# Mahadev Prasad & Anr. (In Jail) v. State of U.P

- **Citation:** Criminal Appeal No. 60 of 2001
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2020-05-29
- **Case number:** Criminal Appeal No. 60 of 2001
- **Bench:** B. Amit Sthalekar, Ali Zamin
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/mahadev-prasad-anr-in-jail-v-state-of-u-p-46182
- **Pages:** 13

## Headnote

Criminal law-Indian Penal Code (45 of
1860)-Section 302, Section 34 - Common
intention - Proof - To invoke Section 34
IPC it must be established : (i) common
intention and (ii) participation of the
accused in the commission of an offence -
an act, whether overt or covert, is
indispensable to be done by a co-accused
-
overt
or
covert
act,
totality
of
circumstances, conduct of the accused
must be taken into consideration in
arriving at the conclusion whether the
accused had the such intention to commit
an offence of which he could be convicted
(19, 24)
Evidence law - Evidence Act (1 of 1872) ,
Section 3 - Murder - Exhortation to assault
- Evidence of exhortation is by nature a
weak piece of evidence - however if the
58 INDIAN LAW REPORTS ALLAHABAD SERIES
evidence is clear, cogent and reliable
conviction can be recorded against the
person alleged to have exhorted the
actual assailant (Para 23)

In pradhan election Deceased Manish worked
for winning candidate - accused Mahadev
contested but lost election on account of which
he was bearing enmity with the deceased -
appellants came armed with country-made
pistol - appellant Indra Pal and Gulab Singh
exhorted accused Mahadev to kill - on which
Mahadev fired a shot on the chest of the
deceased - receiving the shot he died then and
there- after firing shot all accused fled together
- Held - circumstances clearly demonstrate that
all the accused had common intention to kill the
deceased Manish - act of exhortation of the
appellant leading to the killing of deceased
Manish in furtherance of common intention -
clear, cogent and reliable evidence against the
appellant Indra Pal in perpetration of the crime -
conviction and sentence proper. (Para 35)

Appeal dismissed (E-5)

List of cases cited :

## Text

_Characters 0–39,895 of 43,694. This is a partial read: ask again with offset=39895 for what follows._

3-5 All. Mahadev Prasad & Anr. Vs. State of U.P.
57
appellants collectively amounts to culpable
homicide
amounting
to
murder
and
punishable under Section 302 IPC bringing
all of them under joint liability of the
offence. The conviction and sentence of
appellants
under
Section
302/149
is
confirmed. The conviction and sentence of
appellants under Section 147 is also
confirmed. The conviction and sentence of
appellants, Avadhesh Kumar, Patrakhan,
Sheo Poojan under Section 148 is also
confirmed. The conviction and sentence of
appellants, Avadhesh Kumar and Sheo
Poojan under Section 201 IPC is also
confirmed. .

72. We do not find any error in the
impugned judgment. It is evincible from
the evidence on record that all the accused
were in prior consultation and pre-planned
to kill Roop Narain and to further this
common object they came to the place of
occurrence and committed the crime.

73. Thus, we do not find any merit in
the criminal appeal, therefore, the same is
liable to be dismissed it is accordingly
dismissed.

Order

(i) The criminal appeal no. 14 of
1985
preferred
by
accused-appellants,
Avadhesh Kumar, Patrakhan, Sheo Poojan,
Uma Shanker alias Dalla and Kalloo
arising out of judgment and order of
sentence passed in Sessions Trial No. 117
of 1982, Crime No. 152 of 1981, Police
Station Laharpur, District Sitapur under
Sections 147, 148, 149, 302, 201 IPC is
dismissed. The judgment and order of
sentence of life imprisonment is confirmed.

(ii) Copy of the judgment be sent
to Sessions Judge, Sitapur to ensure
compliance under intimation to this Court.

(iii) The Office is directed to
provide
the
copy
of
the
judgment
separately to all the five appellants
promptly.

(iv) The office is further directed
to enter the judgment in compliance
register maintained for the purpose on the
Court.
----------
(2020)03-05ILR A57
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 29.05.2020

BEFORE
THE HON'BLE B. AMIT STHALEKAR, J.
THE HON'BLE ALI ZAMIN, J.

Criminal Appeal No. 60 of 2001

Mahadev Prasad & Anr.
 ...Appellants(In Jail)
Versus
State of U.P. ...Opposite Party

Counsel for the Appellants:
Sri B.D. Maurya, Sri Shashi Dhar Pandey

Counsel for the Opposite Party:
A.G.A.

