# Sri Mazhar Husain & Ors. (In jail) v. State of U.P - **Citation:** (2019) 2 ILRA 151 - **Court:** High Court of Judicature at Allahabad - **Decided:** 2019-07-09 - **Case number:** Criminal Appeal No. 4288 of 2019 - **Bench:** Sudhir Agarwal, Rajendra Kumar-Iv - **Source:** https://unisonlegal.in/judgment/allahabad-high-court/sri-mazhar-husain-ors-in-jail-v-state-of-u-p-44602 - **Pages:** 17 ## Headnote A. Indian Penal Code, 1860 - Section 302 read with Section 34 I.P.C- Section 25 of Arms Act,1959 -Criminal Appeal filed by accused-appellants under Section 374 Cr.P.C - enmity between Informant and his cousin and others in respect of a land - statement under Section 313 Cr.P.C. - section 207 Cr.P.C - testimonies of witnesses closely related to deceased cannot be discarded - where direct evidence is worthy, it can be believed, then motive does not carry much weight - sentenced to life imprisonment. (Para 4,15,33 & 37) B. Indian Evidence Act, 1872 - Section 134 -number of witness - Law is well-settled that as a general rule, Court can and may act on the testimony of a single witness provided he/she is wholly reliable - if there are doubts about the testimony, Court will insist on corroboration. It is not the numbers, the quantity, but the quality that is material. Time-honoured principle is that evidence has to be weighed and not counted. (Para 39 & 40) C. Indian Penal Code, 1860 - whether Section 34 read with Section 302 IPC is attracted in the case in hand in respect of appellants - A Constitution Bench has dealt with Section 34 IPC and held that Section 34 deals with cases of constructive criminal liability provides that if a criminal act is done by several persons in furtherance of the common intention of all, each of such person is liable for the act in the same manner as if it were done by him alone. (Para 45 & 65) Criminal Appeal dismissed (E-7) List of Cases Cited: - ## Text _Characters 0–39,761 of 53,658. This is a partial read: ask again with offset=39761 for what follows._ 2 All. Sri Mazhar Husain & Ors. Vs State of U.P. 151 (2019)10ILR A 151 APPELLATE JURISDICTION CRIMINAL SIDE DATED: ALLAHABAD 09.07.2019 BEFORE THE HON'BLE SUDHIR AGARWAL, J. THE HON'BLE RAJENDRA KUMAR-IV, J. Criminal Appeal No. 4288 of 2019 Sri Mazhar Husain & Ors. ...Appellants (In jail) Versus State of U.P. ...Respondent Counsel for the Appellants: Sri Ahmad Saeed, Sri Ajay Yadav, Sri Alok Kumar Yadav, Sri Ambrish Kumar, Sri Anil Raghav, Sri Braham Singh, From Jail, Sri J.S. Sengar, Sri Ramesh Singh, Sri S.K. Singh, Sri S.P.S. Raghav, Sri Sanjai Kumar Singh, Sri Shamsher Singh, Sri Syed Mushfiq Ali, Sri V.M. Zaidi. Counsel for the Respondent: D.G.A., A.G.A., Smt. Uma Srivastava, Sri V.K. Srivastava, Sri Syed Ali Murtaza (A.G.A) A. Indian Penal Code, 1860 - Section 302 read with Section 34 I.P.C- Section 25 of Arms Act,1959 -Criminal Appeal filed by accused-appellants under Section 374 Cr.P.C - enmity between Informant and his cousin and others in respect of a land - statement under Section 313 Cr.P.C. - section 207 Cr.P.C - testimonies of witnesses closely related to deceased cannot be discarded - where direct evidence is worthy, it can be believed, then motive does not carry much weight - sentenced to life imprisonment. (Para 4,15,33 & 37) B. Indian Evidence Act, 1872 - Section 134 -number of witness - Law is well-settled that as a general rule, Court can and may act on the testimony of a single witness provided he/she is wholly reliable - if there are doubts about the testimony, Court will insist on corroboration. It is not the numbers, the quantity, but the quality that is material. Time-honoured principle is that evidence has to be weighed and not counted. (Para 39 & 40) C. Indian Penal Code, 1860 - whether Section 34 read with Section 302 IPC is attracted