) 1124].” 8. A similar view was taken in State of Haryana vs. Dharamraj, 2023 SCC Online 1085, wherein it was observed: “7. A foray, albeit brief, into relevant precedents is warranted. This Court considered the factors to guide the grant of bail in Ram Govind Upadhyay vs. Sudarshan Singh, (2002) 3 SCC 598 and Kalyan Chandra Sarkar vs. Rajesh Ranjan, (2004) 7 SCC 528 . In Prasanta Kumar Sarkar vs. Ashis Chatterjee, (2010) 14 SCC 496 , the relevant principles were restated thus: “9.........It is trite that this Court does not, normally, interfere with an order passed by the High Court granting or rejecting bail to the accused. However, it is equally incumbent upon the High Court to exercise its discretion judiciously, cautiously and strictly in compliance with the basic principles laid down in a plethora of decisions of this Court on the point. It is well settled that, among other circumstances, the factors to be borne in mind while considering an application for bail are: (i) whether there is any prima facie or reasonable ground to believe that the accused had committed the offence. (ii) nature and gravity of the accusation. (iii) severity of the punishment in the event of conviction. (iv) danger of the accused absconding or fleeing, if released on bail. (v) character, behaviour, means, position and standing of the accused. (vi) likelihood of the offence being repeated. (vii) reasonable apprehension of the witnesses being influenced. (viii) danger, of course, of justice being thwarted by grant of bail.” 9. The present case has to be decided as per the parameters laid down by the Hon’ble Supreme Court. 10. It was specifically mentioned in the F.I.R. that Puneet came an Axe and hit Deshraj on his head. Kailash, the present petitioner, also came and hit Satish with an Axe. Kunti Devi inflicted a blow on Satish’s head with an Axe. The present case has to be decided as per the parameters laid down by the Hon’ble Supreme Court. 10. It was specifically mentioned in the F.I.R. that Puneet came an Axe and hit Deshraj on his head. Kailash, the present petitioner, also came and hit Satish with an Axe. Kunti Devi inflicted a blow on Satish’s head with an Axe. These averments clearly show that all the accused were armed with deadly weapons and they were acting together in concert with each other; hence, there is a force in the submission of Shri Jitender Sharma, learned Additional Advocate General that, prima facie, the petitioner is liable under Section 302 read with Section 34 of IPC. Section 34 of IPC was explained by the Hon’ble Supreme Court in Jasdeep Singh vs. State of Punjab, 2022 (2) SCC 545 as under: “17. We shall first go back into history to understand Section 34 IPC as it stood at its inception and as it exists now. Old Section 34 of IPC New Section 34 of IPC “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” “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 by him alone” 18. On comparison, one could decipher that the phrase “in furtherance of the common intention” was added to the statute book subsequently. It was first coined by Chief Justice Barnes Peacock presiding over a Bench of the Calcutta High Court, while delivering its decision in Queen vs. Gorachand Gope, 1866 SCC Online Cal. 16 which would have probably inspired and hastened the amendment to Section 34 IPC, made in 1870. The following passage may lend credence to the aforesaid possible view: “It does not follow that, because they were present with the intention of taking him away, that they assisted by their presence in the beating of him to such an extent as to cause death. The following passage may lend credence to the aforesaid possible view: “It does not follow that, because they were present with the intention of taking him away, that they assisted by their presence in the beating of him to such an extent as to cause death. If the object and design of those who seized Amordi was merely to take him to the thannah on a charge of theft, and it was no part of the common design to beat him, they would not all be liable for the consequence of the beating merely because they were present. It is laid down that, when several persons are in a company together engaged in one common purpose, lawful or unlawful, and one of them, without the knowledge or consent of the others, commits an offence, the others will not be involved in the guilt, unless the act done was in some manner in furtherance of the common intention. It is also said, that although a man is present when a felony is committed, if he takes no part in it, and does not act in concert with those who commit it, he will not be a principal merely because he did not endeavour to prevent it or to apprehend the felon. But if several persons go out together for the purpose of apprehending a man and taking him to the thannah on a charge of theft, and some of the party in the presence of the others beat and ill-treat the man in a cruel and violent manner, and the others stand by and look on without endeavouring to dissuade them from their cruel and violent conduct, it appears to me that those who have to deal with the facts might very properly infer that they were all assenting parties and acting in concert and that the beating was in furtherance of a common design. I do not know what the evidence was, all that I wish to point out is, that all who are present do not necessarily assist by their presence every act that is done in their presence, nor are consequently liable to be punished as principals.” 