Criminal law-Indian Penal Code (45 of
1860)-Section 302, Section 34 - Common
intention - Proof - To invoke Section 34
IPC it must be established : (i) common
intention and (ii) participation of the
accused in the commission of an offence -
an act, whether overt or covert, is
indispensable to be done by a co-accused
-
overt
or
covert
act,
totality
of
circumstances, conduct of the accused
must be taken into consideration in
arriving at the conclusion whether the
accused had the such intention to commit
an offence of which he could be convicted
(19, 24)
Evidence law - Evidence Act (1 of 1872) ,
Section 3 - Murder - Exhortation to assault
- Evidence of exhortation is by nature a
weak piece of evidence - however if the
58 INDIAN LAW REPORTS ALLAHABAD SERIES
evidence is clear, cogent and reliable
conviction can be recorded against the
person alleged to have exhorted the
actual assailant (Para 23)

In pradhan election Deceased Manish worked
for winning candidate - accused Mahadev
contested but lost election on account of which
he was bearing enmity with the deceased -
appellants came armed with country-made
pistol - appellant Indra Pal and Gulab Singh
exhorted accused Mahadev to kill - on which
Mahadev fired a shot on the chest of the
deceased - receiving the shot he died then and
there- after firing shot all accused fled together
- Held - circumstances clearly demonstrate that
all the accused had common intention to kill the
deceased Manish - act of exhortation of the
appellant leading to the killing of deceased
Manish in furtherance of common intention -
clear, cogent and reliable evidence against the
appellant Indra Pal in perpetration of the crime -
conviction and sentence proper. (Para 35)

Appeal dismissed (E-5)

List of cases cited :

1. Jainul Haque Vs St. Of Bihar AIR 1974
SC1651

2. Ramesh Singh @ Photti Vs St. Of A. P.
AIR2004 (SC) 4545

3. Suresh & anr. Vs St. Of U.P. 2001 3 SCC 673

4. Surendra Chauhan Vs St. Of MP.,2000 4 SCC
110

5. Pandurang Vs St. Of Hyderabad 1955 1 SCR
1083

6. Gangabhavani Vs Rayapati Venkat Reddy &
ors. (2013) 15 SCC 298

(Delivered by Hon'ble Ali Zamin, J.)

1. Heard Sri Shashi Dhar Pandey,
learned counsel for the appellant, learned
A.G.A for the State and perused record
carefully.

2. This is an appeal challenging the
judgment and order dated 20.12.2000
passed in S.T. No.131 of 1996 (State vs.
Mahadev and others) by which the learned
IIIrd Additional Sessions Judge, Firozabad
has convicted the appellants under Section
302/34 I.P.C. and sentenced each of the
appellants to undergo imprisonment for life
and fine Rs.5,000/-.to appellant Mahadev
Prasad @ Shiv Ram Goojar, Rs 1000/ to
appellant Indra Pal @ Guddu and in default
of payment of fine they have been directed
to
undergo
additional
rigorous
imprisonment for a period of three months
and one month respectively.

3. At the outset it is noted that during
pendency of the trial Gulab Singh @ Golia
died, his case was abated vide order dated
06.7.2000 and during pendency of the
appeal, appellant no.1 Mahadev Prasad @
Shivram Goojar also died and appeal
against him has been dismissed as abated
vide order dated 07.01.2019. Hence this
appeal is confined to appellant no.2 Indra
Pal Singh @ Guddu only.

4. Briefly stated, the facts of the case,
as culled out from the case of prosecution,
are that the candidate of informant Dinesh
Upadhyay had won the election of Gram
Pradhan. Accused Mahadev Prasad @
Shivram Goojar s/o Maharaj Singh Goojar
also contested the election and he was
defeated. Manish, the deceased had worked
for winning candidate of Pradhan. On
account of which Mahadev Prasad @
Shivram Goojar, Indra Pal @ Guddu, son
of Maharaj Singh and Gulab Singh @
Golia son of Rajbir Jatav of his village
were bearing enmity with him. On account
of this enmity, to avenge from him
Mahadev Prasad @ Shivram Goojar kept
his wife and children along with all
belongings at his house to somewhere else.
3-5 All. Mahadev Prasad & Anr. Vs. State of U.P.
59
Mahadev and his brother Indra Pal used to
visit the house. On 13.08.1995 at about
6:00 p.m. Manish Upadhyay was sitting on
a cot in front of his house. Informant
Dinesh Upadhyay, Chandrabhan son of
Srichandra, Raghvendra son of Om Prakash
and Virendra Dubey son of Sri Ram Gopal
Dubey resident of Rashidpur Kanetha, P.S.
Matsaina were also sitting at a some
distance, when the accused Mahadev
Prasad @ Shivram Goojar, Indra Pal @
Guddu and Gulab Singh @ Golia came
having country-made pistol in their hand.
Indra Pal @ Guddu and Gulab Singh @
Golia exhorted Mahadev to kill stating that
because of him they have been defeated,
upon this Mahadev Prasad @ Shivram
Goojar fired a shot on the chest of Manish
from a country-made pistol. On which he
fell down and died. After firing the shot all
the three accused fled, they were chased
but pointing country-made pistol and
threatening of dire consequences, accused
fled away towards north side.

