# Raj Narain (died) v. State of U.P - **Citation:** (2026) 4 ILRA 76 - **Court:** High Court of Judicature at Allahabad - **Decided:** 2026-04-20 - **Case number:** Criminal Appeal No. 666 of 1986 - **Bench:** Rajnish Kumar, Zafeer Ahmad - **Source:** https://unisonlegal.in/judgment/allahabad-high-court/raj-narain-died-v-state-of-u-p-54709 - **Pages:** 21 ## Text _Characters 0–39,839 of 70,342. This is a partial read: ask again with offset=39839 for what follows._ 76 INDIAN LAW REPORTS ALLAHABAD SERIES 83. In view of the foregoing discussion and upon a comprehensive re-appreciation of the entire evidence on record, this Court finds that the prosecution has successfully established the formation of an unlawful assembly and the participation of the accused persons therein. The involvement of the accused in the occurrence stands proved beyond reasonable doubt, and the findings of the learned Trial Court to that extent call for no interference. 84. Accordingly, all the appeals are partly allowed, the conviction of the accused-appellants (A1, A3, A4, A7, A8, A11, A12) under Sections 302 read with Section 149 I.P.C.; Section 147 I.P.C.; Section 325 read with Section 149 I.P.C.; and Section 323 read with 149 I.P.C. is affirmed. The conviction of accused A1 (Ram Pratap) under Section 148 I.P.C. is also affirmed. However, for the reasons recorded hereinabove, the prosecution has failed to establish the charge under Section 201 read with Section 149 I.P.C. beyond reasonable doubt. The conviction of the accusedappellants (A1, A3, A4, A7, A8, A11, A12) under the said provision is, therefore, set aside. 85. Insofar as accused A3 (Rakesh Kumar) is concerned, having been found to be a juvenile on the date of occurrence and having already undergone a period of incarceration, it is directed that the period already undergone by him shall be treated as sufficient. 86. Accused-appellants A1(Ram Pratap) , A4 (Ramapati Misra) , A7 (Mithilesh Kumar), A8 (Dhirendra Kumar) , A11 (Radhey Shyam) and A12 (Radhey Mohan) are on bail. They shall surrender within 15 days from today before the court concerned and shall be sent to jail to serve out the sentence imposed upon them, failing which the concerned court shall take appropriate action in this regard. The bail bond is cancelled ans sureties are discharged. 87. Let a copy of this judgment, along with the trial court record, be transmitted forthwith and in any case within one week from today to the court concerned for necessary compliance. ---------- (2026) 4 ILRA 76 APPELLATE JURISDICTION CRIMINAL SIDE DATED: LUCKNOW 20.04.2026 BEFORE THE HON'BLE RAJNISH KUMAR, J. THE HON'BLE ZAFEER AHMAD, J. Criminal Appeal No. 666 of 1986 Raj Narain (died) ...Appellants Versus State of U.P. ...Respondent Issue for consideration Matter pertains to legality of conviction order in case motive is proved. Headnotes 4 All. Raj Narain (died) Vs. State of U.P. 77 Appellants had come prepared with arms and instrument for cutting and changing course of water -cut the water of deceased and opened towards them - after committing crime fled away from the spot- opened fire on the deceased-sustained injuries and died- motive for the crime stands proved- crime has been committed in furtherance of the common intention. Appeal dismissed. (E-9) Case Law Cited 1. Pandurang and others Vs. State of Hyderabad; AIR 1955 SC 216 (Vol. 42, C.N. 37) 2. Babu Alias Balasubramaniam and Another Vs. State of Tamil Nadu; (2013) 8 SCC 60. 3. Parshuram Singh Vs. State of Bihar; AIR Online 2002 SC 189 4. State of Uttar Pradesh Vs. Farid Khan; 2004 AIR SCW 5746 5. Vaijayanti Vs. State of Maharashtra; AIR Online 2005 SC 29 6. Nagaraja Vs. State of Karnataka; AIR 2009 SC 1522 7. Anand Mohan Vs. State of Bihar; 2013 AIR SCW 2613 8. Garib Singh and others Vs. The State of Punjab; 1972 Cri. L.J. 1286 9. Jainul Haque Vs. State of Bihar; AIR 1974 SC 45 10. Vijai @ Babban Vs. State of U.P.; Neutral Citation No.2025:AHC:134249-DB (Criminal Appeal No. 2977 of 1984, decided on 08.08.2025). 11. State of Bihar; AIR Online 2002 SC 189 12. State of Uttar Pradesh Vs. Farid Khan; 2004 AIR SCW 5746 13. Vaijayanti Vs. State of Maharashtra; AIR Online 2005 SC 29 14. Nagaraja Vs. State of Karnataka; AIR 2009 SC 1522 15. Anand Mohan Vs. State of Bihar; 2013 AIR SCW 2613 16. Garib Singh and others Vs. The State of Punjab; 1972 Cri. L.J. 1286 17. Jainul Haque Vs. State of Bihar; AIR 1974 SC 45 and Vijai @ Babban Vs. State of U.P.; Neutral Citation No. 2025:AHC:134249-DB (Criminal Appeal No. 2977 of 1984, decided on 08.08.2025). 18. Mahbub Shah v. Emperor; AIR 1945 PC 118 19. Nachhattar Singh Vs. State of Punjab; 1976 S.C.C.