in the case in hand in respect of appellants - A Constitution Bench has dealt with Section 34 IPC and held that Section 34 deals with cases of constructive criminal liability provides that if a criminal act is done by several persons in furtherance of the common intention of all, each of such person is liable for the act in the same manner as if it were done by him alone. (Para 45 & 65) Criminal Appeal dismissed (E-7) List of Cases Cited: - 1. Ganga Bhawani Vs Rayapati Venkat Reddy & ors. (2013) 15 SCC 298 2. Bhagalool Lodh & anr. Vs St. of U.P. AIR 2011 SC 2292 3. Dhari & ors. Vs St. of U.P. AIR 2013 SC 308) 4. Sampath Kumar Vs Insp. of Police Krishnagiri (2012) 4 SCC 124 5. Smt. Shamim Vs St. of (NCT of Delhi) Criminal Appeal No. 56 of 2018 6. Lokesh Shivakumar Vs St. of Kar. (2012) 3 SCC 196 7. Namdeo Vs St. of Mah. (2007) 14 SCC 150 8. Kunju @ Balachandran Vs St. of T.N. AIR 2008 SC 1381 9. Jagdish Prasad Vs St. of M.P. AIR 1994 SC 1251 10. Vadivelu Thevar Vs St. of Madras AIR 1957 SC 614 152 INDIAN LAW REPORTS ALLAHABAD SERIES 11. Yakub Ismailbhai Patel Vs St. of Gunj. reported (2004) 12 SCC 229 12. St. of Har. v. Inder Singh & ors. (2002) 9 SCC 537 13. Queen Vs Gora Chand (1866) 5 Suth WR 45 (FB) 14. Krishna Govind Patil Vs St. of Mah. AIR 1963 SC 1413 15. Gurdatta Mal Vs St. of Punj. AIR 1965 SC 257 = (1965) 1 Cri LJ 242 (SC) 16. Shankarlal Kachrabhai & ors. Vs St. of Guj. AIR 1965 SC 1260 17. Mahbub Shah Vs King-Emperor L.R. 72 I.A. 148 18. Barendra Kumar Ghosh Vs Emperor (1924) I.L.R. 52 Cal. 197 19. Hethubha alias Jithuba Madhuba & ors. Vs St. of Guj. AIR 1970 SC 1266 20. Jai Bhagwan & ors. Vs St. of Har. AIR 1999 SC 1083 21. Harjit Singh & anr. Vs St. of Punj. (2002) 6 SCC 739 22. Dani Singh & ors. Vs St. of Bihar (2004) 13 SCC 203 23. Surendra Chauhan Vs St. of M.P. AIR 2000 SC 1436 24. Nand Kishore Vs St. of M.P. (2011) 12 SCC 120 25. Shyamal Ghosh Vs St. of W.B. 2012(7) SCC 646 26. Barendra Kumar Ghosh Vs King Emperor (1924-25) 52 IC 40 27. Dharnidhar & Ors. Vs St. of U.P. & ors. (2010) 7 SCC 759 28. Ramesh Singh alias Photti Vs St. of A.P. (2004) 11 SCC 305 29. Mohan Singh & Vs St. of Punj. AIR 1963 SC 174 30. Balu & ors. Vs St. (U.T. of Pondicherry) (2016) 15 SCC 471 31. Vijendra Singh & ors. Vs St. of U.P. (2017) 11 SCC 129 32. Sumer Singh Vs Surajbhan Singh & ors. (2014) 7 SCC 323 33. Sham Sunder Vs Puran (1990) 4 SCC 731 34. M.P. Vs Saleem (2005) 5 SCC 554 35. Ravji Vs St. of Raj. (1996) 2 SCC 175 (Delivered by Hon'ble Rajendra KumarIV, J.) 1. This Criminal Appeal under Section 374 Cr.P.C. has been filed by accusedappellants Mazhar Husain, Zafar Husain and Azhar Husain against the judgment and order dated 12.05.2000 passed by Sri Syed Nazim Husain Zaidi, First Additional District and Sessions Judge, Kanpur Dehat in Session Trial No. 296 of 1998, convicting appellant-1 Mazhar Husain under Section 302 I.P.C. and sentencing him to undergo life imprisonment with a fine of Rs. 10,000/-. In case of default in payment of fine, he has to undergo one year's further imprisonment. Accusedappellants Zafar Husain and Azhar Husain were convicted under Section 302 read with Section 34 I.P.C. and sentenced to life imprisonment and a fine of Rs. 5,000/- each. In case of default in payment of fine, they have to undergo further six months' imprisonment. 2. This appeal survives only in respect of appellants-1 and 2 inasmuch appellant-3, Azhar Husain, having died, appeal in respect of him stood abated as evident from order dated 19.12.2017. 3. Factual matrix of the case as appearing from First Information Report 2 All. Sri Mazhar Husain & Ors. Vs State of U.P. 153 (hereinafter referred to as "FIR") as well as material available on record may be stated as followed. 