5. On the basis of written report
Ext.Ka-1 of informant Dinesh Upadhyay,
Case Crime No.72/1995, under Sections
302/34 against accused was registered
under chik F.I.R. Ext. Ka-8 on 13.08.1995
at 19:15 p.m. and investigation of the case
was handed over to S.H.O. Virendra Singh.
Virendra
Singh,
Investigating
Officer
reached the place of incident and prepared
inquest memo Ext.Ka-3. He also prepared
relevant papers i.e. letter to R.I. (Ext.Ka-4),
challan lash (Ext.Ka-5) photo lash (Ext.Ka6), letter to C.M.O. (Ext.Ka-7) and
dispatched the dead body for postmortem
along with constable Jagvir Singh.

6. P.W.6 Dr. S.L. Saraswat conducted
postmortem
of
the
dead
body
on
14.08.1995 at 01:00 p.m. and prepared its
report (Ext.Ka-10), according to which
following injuries were found on the dead
body:

(i). Gun shot wound of 1.2 c.m. x
1 c.m. on the right side of the middle part
of chest. Margin inverted, blackening and
tattooing were present. Track is directing
medial downward, on cutting underneath
tissue is tattooed.

(ii). Multiple pin point sized
abrasions all over in front both sides of
chest were present and right side lung was
lacerated.

In opinion of the doctor injuries
were possible by fire arm and due to the
injuries death was possible. The injuries
were
possible
to
have
occurred
on
13.08.1995 at 6:00 p.m.

7. On 15.08.1995, investigation of the
case was handed over to S.I. D.N. Pandey.
On 16.08.1995, Investigating Officer took
into his possession, the cot on which
deceased Manish was sitting at the time of
incident and prepared its memo Ext.Ka-2.
He also prepared spot map Ext. Ka-11.
After completing the investigation he
submitted charge sheet (Ext.Ka-10) against
accused Mahadev Pradad @ Shivram
Goojar, Indra Pal @ Guddu and Gulab
Singh @ Golia under Section 302/34 I.P.C..

8. Since the offence under Section
302/34 I.P.C. is exclusively triable by Court
of Sessions, therefore, C.J.M., Firozabad
committed the accused to the court of
Sessions for trial where Case Crime No.72
of 1995, under Section 302/34 I.P.C. was
registered as S.T. No.131 of 1996, where
from the trial was made over to the court of
IInd Additional Sessions Judge, who
framed charge under Section 302/34 I.P.C.
against the accused persons. In due course
of trial, the case was again transferred from
the court of IInd additional sessions judge
60 INDIAN LAW REPORTS ALLAHABAD SERIES
Firozabad to the court of IIIrd Additional
Sessions Judge Firozabad.

9. To prove the charge against the
accused,
prosecution
produced
seven
witnesses.
P.W.1
Dinesh
Upadhyay
informant, P.W.2 Raghvendra and P.W.3
Chhotey Lal are the witnesses of fact.
P.W.4
S.I.
Virendra
Singh,
first
Investigating Officer. P.W.5 Suresh Babu
Sharma scribe of chik FIR and G.D. and
also deposed as a witness for secondary
evidence on account of death of IInd I.O.
D.N. Pandey. P.W.6 Dr. S.L. Saraswat
conducted postmortem and P.W.7 Jagvir
Singh carrier of the dead body for
postmortem, are the formal witnesses.

10. After examination of prosecution
witnesses statement of accused persons
were recorded under Section 313 Cr.P.C., in
which they pleaded, case falsely proceeded
against them. In defence, no witness has
been produced by them.

11. After hearing to the parties and
perusal of the record, learned IIIrd
Additional
Sessions
Judge
Firozabad
passed the impugned judgment and order as
disclosed in para 2 of the judgment. Hence
this appeal.

12. Sri Shashi Dhar Pandey, learned
counsel for the appellant submits that role
of exhortation has been assigned to the
appellant. Evidence of exhortation is a very
weak type of evidence. Apart from the role
of exhortation, there is no evidence against
the appellant. He also submits that as per
FIR as well as ocular evidence single fire
was made but in postmortem report two
injuries
have
been
found.
PW-2
Raghvendra is relative and resident of other
village, no independent or neighborhood
witness has been produced. Learned trial
court without proper evaluation of the
evidence has convicted and sentenced the
appellant which is not sustainable in the
eye of the law and it is liable to set aside.