(Cri.) Page 182 20. State of Uttar Pradesh Vs. Sudhir Kumar Singh and Others; (2021) 19 SCC 706 21. Mahbub Shah v. Emperor; AIR 1945 PC 118 List of Acts 1. Indian Penal Code, 1860 2. Indian Evidence Act, 1872 3. Code of Criminal Procedure, 1973 4. The General Clauses Act, 1897 List of Keywords Exhortation; motive; Section 34 I.P.C; common intention. Appearances of parties Counsel for Appellant (s) : K.P. Tripathi, M.B. Singh, O.P. Singh, R B S Rathore, Rajendra Prasad Mishra, Rishad Murtaza Counsel for Respondent(s) : Govt. Advocate (Delivered by Hon'ble Rajnish Kumar, J.) (1) The instant criminal appeal under Section 374 (2) of the Code of Criminal Procedure, 1973 (here-in-after referred to as Cr.P.C.) has been filed by the convicts/appellants, Raj Narain, Kamlesh and Rajendra Prasad, assailing the judgment and order dated 03.10.1986 passed by learned Sessions Judge, Pratapgarh in Sessions Trial No. 52 of 1985; State Versus Raj Narain and two others, emanating from Case Crime No. 141 of 1984, under Sections 302 and 504 of the Indian 78 INDIAN LAW REPORTS ALLAHABAD SERIES Penal Code, 1860 (here-in-after referred to as I.P.C.), Police Station Baghrai, District Pratapgarh, by means of which the appellant No.1, Raj Narain (died) has been convicted under Section 302 I.P.C. and the appellant No.2, Kamlesh and the appellant No.3, Rajendra Prasad have been convicted under Section 302 I.P.C. read with Section 34 I.P.C. and they have been sentenced with life imprisonment. FACTS (2) The prosecution case, in brief, is that on 09.06.1984, the complainant, Santosh Kumar Pandey, had submitted a written report (Ext. Ka.1) at police station Baghrai, district Pratapgarh, stating therein that on 09.06.1984, at 08:00 in the morning, watering the field from the drain of orchard of Satya Narain Dwivedi located on west of the house and looking after the water with a spade (फावडा), his uncle, Raj Narain Pandey son of Bechu Ram Pandey armed with single barrel gun and one box cartridge and Kamlesh Kumar Pandey son of Raj Narain Pandey armed with lathi and Rajendra Prasad Pandey son of Sarda Prasad Pandey armed with spade (QkoMk) and lathi came and cut their water course and diverted it towards their field. His father, Sri Jagat Narain Pandey son of late Bechu Ram Pandey prevented them from taking away the water, upon which Kamlesh Kumar Pandey and Rajendra Prasad Pandey exhorted that vkt lkys dks tku ls ekj Mkyks ns[k ysxsa (Today, bastard be killed, they would saw them). On their exhortation, Raj Narain Pandey fired from his gun at his father, which stuck his father on the right side of his chest and his father fell down there and died. During this quarrel, he and his brother-in-law Shri Shiv Prakash Mishra son of Shri Sitla Prasad Mishra resident of Chetaoo-Ka-Poora (Post Kasinpur) police station Holagarh, Allahabad and Kailash Narain Dwivedi son of Shri Badri Prasad Dwivedi, resident of Dubepur, Post Sakardaha ran and reached the spot. By that time, accused Raj Narain Pandey after firing shot, all the three persons fled towards north. On hue and cry, villagers came there but as the accused persons had gun, no one chased them on account of fear. The dead body of his father is lying at the place of occurrence. He gave information and requested that necessary legal action be taken. (3) On the basis of the aforesaid written report (Ext. Ka.1), check F.I.R., bearing Case Crime No. 141 of 1984, under Sections 302 and 504 I.P.C. was prepared and registered on 09.06.1984 at 12:10 P.M. at Police Station Baghrai, District Pratapgarh, by Head Moharrir Rameshwar (P.W.5) against accused Raj Narain, Kamlesh Kumar and Rajendra Prasad, in the presence of S.I. Syed Maqsood Ahmad (P.W.6), who, after taking up the investigation, copying F.I.R., G.D., recording the statement of complainant at the police station, reached the place of occurrence, where he prepared the inquest report of the body of the deceased Jagat Narain Pandey, photo nash, challan lash, letter to Chief Medical Officer, sample of seal, Thereafter, he sealed the dead body of the deceased and sent it to District Hospital, Pratapgarh through Constable Kaji Mohd. Layak and Kamleshwar Chowidar for post-mortem. He recovered blood stained soil and plain soil from the place of occurrence in separate containers and prepared the recovery memo. He also recovered one live cartridge and spade (QkoMk) from the spot and prepared the recovery memos. He also prepared site plan. (4) The postmortem of the dead body of the deceased Jagat Narain Pandey was conducted by Dr. R.B. Pandey (P.W.3) on 10.06.1984 at 12:30 P.M. The doctor found the age of the deceased 4 All. Raj Narain (died) Vs. State of U.P. 79 about 35 years and probable time of death was about 28 hours; the deceased was of strong built; both eyes were closed and rigor mortis passed on in upper limbs but present in the lower limbs. He found following ante-mortem injuries on the body of the deceased Jagat Narain Pandey:- 1. Fire arm injury 11/2 x 11/2 x cavity deep on the Rt. side of chest 11/2 above from Rt. nipple at 1 O'clock position. Margins inverted, charring present. Wound of entry. 