19. Before we deal further with Section 34 IPC, a peep at Section 33 IPC may give a better understanding. Section 33 IPC brings into its fold a series of acts as that of a single one. Before we deal further with Section 34 IPC, a peep at Section 33 IPC may give a better understanding. Section 33 IPC brings into its fold a series of acts as that of a single one. Therefore, in order to attract Section 34 to 39 IPC, a series of acts done by several persons would be related to a single act which constitutes a criminal offence. A similar meaning is also given to the word omission, meaning thereby, a series of omissions would also mean a single omission. This provision would thus make it clear that an act would mean and include other acts along with it. 20. Section 34 IPC creates a deeming fiction by infusing and importing a criminal act constituting an offence committed by one, into others, in pursuance to a common intention. The onus is on the prosecution to prove the common intention to the satisfaction of the court. The quality of evidence will have to be substantial, concrete, definite and clear. When a part of evidence produced by the prosecution to bring the accused within the fold of Section 34 IPC is disbelieved, the remaining part will have to be examined with adequate care and caution, as we are dealing with a case of vicarious liability fastened on the accused by treating him at par with the one who actually committed the offence. 21. What is required is proof of common intention. Thus, there may be an offence without common intention, in which case Section 34 IPC does not get attracted. 22. It is a team effort akin to a game of football involving several positions manned by many, such as defender, mid-fielder, striker, and keeper. A striker may hit the target, while a keeper may stop an attack. The consequence of the match, either a win or a loss, is borne by all the players, though they may have their distinct roles. A goal scored or saved may be the final act, but the result is what matters. As against the specific individuals who had impacted more, the result is shared between the players. The same logic is the foundation of Section 34 IPC which creates shared liability on those who shared the common intention to commit the crime. 23. A goal scored or saved may be the final act, but the result is what matters. As against the specific individuals who had impacted more, the result is shared between the players. The same logic is the foundation of Section 34 IPC which creates shared liability on those who shared the common intention to commit the crime. 23. The intendment of Section 34 IPC is to remove the difficulties in distinguishing the acts of individual members of a party, acting in furtherance of a common intention. There has to be a simultaneous conscious mind of the persons participating in the criminal action of bringing about a particular result. A common intention qua its existence is a question of fact and also requires an act “in furtherance of the said intention.” One need not search for concrete evidence, as it is for the court to come to a conclusion on a cumulative assessment. It is only a rule of evidence and thus does not create any substantive offence. 24. Normally, in an offence committed physically, the presence of an accused charged under Section 34 IPC is required, especially in a case where the act attributed to the accused is one of instigation/exhortation. However, there are exceptions, in particular, when an offence consists of diverse acts done at different times and places. Therefore, it has to be seen on a case to case basis. 25. The word “furtherance” indicates the existence of aid or assistance in producing an effect in future. Thus, it has to be construed as an advancement or promotion. 26. There may be cases where all acts, in general, would not come under the purview of Section 34 IPC, but only those done in furtherance of the common intention having adequate connectivity. When we speak of intention it has to be one of criminality with the adequacy of knowledge of any existing fact necessary for the proposed offence. Such an intention is meant to assist, encourage, promote and facilitate the commission of a crime with the requisite knowledge as aforesaid. 27. The existence of common intention is obviously the duty of the prosecution to prove. However, a court has to analyse and assess the evidence before implicating a person under Section 34 IPC. A mere common intention per se may not attract Section 34 IPC, sans an action in furtherance. 27. The existence of common intention is obviously the duty of the prosecution to prove. However, a court has to analyse and assess the evidence before implicating a person under Section 34 IPC. A mere common intention per se may not attract Section 34 IPC, sans an action in furtherance. There may also be cases where a person despite being an active participant in forming a common intention to commit a crime, may actually withdraw from it later. Of course, this is also one of the facts for the consideration of the court. Further, the fact that all accused charged with an offence read with Section 34 IPC are present at the commission of the crime, without dissuading themselves or others might well be a relevant circumstance, provided a prior common intention is duly proved. Once again, this is an aspect which is required to be looked into by the court on the evidence placed before it. It may not be required on the part of the defence to specifically raise such a plea in a case where adequate evidence is available before the court. xxx xxx xxx 36. Referring to the facts of this case, the short question which arises for adjudication in this appeal is whether the appellant Virendra Singh can be convicted under section 302 with the aid of section 34 IPC. Under the Penal Code, the persons who are connected with the preparation of a crime are divided into two categories: (1) those who actually commit the crime i.e. principals in the first degree and (2) those who aid in the actual commission i.e. principals in the second degree. The law does not make any distinction with regard to the punishment of such persons, all being liable to be punished alike. 