13. Per contra learned AGA submits
that there was pradhan election enmity.
Accused Mahadev had contested the Gram
pradhan election. In the election he was
defeated and one Chunni Lal had won the
election. Deceased Manish had worked for
Chunni Lal, the winning candidate of
Pradhan. On account of which accused
Mahadev was bearing enmity against the
Manish that because of him he has lost the
election. Accused Indra Pal is brother of
accused Mahadev and accused Gulab Singh
@ Golia is his friend. On account of the
election enmity all accused armed with
country-made pistol came to the place of
incident and on exhortation of accused
Indra Pal and Gulab Singh accused
Mahadev fired at the deceased from his
country-made pistol which hit his chest and
due to the injury caused by him he died on
the spot. Incident had occurred at 6.00 p.m.
on 13.8.95 and its prompt FIR on the same
day at 19.15 p.m. has been lodged giving
details. It is a day light incident. From the
prosecution evidence charge is fully proved
against the accused appellant. Learned trial
court evaluating properly the evidence on
record has rightly convicted and sentenced
them and no interference is required by this
court.

14. The incident had occurred at 6.00
p.m. on 13.08.95 and its information to the
police station as per FIR Ext Ka-8 was
given
at
19.15
p.m.
PW-1
Dinesh
Upadhyay has stated that he had written the
report at his house. He has also stated that
in scribing the report and seeing the son, it
took half an hour. As per chik FIR distance
of police station from the place of incident
3-5 All. Mahadev Prasad & Anr. Vs. State of U.P.
61
is 3 km and according to informant he went
to the police station by cycle, in such
circumstance it appears that FIR has been
lodged promptly without deliberation and
consultation.

15. It is not disputed that it is a case
of day light occurrence. It is also not
disputed that deceased Manish died of
homicidal violence. It is evident from the
medical evidence adduced in the case. PW6
Dr
S.L.
Saraswat
has
conducted
postmortem and prepared report Ext Ka-10,
according to which there was a gun shot
wound of 1.2 c.m. x 1 c.m. on the right side
of the middle part of chest. Margin
inverted, blackening and tattooing were
present.
Track
is
directing
medial
downward on cutting underneath tissue is
tattooed and multiple pin point sized
abrasions all over in front on both sides of
chest were present and right side lung was
lacerated. In opinion of the doctor injuries
were possible by fire arm and due to the
injuries death was possible on 13.08.1995
at 06:00 p.m.. From the above, it is clear
that Manish died due to the injuries
sustained by him.

16. As per Ext. Ka-8 chik FIR
deceased Manish Upadhyay on 13.8.95 at
6.00 p.m. was sitting on a cot in front of his
house at that time Mahadev prasad, Indra
Pal and Gulab Singh came having countrymade pistol in their hand, Indra Pal and
Gulab Singh Exhorted to kill saying that
because of him we have lost the election,
upon which Mahadev fired a shot from
country-made pistol on the chest of
Manish, upon which he fell down there and
died. After firing the shot all the accused
fled away towards north. PW-1 Dinesh
Upadhyay and PW-2 Raghvendra have
supported the FIR version through their
testimony and from their cross examination
nothing has been extracted by defence so
that their testimony with regard to coming
of accused persons having country-made
pistol in their hand and exhortation to the
accused Mahadev by Indra Pal and Gulab
Singh to kill, can be doubted. From the
prosecution evidence it is explicit that role
of the appellant is one of exhortation.

17. Now the question before us is that
whether the act of exhortation of the
appellant Indra Pal is leading to the doing
of a criminal act in furtherance of common
intention. To appreciate the issue, it will be
apt to refer the law laid down by Hon'ble
Supreme Court in this regard.

18. In case of Jainul Haque vs State
Of Bihar, AIR 1974 SC1651, Hon'ble
Supreme Court in para 8 of its judgment
has held as under:

"The evidence of exhortation is,
in the very nature of things, a weak piece of
evidence. There is quite often a tendency to
implicate some person, in addition to the
actual assailant by attributing to that
person an exhortation to the assailant to
assault the victim. Unless the evidence in
this respect be clear, cogent and reliable,
no conviction for abetment can be recorded
against the person alleged to have exhorted
the actual assailant."