2. Fire arm injury 11/2 x 11/2 x cavity deep on right side of the chest. 1" from Rt. nipple at 3.30 O'clock position. Charring present. On internal examination, Dr. R.B. Pandey found five big pallets and one piece of wad from the body of the deceased; 3rd, 4th and 5th ribs of right side were found fractured; right lung was ruptured and cavity containing two litres of blood; 250 C.C. semi-digested food was also found. As per the opinion of Dr. R.B. Pandey, the cause of death was due to shock and haemorrhage due to inflicted fire arm injury. (5) The Investigating Officer, Syed Maqsood Ahmad (P.W.6), after taking the statements of the witnesses and after completion of due investigation, submitted the charge-sheet against the accused persons, Raj Narain, Kamlesh Kumar and Rajendra Prasad, under Sections 302 and 504 I.P.C. on 19.06.1984. (6) The Chief Judicial Magistrate, Pratapgarh, took the cognizance on the charge-sheet on 28.06.1984 and after making compliance of Section 207 Cr.P.C., committed the case to the Court of Sessions by means of order dated 08.05.1985, where the case was registered as Sessions Trial No. 52 of 1985 and on 18.07.1985, accused Kamlesh Kumar Pandey and Rajendra Prasad Pandey were charged for the offence punishable under Section 302 read with Section 34 I.P.C., whereas accused Raj Narain Pandey was charged under Section 302 I.P.C. Accused persons pleaded not guilty and claimed to be tried. (7) In support of its case, the prosecution examined the following six witnesses :- Witness No. Name Description P.W.1 Santosh Kumar Pandey Complainant / son of deceased / eye witness P.W.2 Shiv Prakash Misra Son-in-law of deceased / brother-in-law of complainant / eye witness P.W.3 Dr. R.B. Pandey Conducted the autopsy on the dead body of the deceased and prepared the post-mortem report P.W.4 Kailash Narain Independent eye-witness / Hostile P.W.5 Rameshwar Prepared check F.I.R. and G.D. on the basis of written report 80 INDIAN LAW REPORTS ALLAHABAD SERIES Witness No. Name Description (Constable) submitted by the complainant P.W.6 Syed Maqsood Ahmad Investigating Officer P.W.7 Kamleshwar Chowkidar Filed affidavit that he carried the dead body to District Hospital Pratapgarh (8) Learned Counsel appearing on behalf of the accused persons made an endorsement on the affidavit of P.W.7 that no cross-examination is to be done. (9) The prosecution has produced and proved the following material exhibits :- Exhibit No. Particulars Ext.1 Plain soil; proved by P.W.6 Ext.2 Blood stained soil; proved by P.W.6 Ext.3 Cartridge; proved by P.W.6 Ext.4 Spade; proved by P.W.6 Ext.5 Pellets and wads; proved by P.W.6 Ext.6 Ring, a set of artificial teeth (denture), Janeu, Kanthi, two Rudraksh, Munga; proved by P.W.6 (10) The prosecution has also produced and proved the following documentary evidence :- Exhibit No. Particulars Ext. Ka.1 Written Report Ext. Ka.2 Post-mortem Report Ext. Ka.3 Chik F.I.R. Ext. Ka.4 Copy of G.D. No. 19 Ext. Ka.5 Inquest Report Ext. Ka.6 Photo Nash Ext. Ka.7 Challan Nash Ext. Ka.8 Letter to Chief Medical Officer Ext. Ka.9 Sample of Seal Ext. Ka.10 Site plan 4 All. Raj Narain (died) Vs. State of U.P. 81 Exhibit No. Particulars Ext. Ka.11 Recovery Memo of plain soil Ext. Ka.12 Recovery Memo of blood stained soil Ext. Ka.13 Recovery Memo of one live cartridge 12 bore Ext. Ka.14 Recovery Memo of one spade Ext. Ka.15 Charge-sheet Ext. Ka.16 Application dated 22.11.1985 written by the complainant to Tehsildar, Kunda, requesting to give the details of the name of the persons who irrigated Plot No. 2023 in 1390 F and 1391 F (Rabi). Ext. Ka.17 The report of the Tehsildar, Kunda on the aforesaid application dated 22.11.1985, indicating that in Rabi 1390 F and 1391 F (as a whole), Plot No. 2023 was irrigated by accused Raj Narain son of Bechu Ram. Ext. Ka.18 Signature of the Tehsildar Ext. Ka.19 Certified copy of 'Will' executed by one Smt. Mahdei widow of Mata Bheekh Misra, resident of Dubepur dated 02.09.1981 Ext. Ka.20 C.H. Form No. 23 (11) After completion of the oral evidence, the statements of the accused/appellants under Section 313 of Cr.P.C. were recorded, in which they stated that they were innocent and have been falsely implicated on account of enmity. Accused Raj Narain had also stated