4. A written report (EX.Ka-1) dated 26.05.1998 was presented at Police Station Rajpur, Sub-Division Sikandara, District Kanpur Dehat at 9.39 PM the same day by PW-1 Sajjad Husain, alleging that there existed enmity between Informant and his cousin Mazhar Husain and others in respect of a land. On the fateful day, i.e., 26.05.1998 accusedappellant Mazhar Husain went to the disputed field along with Tractor of Thakur of Silhaira with intention to plough the field. He was accompanied with his brothers Zafar and Azhar. Shabbir Husain, father of Informant, PW1, was going by cycle to the field for bringing straw. Apprehending that Informant's father might not indulge in altercation with accused on the issue of ploughing of the field, Informant and his brother, Mohd. Farhan, proceeded towards the field. When reached near Puliya (small bridge), they noticed that accused-appellants were hurling abuses on Informant's father. At some distance Ranu, Informants' Bhanja (sister's sons) was also standing and some people were engaged in work in nearby fields. At about 6.00 PM Azhar and Zafar exhorted Mazhar and provoked him to kill Informant's father saying that let the case/dispute be finished that day. In the meantime Mazhar took out countrymade pistol from his right Phent (upper portion of lower or Dhoti which is tied in waist) and opened two fire at Informant's father. Informant and others ran towards his father who fell down there. Tractor Driver left the Tractor and fled away. Seeing the Informant and others approaching, accused-persons fled sitting in Tractor. On reaching nearer the accused Mazhar tried to load cartridges in the countrymade pistol held in his hand but since the pistol was jammed with empty cartridge, he struck the pistol on the body of tractor and got butt and barrel of pistol separated and threw it there. Thereafter they fled away towards village. Informant and his brother found that gunshot hit right side neck and shoulder of their father who was about 65 years old. FIR further states that no confrontation or altercation ever had taken place between accused and Informant. Only a civil litigation was going on. It is further stated that dead body of Informant's father Shabbir is lying on spot. 5. On the basis of written report (EX.Ka-1), PW-3, Constable Moharrir Ram Asrey Verma registered FIR (Kx.Ka-2) on 26.05.1998 at 9.30 PM against the three accused-appellants at Case Crime No. 31 of 1998 under Section 302 I.P.C., PS Rajpur, District Kanpur Dehat. He also prepared Chik FIR No. 30 and made relevant entry in G.D. at report No. 35. 6. Immediately after registration of the case, investigation was undertaken by PW-4, Mohd. Yaqoob Khan. He recorded statement of Informant Sajjad Husain and Constable Clerk Ram Asrey Verma. He proceeded for the place of occurrence in the morning of 27.05.1998 at 5.45 AM and prepared inquest in respect of deceased Shabbir Husain. He also prepared Panchayatnama (Ex.Ka-4) and other relevant documents namely Photo Nash, Challan Nash, specimen seal, letter to C.M.O. and R.I. (Ex.Ka-5 to Ka-9 respectively). He also took sample of blood stained and simple earth from the place of occurrence and sealed them in 154 INDIAN LAW REPORTS ALLAHABAD SERIES separate bundles and prepared recovery memo (Ex.Ka-10). He also found and took in possession an empty cartridge of 12 bore besides pellets and cap from the place of occurrence; a cycle and a gunny bag said to belong deceased and prepared recovery memo. The I.O. found a broken countrymade pistol at the place of occurrence, butt and barrel whereof were separate. A separate case under Section 25 Arms Act was also registered. 