19. In general, principle of criminal
law is that the person who commits the
offence can be held guilty. Section 34 of
Indian Penal Code lays down principle of
joint liability in doing criminal act. The
essence of liability is to be found in
existence
of
a
common
intention
connecting the accused leading to the doing
of a criminal act in furtherance of such
intention. If criminal act is done in
furtherance of common intention then
62 INDIAN LAW REPORTS ALLAHABAD SERIES
every person who did the criminal act with
the common intention will be liable for the
act. Common intention essentially being a
state of mind, therefore, it is very difficult
to procure direct evidence to prove such
intention. Hence, in majority of cases it has
to be inferred from the overt or covert act,
other relevant circumstances of the case
and conduct of accused in totality of
circumstances of the case. In this regard
gainfully, para 12 of the judgment of apex
court in the case of Ramesh Singh @
Photti VS State Of A. P. AIR2004 (SC)
4545, is quoted as under:

"12. To appreciate the arguments
advanced on behalf of the appellants it is
necessary to understand the object of
incorporating Section 34 in the Indian
Penal Code. As a general principle in a
case of criminal liability it is the primary
responsibility of the person who actually
commits the offence and only that person
who has committed the crime can be held
to guilty. By introducing Section 34 in the
penal code the Legislature laid down the
principle of joint liability in doing a
criminal act. The essence of that liability is
to be found in the existence of a common
intention connecting the accused leading to
the doing of a criminal act in furtherance
of such intention. Thus, if the act is the
result of a common intention then every
person who did the criminal act with that
common intention would be responsible for
the offence committed irrespective of the
share which he had in its perpetration.
Section 34 IPC embodies the principles of
joint liability in doing the criminal act
based on a common intention. Common
intention essentially being a state of mind it
is very difficult to procure direct evidence
to prove such intention. Therefore, in most
cases it has to be inferred from the act like,
the conduct of the accused or other relevant
circumstances of the case. The inference
can be gathered by the manner in which the
accused arrived at the scene, mounted the
attack, determination and concert with
which the attack was made, from the nature
of injury caused by one or some of them.
The contributory acts of the persons who
are not responsible for the injury can
further be inferred from the subsequent
conduct after the attack. In this regard even
an illegal omission on the part of such
accused can indicate the sharing of
common intention. In other words, the
totality of circumstances must be taken into
consideration in arriving at the conclusion
whether the accused had the common
intention to commit an offence of which
they could be convicted."

20. In Suresh and another vs State
Of U.P. 2001 3 SCC 673, Hon'ble Supreme
Court in para 24 of its judgment has held as
under:

"24. Looking at the first postulate
pointed out above, the accused who is to be
fastened with liability on the strength of
Section 34, IPC should have done some act
which has nexus with the offence. Such act
need not be very substantial, it is enough
that the act is only for guarding the scene
for facilitating the crime. The act need not
necessarily be overt, even if it is only a
covert act it is enough, provided such a
covert act is proved to have been done by
the co-accused in furtherance of the
common intention. Even an omission can,
in certain circumstances, amount to an act.
This is the purport of Section 32, IPC. So
the act mentioned in Section 34, IPC need
not be an overt act, even an illegal
omission to do a certain act in a certain
situation can amount to an act, e. g. a coaccused, standing near the victim face to
face saw an armed assailant nearing the
3-5 All. Mahadev Prasad & Anr. Vs. State of U.P.
63
victim from behind with a weapon to inflict
a blow. The co-accused, who could have
alerted the victim to move away to escape
from the onslaught deliberately refrained
from doing so with the idea that the blow
should fall on the victim. Such omission
can also be termed as an act in a given
situation. Hence an act, whether overt or
covert, is indispensable to be done by a coaccused to be fastened with the liability
under the section. But if no such act is done
by a person, even if he has common
intention
with
the
others
for
the
accomplishment of the crime, Section 34,
IPC cannot be invoked for convicting that
person. In other words, the accused who
only keeps the common intention in his
mind, but does not do any act at the scene,
cannot be convicted with the aid of Section
34, IPC. "

21. In Surendra Chauhan VS State
Of M. P. , 2000 4 SCC 110, Hon'ble
Supreme Court in para 11 of its judgment
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 Ayhangar & Ors. v. State of
Tamil Nadu2. 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 v. State of Maharashtra3. 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. It has to
be
inferred
from
the
facts
and
circumstances of each case."

22. In Pandurang VS State Of
Hyderabad, 1955 1 SCR 1083, Hon'ble
Supreme Court in para 34 and 35 of its
judgment has held as under:

"34. In the present case, there is
no evidence of any prior meeting. We know
nothing of what they said or did before the
attack-not
even
immediately
before.
Pandurang is not even of the same caste as
the others. Bhilia. Tukia and Nilia are
Lambadas, Pandurang is a Hatkar and
Tukaram a Maratha. It is true prior concert
and arrangement can, and indeed often
must be determined from subsequent
conduct as; for example, by a systematic
plan of campaign unfolding itself during
the course of the action which could only
be referable to prior concert and prearrangement, or a running away together
64 INDIAN LAW REPORTS ALLAHABAD SERIES
in
a
body
or
a
meeting
together
subsequently. But, to quote the Privy
Council again,

"the
inference
of
common
intention should never be reached unless it
is a necessary inference deducible from the
circumstances of the case".