37. Under the Penal Code, a person is responsible for his own act. A person can also be vicariously responsible for the acts of others if he had a common intention to commit the acts or if the offence is committed by any member of the unlawful assembly in prosecution of the common object of that assembly, then also he can be vicariously responsible. Under the Penal Code, two sections, namely Sections 34 and 149, deal with the circumstances when a person is vicariously responsible for the acts of others. 38. Under the Penal Code, two sections, namely Sections 34 and 149, deal with the circumstances when a person is vicariously responsible for the acts of others. 38. The vicarious or constructive liability under Section 34 IPC can arise only when two conditions stand fulfilled i.e. the mental element or the intention to commit the criminal act conjointly with another or others; and the other is the actual participation in one form or the other in the commission of the crime. 39. The common intention postulates the existence of a prearranged plan implying a prior meeting of the minds. It is the intention to commit the crime and the accused can be convicted only if such an intention has been shared by all the accused. Such a common intention should be anterior in point of time to the commission of the crime, but may also develop on the spot when such a crime is committed. In most of the cases, it is difficult to procure direct evidence of such intention. In most cases, it can be inferred from the acts or conduct of the accused and other relevant circumstances. Therefore, in inferring the common intention under section 34 IPC, the evidence and documents on record acquire great significance and they have to be very carefully scrutinized by the court. This is particularly important in cases where evidence regarding the development of the common intention to commit the offence graver than the one originally designed, during the execution of the original plan, should be clear and cogent. 40. The dominant feature of Section 34 is the element of intention and participation in action. This participation need not in all cases be by physical presence. Common intention implies acting in concert. 41. The essence of Section 34 IPC is a simultaneous consensus of the minds of the persons participating in a criminal action to bring about a particular result. Russell in his celebrated book Russell on Crime, 12th Edn. Vol. 1 indicates some kind of aid or assistance producing an effect in future and adds that any act may be regarded as done in furtherance of the ultimate felony if it is a step intentionally taken for the purpose of effecting that felony. It was observed by Russell that any act of preparation for the commission of a felony is done in furtherance of the act. 42. It was observed by Russell that any act of preparation for the commission of a felony is done in furtherance of the act. 42. Section 34 IPC does not create any distinct offence, but it lays down the principle of constructive liability. Section 34 IPC stipulates that the act must have been done in furtherance of the common intention. In order to incur joint liability for an offence there must be a prearranged and premeditated concert between the accused persons for doing the act actually done, though there might not be a long interval between the act and the premeditation and though the plan may be formed suddenly. In order that Section 34 IPC may apply, it is not necessary that the prosecution must prove that the act was done by a particular or a specified person. In fact, the section is intended to cover a case where a number of persons act together and on the facts of the case it is not possible for the prosecution to prove as to which of the persons who acted together actually committed the crime. Little or no distinction exists between a charge for an offence under a particular section and a charge under that section read with section 34.” 11. In R. vs. Rahman, 2008 UKHL 45 one of the assailants was armed with a knife and the appellants were armed with sticks. There was no evidence that the appellants had inflicted injuries. These facts were noticed as under: 4. There was no evidence that any of the appellants inflicted the fatal injuries. The participant who did was probably not apprehended. The prosecution alleged that the role of each appellant in the attack involved either the deliberate and intentional infliction of serious physical harm to the deceased or, by their conduct, the intentional encouragement of others to do likewise; that each appellant shared a common intention that serious bodily harm should be inflicted; and that the circumstances of the attack were such that each of them knew that weapons such as baseball bats, a scaffolding pole and a knife or knives might be used to inflict serious bodily harm. 5. 