7. Autopsy over the dead body of deceased Shabbir was conducted by PW5, Dr. Narendra Kumar Singh Yadav. On external examination he found the deceased to be of average body built. Rigor mortis passed off from upper half of the body and present in lower half; eyes and mouth closed; abdomen distended, P.M. staining present whole of the back buttock and thigh. He found following ante-mortem injuries on his person: (1) Firearm wound of entry 2 cm x 2 cm x bone deep on the left side of neck, 3 cm below the left angle of the mandible, margins inverted. Blackening, tattooing and charring present around the wound. (2) Firearm wound of entry 4 cm x 3cm x bone deep on the left side of top of the shoulder. Margins inverted, charring present around the wound. 20 small pallets and one wadding piece were recovered from the wound. 8. On internal examination, nothing abnormal was detected with respect to thorax, pleura, pericardium, abdominal walls, pancreas; both chambers of heart were empty; left carotid artery was ruptured. Teeth 14x15; stomach contained watery fluid 4 ounce; small intestine half full with gases; large intestine contain faecal matter and gases; gall bladder half full and pale; both kidney pale, urinary bladder empty. In the opinion of Doctor, death was caused due to shock and hemorrhage on account of gunshot wounds. He (PW-5) prepared postmortem report (Ex.Ka-12). 9. PW-6, S.I. Dhirendra Singh Yadav, was Station Officer P.S. Rajpur on 27.05.1998, on which date he had taken investigation from PW-4 Mohd. Yakoob Khan, and recorded statements of Farhan and Raju. He also inspected the spot and prepared site-plan (Ex.Ka-13). He continued investigation upto 12.06.1998 when he was transferred from Rajpur. Thereafter investigation was undertaken by S.O. Vijendra Singh, who submitted charge-sheet (Ex.Ka-14) dated 01.07.1998 against accused-appellants. 10. Cognizance of the offence was taken by Chief Judicial Magistrate, Kanpur Dehat on 05.08.1998. Case being exclusively triable by Court of Sessions was committed by Chief Judicial Magistrate after necessary compliance under Section 207 Cr.P.C to Court of Sessions for trial wherefrom the case was transferred to First Addl. Sessions Judge, Kanpur Dehat. 11. Trial Court framed charges against the accused-appellants Zafar and Azhar under Section 302 I.P.C. read with Section 34 I.P.C., vide order dated 14.12.1998. The charge reads as under: vkjksi i= eSa ch0Mh0 prqosZnh] izFke vij tuin ,oa l= U;k;k/kh'k] dkuiqj nsgkr] vki tQj gqlsu ,oa vtgj gqlsu ij fuEufyf[kr vkjksi yxkrk gWw%& 2 All. Sri Mazhar Husain & Ors. Vs State of U.P. 155 ;g fd fnukad 26&5&1998 dks le; yxHkx 6-30 cts 'kke xzke jeÅ Fkkuk jktiqj tuin dkuiqj nsgkr esa fLFkr [ksr esa vkius vius ,d vU; lkFkh ds lkFk lkekU; vk'k; dks vxzlkfjr djrs gq, lCchj gqlsu fuoklh xzke jeÅ Fkkuk jktiqj tuin dkuiqj nsgkr dh reaps ls xksyh ekjdj e`R;q dkfjr djds gR;k dkfjr dhA vkSj eSa] ,rn~}kjk vkidks vkfn"V djrk gwW fd mDr vkjksi ds v/khu vkidk ijh{k.k bl U;k;ky; }kjk lEikfnr fd;k tk;sA Charge I, V.D. Chaturvedi, First Additional District and Sessions Judge, Kanpur Dehat, charge you Zafar Hussain and Azhar Hussain as under :- That on 26.5.1998 at about 6:30 p.m. in furtherance of your common intention you along with your another accomplice by opening fire with country made pistol caused death of Shabbir Hussain, resident of village Ramau, P.S. Rajpur, District kanpur Dehat in the field situated in village Ramau, PS. Rajpur, District Kanpur Dehat and thereby committed murder which is punishable under Section 302/34 I.P.C. and within the cognizance of this Court. And I hereby directed that you be tried by this Court for the aforesaid charges. (English Translation by Court) 12. Accused-appellant Mazhar Hussain has been charged separately under Section 302 I.P.C. as under : vkjksi i= eSa ch0Mh0 prqosZnh] izFke vij tuin ,oa l= U;k;k/kh'k] dkuiqj nsgkr] vki etgj gqlsu ij] fuEufyf[kr vkjksi yxkrk gWw%& ;g fd fnukad 26&5&1998 dks le; yxHkx 6-30 cts 'kke xzke jeÅ Fkkuk jktiqj tuin dkuiqj