But to say this is no more than to
reproduce
the
ordinary
rule
about
circumstantial evidence, for there is no
special rule of evidence for this class of
case. At bottom, it is a question of fact in
every case and however similar the
circumstances, facts in one case cannot be
used as a precedent to determine the
conclusion on the facts in another. All that
is necessary is either to have direct proof of
prior concert, or proof of circumstances
which necessarily lead to that inference, or,
as we prefer to put it in the time-honoured
way, "the incriminating facts must be
incompatible with the innocence of the
accused and incapable of explanation on
any other reasonable hypothesis". (Sarkar s
Evidence, 8th edition, page 30).

35. The learned counsel for the
state relied on - Mamand v. Emperor , AIR
1946 PC 45 (C), because in that case the
accused all ran away and their Lordships
took that into consideration to establish a
common intention. But there was much
more than that. There was evidence of
enmity on the part of the accused who only
joined in the attack but had no hand in the
killing; and none on the part of the two who
did the actual murder. There was evidence
that all three lived together and that one
was a younger brother and the other a
tenant of the appellant in question. There
was evidence that they all ran away
together: not simply that they ran away at
the same moment of time when discovered,
but that they ran away together .

As we have said, each case must
rest on its own facts and the mere similarity
of the facts in one case cannot be used to
determine a conclusion of fact in another.
In the present case, we are of opinion that
the facts disclosed do not warrant an
inference
of
common
intention
in
Pandurang s case. Therefore, even if that
had been charged, no conviction could
have followed on that basis. Pandurang is
accordingly only liable for what he actually
did."

23. From the law laid down in the
above referred cases it can be deduced that
evidence of exhortation is a weak piece of
evidence. There is quite often a tendency to
implicate some person, in addition to the
actual assailant by ascribing to that person
role of an exhortation to the assailant to
assault the victim. Unless the evidence in
this respect is clear, cogent and reliable, no
conviction can be recorded against the
person alleged to have exhorted the actual
assailant.

24. The essence of joint liability in
doing a criminal act is to be found in the
existence
of
a
common
intention
connecting the accused leading to the doing
of a criminal act in furtherance of such
intention. If the act is the result of a
common intention then every person who
did the criminal act with that common
intention would be responsible for the
offence committed irrespective of the share
which he had in its perpetration. Common
intention essentially being a state of mind it
is very difficult to procure direct evidence
to prove it. Hence, in most cases it has to
be inferred from the conduct of the accused
or other relevant circumstances of the case.
The inference can be gathered by the
manner in which the accused arrived at the
scene, mounted the attack, determination
and concert with which the attack was
made, from the nature of injury caused by
3-5 All. Mahadev Prasad & Anr. Vs. State of U.P.
65
one or some of them. The contributory acts
of the persons who are not responsible for
the injury can further be inferred from the
subsequent conduct after the attack. Even
an illegal omission on the part of such
accused can indicate the sharing of
common intention. The act need not be
very substantial, it is enough that the act is
only for guarding the scene for facilitating
the crime. Presence of the accused, who in
one way or other facilitate the execution of
common design is tantamount to actual
participation in the criminal act. The act
need not necessarily be overt, even a covert
act is enough, provided such a covert act is
proved to have been done by the coaccused in furtherance of the common
intention. To invoke Section 34 IPC two
factors must be established : (i) common
intention and (ii) participation of the
accused in the commission of an offence.
To fasten the liability u/s 34 IPC an act,
whether overt or covert, is indispensable to
be done by a co-accused. If no such act is
done by a person, even if he has common
intention
with
the
others
for
the
accomplishment of the crime, Section 34,
IPC cannot be invoked for convicting that
person. In other words, the accused who
only keeps the common intention in his
mind, but does not do any act at the scene,
cannot be convicted with the aid of Section
34, IPC. To ascertain common intention,
totality of circumstances must be taken into
consideration in arriving at the conclusion
whether the accused had the such intention
to commit an offence of which he could be
convicted.

25. Now, keeping in view the above
proposition, we proceed to analyze the
evidence in the instant case. As per chik
FIR Ext Ka-8 in Gram Panchayat Pradhan
election informant candidate had won the
election and Mahadev had lost the election
of Pradhan. On account of loosing the
election Mahadev, Indra Pal and Gulab
Singh were bearing enmity with the
informant. PW-1 Dinesh Upadhyay has
deposed that before the incident, BDC and
Gram Panchayat Pradhan election was
held. In view of the party organization his
son Manish had worked for the winning
party. Mahadev had also contested election
of Pradhan,who lost the election. On
account of this Mahadev was bearing
enmity. Defence has not put any question to
this witness with regard to Manish had
worked for winning party and accused were
bearing enmity on account of election of
Pradhan, thus, the evidence of the witness
with regard to bearing enmity by accused
Mahadev on account of defeat in Pradhan
election is not controverted. Hence we have
no reason to doubt it. Thus, evidence of
PW-1 Dinesh Upadhyay with regard to
bearing enmity on account of Pradhan
election is corroborated with the FIR. In
view of the above, enmity of accused
Mahadev on account Pradhan election is
established.