5. The evidence of each appellant was that he had joined the enterprise with at most an intention to cause serious harm, without knowledge or foresight that anyone else involved in the assault intended to kill, that he did not have a knife and did not know or foresee that anyone else had a knife and that, accordingly, the acts of the primary offender were outside the scope of any joint enterprise to inflict serious bodily harm. The first, second and fourth-named appellants denied participation in the fatal assault. The third-named appellant admitted being present, wearing a balaclava, with intent to join in the assault but said that before striking any blow he had been stunned by a blow to his head caused by a brick thrown by the deceased’s friend. 12. It was held that when one knew about the availability of the weapon which could cause the fatal injury, all would be liable. It was observed: 10. But there is what Sir Robin Cooke in Chan Wing-Siu vs. The Queen, p 175, called a “wider principle.” In R vs. Powell (Anthony), R vs. English, above, as Lord Hutton made plain in the opening sentence of his leading opinion (p 16), the House had to consider a more difficult question: the liability of a participant in a joint criminal enterprise when another participant in that enterprise is guilty of a crime, the commission of which was not the purpose of the enterprise. In the first appeal, that of Powell and Daniels, three men (including the two appellants) had gone to the house of a drug dealer in order to buy drugs, but when he had come to the door one of the three men (it was not clear which) had shot him dead. Since neither Powell nor Daniels could be identified as the gunman, they could be convicted only as accessories, but it was submitted on their behalf that they could not be convicted as accessories unless it was proved against them, to the criminal standard, that they had had the mens rea necessary for murder, namely an intention to kill or to cause really serious injury. An accessory could not, it was argued, be convicted on a basis, which would not suffice to convict the primary killer. 11. An accessory could not, it was argued, be convicted on a basis, which would not suffice to convict the primary killer. 11. While acknowledging an element of an anomaly in its decision (Lord Steyn, p 14; Lord Hutton, p 25), the House rejected that submission. Drawing on a strong line of authority which included R vs. Smith (Wesley), (1963) 1 WLR 1200, R vs. Anderson, R vs. Morris, (1966) 2 QB 110 , Chan Wing-Siu vs. The Queen, above; Hui-Chi-Ming vs. The Queen (1992) 1 AC 34 and McAuliffe vs. The Queen, (1995) 69 ALJR 621 the House held (p 21) that “participation in a joint criminal enterprise with foresight or contemplation of an act as a possible incident of that enterprise is sufficient to impose criminal liability for that act carried out by another participant in the enterprise.” Thus the House answered the certified question in the appeal of Powell and Daniels and the first certified question in the appeal of English by stating that (subject to the ruling on the second certified question in English) “it is sufficient to found a conviction for murder for a secondary party to have realised that in the course of the joint enterprise, the primary party might kill with intent to do so or with intent to cause grievous bodily harm.” Thus in this context, the touchstone is one of foresight. In the case of Powell and Daniels the Crown, the case was that the two appellants knew that the third man was armed with a gun, and the Crown accepted that if the jury did not find that they knew this they would not be guilty of murder (p 17). Since the jury was convicted, it may be inferred that they found the appellants did have this knowledge. Possession of the gun was not of itself conclusive, but it was evidence from which the jury could infer that the appellants foresaw (or “realised” or “contemplated”) that the gun might be used to inflict, at least, really serious injury. 13. Closer home, this question was considered in Thoti Manohar vs. State of Andhra Pradesh, (2012) 7 SCC 723 and it was held that when the accused went to the house of the deceased armed with deadly weapons, their common intention was duly proved. It was observed: “42. 13. Closer home, this question was considered in Thoti Manohar vs. State of Andhra Pradesh, (2012) 7 SCC 723 and it was held that when the accused went to the house of the deceased armed with deadly weapons, their common intention was duly proved. It was observed: “42. In Ram Tahal and Others vs. State of U.P. AIR 1972 SC 254 , while dealing with the applicability of Section 34 of the IPC, a two-judge Bench observed: “There is no doubt that a common intention should be anterior in time to the commission of the crime showing a pre-arranged plan and prior concert, and though it is difficult in most cases to prove the intention of an individual, yet it has to be inferred from the act or conduct or other relevant circumstances of the case. This inference can be gathered by the manner in which the accused arrived on the scene and mounted the attack, the determination and concert with which the beating was given or the injuries caused by one or some of them, the acts done by others to assist those causing the injuries, the concerted conduct subsequent to the commission of the offence, for instance, that all of them had left the scene of the incident together, and other acts which all or some may have done as would help in determining the common intention. In other words, the totality of the circumstances must be taken into consideration in arriving at the conclusion whether the accused had a common intention to commit an offence with which they could be convicted.” 