that he has no field at the place of occurrence. In connection with the murder of the son of Babu Lal, namely, Guruddin, help was sought, which was not made, on account of which he has been falsely implicated. He further stated that neither he had a licence of gun nor had a gun nor has a gun. The character of Jagat Narain was bad. Some unknown person killed him at night and they have falsely been implicated. Accused Kamlesh Kumar Pandey had also stated that in the case of murder of the son of Babu Lal, namely, Guruddin, help and money were sought, which were not made, on account of which he has falsely been implicated. He also stated that there is no field at the place of occurrence. The character of Jagat Narain was bad. Some unknown person killed him at night and when they went for call of nature in the morning, Jagat Narain Pandey fell down and on raising alarm by the persons, they have falsely been implicated. 82 INDIAN LAW REPORTS ALLAHABAD SERIES Accused Rajendra Prasad Pandey had also stated that he has a relation with Babu Lal and in the matter of murder of his son Guruddin, he was frequently doing pairvi, which was objected by Santosh Pandey but he was doing pairvi, on account of which, he has falsely been implicated. (12) The defense has examined Prayag Dutt, Lekhpal as D.W.1 and also produced following defense exhibits :- Exhibit No. Particulars Ext. Kha.1 Application of Kailash Narain Ext. Kha.2 Affidavit of Kailash Narain Ext. Kha.3 Vakalatnama Ext. Kha.4 Affidavit of Purshottam Prasad filed in High Court (13) The learned Trial Court, after hearing learned Counsel for the parties, by means of impugned judgment and order dated 03.10.1986, convicted the accused/ appellant Raj Narain for the offence under Section 302 I.P.C. simpliciter and accused Kamlesh Kumar and Rajendra Prasad under Section 302 I.P.C. read with Section 34 I.P.C. and sentenced them to undergo life imprisonment. (14) Being aggrieved, the accused/appellants have come up before this Court with the present appeal. (15) It is pertinent to mention that during pendency of the instant appeal, convict/appellant no.1-Raj Narain died and as such, the instant appeal filed on his behalf stood abated by means of order dated 18.11.2023. Hence the instant appeal survives only on behalf of convict/appellant no.2Kamlesh and convict/ appellant No. 3-Rajendra Prasad. ARGUMENTS (16) Heard, Shri R.B.S. Rathore, learned Counsel for the appellant no.2, Shri Rajendra Prasad Mishra, learned Counsel for the appellant no.3 and Shri Umesh Verma, learned A.G.A. for the State. (17) Learned Counsel appearing on behalf of the convict/appellant no.2 submitted that appellant No.2 has wrongly and illegally been convicted by means of the impugned judgment and order. He submitted that none has seen the occurrence and the investigation has also not been conducted in proper manner and the Investigating Officer had not made any effort to recover the gun used in the crime. Thus, he submitted that the investigation was tainted. Even otherwise, he submitted that the F.I.R. is ante-time because semi-digested food was found in the post- mortem report, therefore, the alleged occurrence could not have been of 08:00 in the morning and the deceased may have been murdered any time in the night but on account of enmity, the appellants have been implicated in the case and there is no F.S.L. report. He further submitted that there was only one gun fire as stated by the P.W.-1, whereas the doctor has given opinion that there may have 4 All. Raj Narain (died) Vs. State of U.P. 83 been two fires. He further submitted that the appellant No.1 has been shown the main assailant but all ingredients of crime could not be proved and the evidence on record does not show that the alleged crime was committed by the common intention of all and there was no involvement of appellant No.2 in the crime, therefore, he could not have been convicted. (18) On the basis of above, learned Counsel for the appellant no.2 submitted that the impugned judgment and order is not sustainable in the eyes of law and the same is liable to be set- aside and the appellant no.2 is liable to be acquitted. He relied upon Pandurang and others Vs. State of Hyderabad; AIR 1955 SC 216 (Vol. 42, C.N. 37) and Babu Alias Balasubramaniam and Another Vs. State of Tamil Nadu; (2013) 8 SCC 60. (19) Sri Rajendra Prasad Mishra, learned counsel for the appellant No.3 submitted that the F.I.R. is ante-time because semi-digested food was found in the post mortem report and it is not possible that the deceased would have taken food at 06:00 in the morning. Even otherwise, he submitted that in the village, the food is not taken at such