nsgkr esa fLFkr [ksr esa vkius vius nks vU; lkfFk;ksa ds lkFk lCchj gqlsu fuoklh xzke jeÅ Fkkuk jktiqj tuin dkuiqj nsgkr dh reaps ls xksyh ekjdj e`R;q dkfjr djds gR;k dkfjr dhA tks fd /kkjk 302 Hkk0n0la0 ds vUrxZr n.Muh; vijk/k gS vkSj bl U;k;ky; ds izlaKku esa gSA vkSj eSa] ,rn~}kjk vkidks vkfn"V djrk gwW fd mDr vkjksi ds v/khu vkidk ijh{k.k bl U;k;ky; }kjk lEikfnr fd;k tk;sA Charge I, V.D. Chaturvedi, First Additional District and Sessions Judge, Kanpur Dehat, hereby charge you Mazhar Hussain as under :- That on 26.5.1998 at about 6:30 p.m. by opening fire with countrymade pistol along with two other accomplice committed murder, by causing death of Sabbir Hussain in the field situated in village Ramau, PS. Rajpur, District Kanpur Dehat which is an offence punishable under Section 302 I.P.C. and within the cognizance of this Court. And I hereby directed that you be tried by this Court for the aforesaid charges. (English Translation by Court) 13. Accused-appellant pleaded not guilty and claimed to be tried. 14. In order to establish its case, prosecution examined as many as six witnesses, out of whom PW-1 Sajjad Husain, PW-2 Farhan Husain and PW-3 Ram Asrey Verma are witnesses of fact. Rest are formal witnesses. PW-4 S.I. 156 INDIAN LAW REPORTS ALLAHABAD SERIES Yaqoot Khan is first Investigation Officer and has proved inquest, photo nash, challan nash, specimen seal, letter to C.M.O. and letter to R.I. (Ex.Ka-5 to Ka-9) as also the supurdginma (Ex.Ka-11) with respect to cycle and bag of deceased. PW-5, Dr. Narendra Kuamar Singh Yadav, who has conducted post-mortem on the dead body of deceased has proved post-mortem report (Ex.Ka-12). PW-6 is second Investigation Officer, S.I. Dhirendra Singh Yadav, who has proved siteplan (Ex.Ka-13) and charge-sheet submitted by S.I. Vijendra Singh, marked as Ex.ka-14. 15. In the statement under Section 313 Cr.P.C. accused persons denied the incident and stated the prosecution story to be false. They admitted that Informant is their cousin. A litigation with respect to land was going between Ahmad Husain and Shabbir and others. Pairavi was being done by Sajjad but they did not bear any enmity with him. It is further stated that in order to usurp the rights of accused and to exert pressure, they have been falsely implicated. 16. Accused-appellants have also produced Shiv Pal Singh, DW-1, in defense. He has stated that his Tractor was lying at his own house. 17. Trial Court vide its impugned judgment after evaluating the entire evidence led by prosecution as well as defense found the accused-appellants guilty of the charges leveled against them and convicted and sentenced them under Sections 302 and 302/34 I.P.C. as detailed above. Being dissatisfied from the judgment of Trial Court, accusedappellants preferred this Criminal Appeal. 18. As stated above, the appeal survives only with respect to accusedappellants-1 and 2. 19. We have heard Sri V.M. Zaidi, learned Senior Advocate, assisted by Sri Ramesh Singh Advocate for appellant and Sri Syed Ali Murtaza, Learned AGA for the State at length and have gone through the record available on file carefully. 20. Learned counsel for the appellants challenging impugned judgement and order of conviction advanced his argument in the following manner :- (i) There is no independent witness. PW-1 and PW-2 are related and interested witnesses. (ii) There is no motive to accused persons to commit the present crime like murder of his cousin brother Shabbir. (iii) There is no reliable evidence so as to justify conviction of appellants. (iv) There are major contradictions in the evidence of PWs which may render the prosecution story doubtful. (v) As per prosecution case, accused Mazhar Husain is alleged to have opened fire on the victim through his country made pistol which