43. In Rajesh Govind Jagesha vs. State of Maharashtra, AIR 2000 SC 160 , a two-judge Bench has held that: “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.” 44. In Bishna alias Bhiswadeb Mahato and Others vs. State of West Bengal, AIR 2006 SC 302 , it has been held that for the purpose of attracting Section 34 of the IPC, a specific overt act on the part of the accused is not necessary. He may even wait and watch. In Bishna alias Bhiswadeb Mahato and Others vs. State of West Bengal, AIR 2006 SC 302 , it has been held that for the purpose of attracting Section 34 of the IPC, a specific overt act on the part of the accused is not necessary. He may even wait and watch. Inaction on the part of an accused may sometimes go a long way to achieving a common intention or an object with others. 45. In Manik Das and Others vs. State of Assam, AIR 2007 SC 2274 , it has been held as follows: “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 the 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 Ch. Pulla Reddy and Others vs. State of Andhra Pradesh, AIR 1993 SC 1899 . 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.” 46. Coming to the case at hand, the appellant had an inimical relationship with the deceased and his family as the previous occurrences would show. Despite a consensus being arrived at that, there would be a panchayat on 26.9.2002, they, armed with deadly weapons, went to the house of the deceased and dragged the deceased. The previous meeting of minds with a pre- arranged plan or prior concert, as has been held by a number of authorities, is difficult to establish by way of direct evidence. The previous meeting of minds with a pre- arranged plan or prior concert, as has been held by a number of authorities, is difficult to establish by way of direct evidence. They are to be inferred from the conduct and circumstances. As is evincible, the weapons they carried were lethal in nature. The deceased was absolutely helpless and not armed with any weapon. It was most unexpected on their part as normally it was expected that there would be a panchayat on the next day.” 14. In the present case, the accused were armed with deadly weapons, namely, Axe and they were acting in concert. Any reasonable person could have imagined that a fatal injury could be caused by an Axe. Hence, prima facie, the accused is liable for the commission of an offence punishable under Sections 302, 307 of IPC read with Section 34 of IPC, even though, he had not caused fatal injury himself. 15. A heavy reliance was placed upon the fact that there are contradictions in the F.I.R. and the statement of Gurmail Singh. F.I.R. mentioned that Gurmail reached the spot and rescued the informant, whereas Gurmail stated that the was taking tea in the house of Deshraj. First, it is not permissible for this Court to appreciate the evidence while dealing with the bail petition. Secondly, there is no real contradiction in the two statements of Gurmail because Gurmail can reach the spot after hearing the cries while taking tea in the house of Desh Raj. It was nowhere mentioned in the F.I.R. from where Guramil had reached the spot and the contents of the F.I.R. cannot be said to be contradictory to the statement of Gurmail. 16. Reliance was placed upon the F.I.R. lodged by the petitioner’s mother. It is an admitted case that police prepared a cancellation report. A copy of the cancellation, report Annexure P/1 reads that as per versions of the witnesses Kunti Devi, Puneet and Kailash attacked the other party in their courtyard and lodged the F.I.R. to save themselves. This report clearly shows that the incident had taken place in the courtyard of the deceased Deshraj. Hence, prima facie, the petitioner is an aggressor and the plea that the petitioner was acting in self-defence has not been established at this stage. 17. This report clearly shows that the incident had taken place in the courtyard of the deceased Deshraj. Hence, prima facie, the petitioner is an aggressor and the plea that the petitioner was acting in self-defence has not been established at this stage. 17. In Mukesh Kumar’s case (supra), the Hon’ble Supreme Court held that the question of who was the aggressor will depend upon the appreciation of evidence and it will be decided by the learned Trial Court at the appropriate stage. The petitioner was in custody and crucial witnesses had been examined, therefore, the bail was granted. 18. In the present case, the document placed by the petitioner on the record itself shows that the petitioner and other co-accused were the aggressors. Further, the crucial witnesses have not been examined. The learned Trial Court has recorded in the bail order that the trial was already fixed on 16.11.2023 and was likely to conclude in November 2023. This shows that the witnesses have not been examined. The order sheet further shows that the witnesses could not be examined as the accused filed an application seeking transfer. Therefore, in these circumstances, the plea of the petitioner that he is entitled to bail on the ground of delay has not been established at this stage. 19. Keeping in view the gravity of the offence and the punishment which can be imposed, the petitioner is not entitled to bail. Consequently, the petition fails and the same is dismissed. 20. The observations made hereinabove are regarding the disposal of this petition and will have no bearing, whatsoever, on the merits of the case.