an early hour. He further submitted that it is not disputed that two injuries are not possible from one fire but the doctor has opined that the injuries may be of two fires and the fire has been said to have been made from 10 steps, whereas charring has been found, which is not possible from such a distance and is possible only in the case of firing from three to four feet, therefore, the medical report does not support the prosecution case. He further submitted that there was no meeting of mind between the appellants because they live separately, therefore, the conviction with the aid of Section 34 I.P.C. is not sustainable. He also submitted that admittedly there was no enmity between the parties, therefore, the question of murder of the deceased by the appellants does not arise. He also submitted that the P.W.-2 is a chance witness, therefore, unless his presence on the spot could have been proved by cogent evidence, his testimony is not reliable. He also submitted that there was no overt act of the appellant No.3 and it was a case of sudden fight, therefore, Section 34 I.P.C. will not apply. Thus, Counsel for the appellant no.3 submitted that since there was no prior meeting of mind, therefore, it can not be said that the crime has been committed with common intention of all and the appellant no.3 has been falsely implicated. Even otherwise, his submission is that it may have been a case of sudden fight, in case the Court comes to the conclusion that the appellant No.3 was involved in the occurrence. He also submitted that statement under Section 313 Cr.P.C. was recorded on proforma under old Cr.P.C., therefore, the trial itself vitiated and judgment passed in pursuance thereof is liable to be set aside. He relied on Parshuram Singh Vs. State of Bihar; AIR Online 2002 SC 189, State of Uttar Pradesh Vs. Farid Khan; 2004 AIR SCW 5746, Vaijayanti Vs. State of Maharashtra; AIR Online 2005 SC 29, Nagaraja Vs. State of Karnataka; AIR 2009 SC 1522, Anand Mohan Vs. State of Bihar; 2013 AIR SCW 2613, Garib Singh and others Vs. The State of Punjab; 1972 Cri. L.J. 1286, Jainul Haque Vs. State of Bihar; AIR 1974 SC 45 and Vijai @ Babban Vs. State of U.P.; Neutral Citation No. 2025:AHC:134249-DB (Criminal Appeal No. 2977 of 1984, decided on 08.08.2025). (20) Per contra, Shri Umesh Verma, learned A.G.A. for the State submitted that impugned judgment and order has rightly been passed in accordance with law and there is no illegality or infirmity in the impugned order. He further submitted that the conviction of the appellant Nos.2 and 3 with the aid of Section 34 I.P.C. has rightly been made in accordance with law because the appellants had committed the crime with common intention and in furtherance thereof, which is 84 INDIAN LAW REPORTS ALLAHABAD SERIES apparent from the fact that they came together on the spot armed with weapons and deliberately cut water of the field of the deceased and diverted it towards their field and on being confronted, the appellant Nos.2 and 3 exhorted to kill the deceased and in pursuance thereof, the appellant No.1 killed the deceased by gun, which he was carrying and, thereafter, all ran away from the scene of occurrence. He further submitted that the intention remains locked in the mind of the accused persons and it can be perceived only with previous conduct, conduct at the time of incident and subsequent conduct and the aforesaid conduct of the appellants clearly indicates their common intention and the crime in furtherance thereof. He further submitted that though on the suggestion of the defence, the doctor has stated that two fires may be possible but no evidence in this regard has been adduced, therefore, the appellants are not entitled for any benefit of it. He further submitted that even in the statement under Section 313 Cr.P.C., nothing substantive could be disclosed or adduced in evidence. He further submitted that the defence had tried to create a doubt on the incident making question regarding illicit relation of the deceased, which has been specifically denied by the P.W.