26. As per FIR Ext. Ka-8, accused
Mahadev with intention to avenge due to
enmity, had shifted his wife along with his
children and household to somewhere else.
PW-1 Dinesh Upadhyay has supported the
FIR version as he has stated that before the
incident Mahadev under a planning had
shifted all the goods of his house along
with family to somewhere else, only
Mahadev and Indra Pal used to visit. On
asking in cross examination again he has
stated that one-two week before the
incident accused Mahadev and Indra Pal
had shifted the family and goods from the
village and accused used to visit. He has
also stated that the incidence of shifting the
family
and
goods
was
within
his
knowledge. Although he has stated that he
66 INDIAN LAW REPORTS ALLAHABAD SERIES
did not tell to the investigating officer in his
statement about shifting of family and
children one-two week before the incident,
but it will not have any adverse effect on
the prosecution case because it is already
disclosed in the FIR and supported by his
dock evidence. Thus evidence of PW-1
Dinesh, regarding shifting of family and
goods to somewhere else before the
incident is also corroborated with the FIR.
As such from the evidence it is also
established that before the incident accused
Mahadev had shifted his family and goods
to somewhere else and accused Mahadev
and Indra Pal used to visit the house.

27. According to the FIR after firing
the shot all the three accused fled towards
north, when they were chased, then
pointing country-made pistol they fled
away.
PW-1
Dinesh
Upadhyay
has
supported this fact also by stating that the
accused fled towards north, Chandra Bhan,
Virendra
and
Raghvendra
chased
them,while fleeing Mahadev fell down
stumbling
with
brick
and
accused
threatened that, if proceeded ahead will be
killed. In cross examination he has stated
that he did not disclose this fact in the
report Ext Ka-1. He has stated that he does
not remember as to whether he had told this
fact to the investigating officer or not. If
statement of Dinesh is ignored whether
accused fell down or not while fleeing,
from his testimony it is clear that when
after the incident accused fled they were
chased by Chandra Bhan, Virendra and
Raghvendra. Prosecution has produced
PW-2 Raghvendra, who has stated that he
and Virendra chased the accused, Chandra
Bhan was also with them, accused
Mahadev, Indra Pal and Gulab Singh
pointing
country-made
pistol
had
threatened that return back otherwise you
will be killed, then they returned. On
asking in cross examination he has stated
that he, his friend Virendra had tried to
catch the accused but accused had pointed
country-made pistol and all the three
accused
pointing
country-made
pistol
threatened that you will be also killed. He
has further stated that he had chased the
accused 10-12 steps, he does not remember
as to whether he had told to the
investigating officer about chasing the
accused
and
threatening
by
accused
pointing country-made pistol to return back
otherwise will be killed. Since in the FIR it
is mentioned that pointing country-made
pistol accused fled away, so his above
statement will not have any adverse bearing
on the prosecution case. He has also stated
that he knows the accused before the
incident. Thus, with regard to accused fled
after the incident and they were chased then
by pointing country made pistol towards
PW-2
Raghvendra
and
others
and
threatening of dire consequences, they fled
away, evidence of PW-1 and PW-2 is
consistent and corroborated with the FIR.
Accordingly from the evidence it is also
established that all the accused fled
together after the incident and they were
chased by PW-2 Raghvendra and others,
then by pointing country-made pistol and
threatening of dire consequences, all the
accused fled away.

28. As per postmortem report
proved by PW-6 Dr S.L. Sarswat two
injuries:

1. Gun shot wound of 1.2 c.m.
x 1 c.m. on the right side of the middle
part
of
chest.
Margin
inverted,
blackening and tattooing were present.
Track is directing medial downward on
cutting under neath tissue is tattooed.

2. Multiple pin point sized
abrasions all over in front of chest both
3-5 All. Mahadev Prasad & Anr. Vs. State of U.P.
67
sides at front were present and right side
lung was lacerated, have been recorded.

Dr S.L. Sarswat in his cross
examination has stated that both injuries
are possible by single fire. Thus, recording
two injuries by the Doctor, does not
demonstrate that two shots were fired. In
view of the statement of the doctor as well
as prosecution case of single shot was fired,
submission of learned counsel for the
appellant is devoid of substance that as per
FIR as well as ocular evidence single fire
was made but in postmortem report two
injuries have been found.