-1. He further submitted that it is a constant case of the prosecution that the appellant No.1 had come with a gun and a bandolier (belt of cartridges) but there is no cross-examination on the said point, therefore, non recovery of gun is not fatal to the case of prosecution. He further submitted that the prosecution case, as disclosed in the first information report, has been proved by the post mortem report also, which has been proved by the doctor and the evidence adduced during the trial, which is covered under the Clause 3 of Section 300 I.P.C. and proved by the evidence in accordance with Section 137 of the Indian Evidence Act, 1872 and nothing could be extracted contrary to the manner of assault proved by the prosecution, therefore, even if there may be any negligence in the investigation, it is of no benefit to the appellants. He also submitted that merely by recording statement on the proforma under old Cr.P.C., the trial cannot be said to be vitiated. Thus, learned A.G.A. submitted that the impugned judgment and order has rightly been passed in accordance with law and there is no illegality or error in it, which may call for any interference by this Court. (21) He relied on Leela Ram (Dead) Through Duli Chand Vs. State of Haryana and Another; 2000 SCC (Cri) 222, State of Madhya Pradesh Vs. Ramesh and Another; (2011) 2 SCC (Cri) 493, Shivaji Sahebrao Bobade and Another Vs. State of Maharashtra; AIR 1973 SC 2622, Aejaz Ahmad Sheikh Vs. State of U.P. and Another; 2025(3) JIC 840 (SC), Ramesh Singh Alias Photti Vs. State of A.P.; 2004 SCC (Cri) Supp 70, Patai @ Krishna Kumar Vs. State of U.P.; 2010(2) JIC 286 (SC) and Virendra Singh Vs. State of Madhya Pradesh; 2011 Cri. L.J. 952. (22) We have considered the submissions of learned counsel for the parties and perused the records. (23) The prosecution case, as emerged from the first information report, indicates that on 09.06.1984 at 08:00 in the morning, the father of the complainant was watering the field from drainage of orchard of Satya Narain Tiwari in the west of house and looking after the water with a spade, when his uncle Raj Narain Pandey armed with single barrel gun and a bandolier and Kamlesh Kumar Pandey having lathi and Rajendra Prasad having spade and lathi came on the spot and cut the water course and diverted it towards their field, which shows that the convicted appellants have come on the spot armed with weapons and cut the course of water to the field of the complainant and diverted it to their field and when his father Jagat Narain Pandey confronted them 4 All. Raj Narain (died) Vs. State of U.P. 85 from taking away the water, the appellant No.2, Kamlesh Kumar Pandey and the appellant No.3, Rajendra Prasad exhorted आज साले को जान से मार डालो देख लेंगे and on their exhortation, Raj Narain Pandey fired from his gun at his father, which hit his father on the right side of his chest and he fell down and died. During this quarrel, the complainant, his brother-in-law, Shiv Prakash Mishra and Kailash Narain Dwivedi ran and reached on the spot but by that time, after firing shot, all the three persons fled away towards the north. In view of above, the conduct prior to the occurrence, at the time of occurrence and subsequent conduct of the appellants shows that they had come on spot armed with weapons and prepared to cut the course of water to the field of the complainant and to divert it to their field and on being confronted, the appellant Nos.2 and 3 exhorted to kill, on which, the appellant No.1 killed, thereafter, when the complainant and other witnesses ran and reached near the deceased, the accused persons fled away. (24) The complainant appeared as P.W.-1, who proved the prosecution case, as disclosed in the F.I.R. He also stated that alongwith him, his brother-in-law, Shiv Prakash Mishra was also present on the spot. He also stated that Kailash Narain Dwivedi has also seen the incident but he has been win over and not ready to give the impartial evidence. He proved the written report as Ex. Ka-1 and also stated that his statement was recorded by the Inspector at the police station and the Inspector visited the place of occurrence in his presence. In the cross-examination, nothing could be extracted, which may created any doubt on the testimony of P.W.-1 given in the examination-inchief. The cross-examination also indicates that no cross-examination has been made in regard to the presence of the accused appellants, about the manner in which the crime was committed as well as exhortation by the appellant Nos.2 and 3, in pursuance of which, the appellant No.1 had fired from his gun and killed the deceased. (25) The brother-in-law of the complainant, Shiv Prakash Mishra appeared as P.W.-2, who is also an eye witness and proved the prosecution case. The cross-examination made from him also could not extract anything, which may create any doubt about his testimony, rather he reiterated the evidence given in the examination-in-chief and the fact that the appellant Nos.2 and 3, Kamlesh and Rajendra had exhorted. He also stated that he had come a day before to his in-laws' house and accompanied them to field on the said day. His presence on spot has been proved by P.W.-1 and P.W.