29. As per FIR Ext. Ka-8, apart from
informant Dinesh Upadhayay, incident was
witnessed by Sri Chandrabhan, Raghvendra
and Virendra Dubey. According to P.W.1
Dinesh Upadhayay, Chandrabhan belong to
his pedigree and witness Raghvendra is his
brother-in-law (Sala) and witness Virendra
is friend of Raghvendra. Raghvendra and
Virendra both are resident of village
Rashidpur,
Kanetha.
Since
as
per
prosecution case no independent or other
neighborhood, witness except Chandrabhan
belonging to his pedigree, thereby related
to the informant, has witnessed the
incident, therefore, submission of the
learned counsel for the appellant is without
substance that no independent witness or
neighborhood witness has been produced.

30. Regarding related witness in case
of Gangabhavani vs. Rayapati Venkat
Reddy and others, (2013) 15 SCC 298,
Hon'ble Supreme Court in para 15 of its
judgment has held as under:

"15.
It
is
a
settled
legal
proposition that the evidence of closely
related witnesses is required to be carefully
scrutinized and appreciated before any
conclusion is made to rest upon it,
regarding the convict/accused in a given
case. Thus, the evidence cannot be
disbelieved merely on the ground that the
witnesses are related to each other or to the
deceased. In case the evidence has a ring of
truth to it, is cogent, credible and
trustworthy, it can, and certainly should,
relied upon. (Vide Bhagaloo Lodh v. State
of U.P., (2011) 12 SCC 206 and Dahari v.
State of U.P. (2012) 10 SCC 256)"

31. Thus, keeping in view the law laid
down by the Hon'ble Supreme Court in the
above referred case, testimony of the
witness P.W.2 Raghvendra is to be
scrutinized.

32. P.W.2 Raghvendra has stated that
his sister Lata is married with Dinesh
Uadhayay.
On
the
occasion
of
Rakshabandhan he had come to his sister
on 10.08.1995 for tying Rakhi, his friend
Virendra son of Ram Gopal was also with
him. On the request of his sister and
brother-in-law he stayed there and he has
narrated the story about the incident in his
deposition. In his cross-examination he has
stated that one and half to quarter to two
hours of the incident S.O. Matsaina came to
the place of incident and he remained there
about one and half to quarter to two hours.
His statement that, on coming to the place
of incident S.O. Matsaina stayed one and
half to quarter to two hours, finds support
from the statement of informant P.W.1
Dinesh Upadhyay as he has stated on page
18 of the paper book that, when, S.O.
Matsaina came on the day of incident then
he stayed one and half to two hours. He has
also stated about conducting the inquest
memo. He has stated that his statement was
recorded by the police after 22-23 days of
the incident which was recorded at the
house of the informant Dinesh Upadhayay.
A police constable had gone to his village
68 INDIAN LAW REPORTS ALLAHABAD SERIES
to call him. In the period of 22-23 days of
the incident no police personnel had gone
to him to call for recording his statement.
He has also stated that he himself did not
tell about the incident to the S.O. Matsaina,
which he had witnessed because he did not
ask him. P.W.4 Virendra Singh is the first
investigating officer, who has stated that he
had prepared the inquest memo and other
relevant papers like letter to R.I., challan
lash, letter to C.M.O. In cross-examination
he has clearly stated that after registration
of FIR he did not record the statement of
scribe of FIR and informant. He did not
record statement of Panch. He also did not
think it necessary to inquire from informant
and other witnesses and preparing the spot
map. Since the Ist investigating officer did
not even record the statement of the
informant and prepared spot map in such a
situation recording of statement of this
witness after 22-23 days of the incident
who is resident of other village, will not
adversely affect his veracity. From the
cross-examination nothing has been elicited
so that his presence on the spot and
witnessing the incident can be doubted.
Prompt FIR disclosing him as eye-witness
of incident has been lodged which also
fortify his presence at the time of incident.
Considering whole statement of P.W.-2
Raghvendra, it appears that his presence is
natural and he is a witness of the incident.
He is giving cogent and credible evidence
about the incident and his evidence is
worthy of trust.

33. In view of the above discussions,
we find that evidence of the witness has a
ring of truth to it, is cogent, credible and
trustworthy.

34. On the basis of the above
discussions, it is established that the
deceased Manish had worked in election
for the winning candidate of Pradhan and
accused Mahadev had also contested the
election but he lost the election. On account
of defeat in the election he was bearing
enmity with the deceased. Appellant Indra
Pal is brother of the accused Mahadev (died
during pendency of appeal). Before the
incident Mahadev had shifted his family
and goods to somewhere else but Mahadev
and appellant Indra Pal used to visit his
house.