-4, an independent eye witness, therefore, his evidence cannot be discarded on the ground of chance witness. Thus, the prosecution case has been proved by two eye witnesses, who appeared as P.W.-1 and P.W.-2. (26) The post mortem of the deceased was conducted on the next day i.e. on 10.06.1984 at 12:30 PM by Dr. R.B. Pandey, who appeared as P.W.-3 and proved the post mortem report as Ex. Ka-2 as well as the injuries recorded therein. He also stated that the deceased could have died on 09.06.1984 at 08:00 in the morning. He also disclosed that the cause of death was shock and hemorrhage due to inflicted fire arm injuries. He also stated that ante-mortem injuries were sufficient for death in normal course. In the cross-examination, he stated that 250 C.C. semidigested food was found in the stomach of the deceased, therefore, he would have eaten about two or two and half hours before the death. He also disclosed that the firing would have been done from a distance of 3 - 4 feet and he is in agreement with the opinion of Dr. Modi. He also stated that it is possible that the injuries may have been caused by one or two fires and there may be difference of 6 - 7 hours in the time of death on either side. On the written request, he was further cross- 86 INDIAN LAW REPORTS ALLAHABAD SERIES examined by the defence, in which, he stated that the injury Nos.1 and 2 are possible to have come by one fire. Thus, the post-mortem and the injuries have also supported the prosecution case except for the doubt, which has been tried to be created as to how two injuries could have been caused by one fire and the doctor has opined that both the injuries could have been caused by one fire, though he stated there may have been two fires, however, it was merely an opinion on suggestion and no evidence has been adduced in this regard, therefore, the appellants are not entitled for any benefit of it. However, time of death and duration, after which the post-mortem was done, remained unrebutted. (27) Kailash Narain Dwivedi has been shown as an eye witness in the F.I.R. He filed an application dated 09.07.1985 alongwith an affidavit stating therein that he was not present on the place of spot and had gone to Agra near the son of his brother in connection with a job and he does not want to give false evidence to implicate an innocent person, thus, he may be relieved from giving evidence. However, he appeared during trial as P.W.-4. In the examination-in-chief, he stated that at the time of murder of Jagat Narain, he was at home and he has not seen the incident and the Inspector had not taken his statement. He was declared hostile and cross-examined by the prosecution. In the cross-examination, he stated that it is wrong to say that he has collided with the accused persons and does not want to state the correct things. He further stated that upon hearing hue and cry, he reached on the spot and at that time 2 - 3 hours have been passed on opening of the day, when he reached there, where Jagat Narain was lying on the east of the drainage. Thus, he supported the time of incident at about 08:00 in the morning. He also stated that when he reached on the spot, son of Jagat Narain i.e. Santosh Kumar Pandey and brother-in-law of Santosh i.e. Shiv Prakash Mishra and other villagers were present and on reaching the spot, he asked as to what has happened. Then Santosh and his brother-in-law informed that the accused persons, who are present in the Court, have killed the Jagat Narain. He also stated that he had seen two persons fleeing away in east from the spot, where Jagat Narain was lying, out of which, one was having gun in his hand and other was having lathi. He also stated that he was told that on account of change of course of water, the quarrel took place. He also stated that he had seen water flowing in the drainage. He also stated that the Inspector had come at about 02:00 and prepared the inquest, in which, he is a witness. He also proved his signatures on the inquest. Thus, his presence on the spot can not be doubted and he supported the prosecution case. (28) The P.W.-4 also stated that it is true that he is being pressurized in the village as to why Raj Narain would be got hanged by giving the evidence because the deceased and Raj Narain were real brothers. He also stated that it is true that on account of it, he is not giving any evidence against Raj Narain. In the cross-examination by the defence, he accepted his signatures on paper Nos. 6 Kha, 7 Kha and 8 Kha and that they were made in the premises of Court. However, he stated that he had made signatures without reading the affidavit because he is illiterate. He further stated that the accused Kamlesh and father-in-law of his sister were with him when he had made the said signatures. He also stated that they had brought him for the affidavit and the said affidavit was neither read before him nor typed before him nor it was told to him in the village that the affidavit is to be given in regard to seeing or not seeing the incident and he had also not asked before proceeding from the village as to what is to be written in the affidavit. He also stated that he does not dispute that his nephew is residing in Agra and he had gone to Agra in search of a job but he specifically stated that he had not got written any paper Nos.7 Kha and 8 Kha mentioning that he 4 All. Raj Narain (died) Vs. State of U.P. 87 had not seen any incident and he was not present on the spot, while truth is that the aforesaid persons stated that give the evidence because who knows that he was in Agra or not and it has wrongly been written and he was only told that he would not have to give any evidence and he had come to know it on the date of affidavit. He denied the suggestion to have given the affidavit i.e. paper No. 7 Kha correctly and he is deviating from the affidavit under the pressure of the brotherin-law of the Santosh and police. (29) The aforesaid evidence of P.W.-4 indicates that though he has been declared hostile and may have not seen the incident but he has proved the place of occurrence and the persons, who were present on the spot at the time of occurrence. He has also proved the presence of P.W.-1 and P.W.-2 and also the evidence given by them, which was told to him upon his reaching on the spot. He has also proved that at least two persons were fleeing away from the spot, out of which, one was having a gun and another lathi, which were with the appellants. The evidence of P.W.-4 also shows the conduct of the appellants subsequent to the incident, i.e. running away from the place of incident and particularly that of the appellant No.2, Kamlesh, who got a false affidavit of P.W.-2 prepared in favour of the appellants and to show that he was neither present in the village nor on the place of occurrence, whereas the P.W.-4 has discarded the statements made in the affidavit, therefore, he had not gone to Agra on the date of incident. It also shows that the false affidavit was got prepared by misleading the P.W.-4 on the ground that he would not have to come to the Court to adduce the evidence, so that the correct position may not come before Court. The swearing of affidavit by P.W.-4 with a view that he may not have to appear in evidence cannot be disbelieved, firstly, because nothing could be extracted from him in the cross-examination and, secondly, it is a natural human conduct that normally the persons, who have seen the incident, avoid to give any evidence in Court of law because they remain afraid of the questions, which may be asked in the cross-examination and they or their family may have any difficulty in future. (30) The main thrust of the arguments of learned counsel for the appellants was that there was no meeting of mind of the appellant Nos.1, 2 and 3, therefore, their conviction has wrongly and illegally been made. It was also argued that the charge against the appellant No.1 was made under Section 302 I.P.C., whereas charge against the appellant Nos.2 and 3 was made under Section 302 I.P.C. read with Section 34 I.P.C., therefore, since the charge against the appellant No.1 was not made under Section 302 I.P.C. read with Section 34 I.P.C., therefore, the appellant Nos.2 and 3 could not have been convicted with the appellant No.1 with the aid of Section 34 I.P.C. on the basis of constructive liability. (31) Section 34 of I.P.C. provides that when a criminal act is done by several persons with a pre-meditated mind of committing crime, each of them is liable for the said criminal act in the same manner as if it was done by him alone. Section 34 I.P.C. is extracted here-in-below:- "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." (32) The Hon'ble Supreme Court, in the case of Ramesh Singh @ Photti Vs. State of A.P. (Supra), held that essence of the liability under Section 34 I.P.C. is to be found in the existence of a 88 INDIAN LAW REPORTS ALLAHABAD SERIES common intention connecting the accused leading to the doing of a criminal act in furtherance of such intention and 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. It has further been held in this regard that an illegal omission on the part of such accused can indicate the sharing of common intention. Thus, the totality of circumstances is to be taken into consideration in each case. The relevant paragraph 12 is extracted here-in-below:- "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.