is in broken position but rest other accused persons have been involved on account of previous enmity which is not sufficient to commit murder. (vi) As per prosecution, witness Ranu is said to be present on spot but prosecution did not adduce him as witness, therefore, presumption of Section 114 (g) goes against him. 2 All. Sri Mazhar Husain & Ors. Vs State of U.P. 157 (vii) According to prosecution, fire is said to be opened by accused Mazhar Husain, therefore, conviction of accused Zafar Husain is not proper and unsustainable under Section 302/34 I.P.C. 21. Learned AGA opposed the submissions made from the side of appellant and submitted that evidently there existed previous enmity between the parties before incident and civil litigation was also pending. The incident had taken place in the light of day. Both parties, although were inimical, but known to each other. On the exhortation of other co-accused, accused Mazhar Hussain opened fire on the victim with intention to kill him in furtherance of common intention of all. All the three accused persons were present on the spot and their presence is fully proved and established from the evidence of PWs-1 and 2. Appellant could not dispute the factum of murder, time and place. 22. Although time, date and place, injuries found on the body of deceased as indicated in post mortem report could not be disputed by the accused-appellant but according to counsel for appellants, they are not responsible for the crime. PWs.1 and 2 supported the prosecution case. 23. PW-5 Dr. Narendra Kumar Singh Yadav conducted post mortem report and expressed his opinion that death of victim might have occurred due to ante-mortem fire arm injuries. From the evidence of PWs-1, 2 and 5, time date and place of death of Shabbir, and manner of injuries are fully established. PWs-1 and 2 categorically deposed that Mazhar Husain opened two fires on Shabbir. PW-5 Dr. Narendra Kumar Singh Yadav found two ante mortem gun shot injuries on the person of deceased. In this way ocular testimony is totally compatible with medical evidence. 24. Only question up for consideration is, "whether accused appellant Mazhar Husain and Zafar Husain are responsible for committing murder of informant's father Shabbir and Trial Court has rightly convicted them or not?" 25. We now proceed to consider briefly the evidence led by prosecution available on record. 26. PW-1 deposed that on the fateful day i.e. 26.5.1998, accused-appellant Mazhar Hussain went along with Azhar Husain and Zafar Husain to plough the field taking tractor of one Thakur. At about 6:00 p.m. at the same time his father Shabbir Husain was going to field by bicycle to take straw along with Ranu (Bhanja of Informant). When he (PW-1) and his brother Farhan heard that accused persons were ploughing the field and they were making altercation with his father, they rushed to the field and reached near Puliya, and, saw that on the exhortation and provocation of accused-appellant Zafar and Azahar, accused-appellant Mazahar Husain took out country made pistol and opened two fires on his father, who received fire arm injuries and fell down in the field. On seeing the firing, driver of tractor fled away from the spot leaving tractor there. Accused-appellant Mazhar Hussain again tried to load cartridges in the pistol but pistol could not be opened because of empty cartridge. Accused-appellant struck his pistol on tractor and got butt and barrel of pistol separated and threw it there. All the three accused-appellants fled away from the 158 INDIAN LAW REPORTS ALLAHABAD SERIES spot towards village by tractor. Informant's father having been injured, succumbed to injuries on spot. 27. PW-2 Farhan deposed that on 26.5.1998 at about 6:00 p.m., accused appellant Mazhar Hussain, Zafar Hussain and Azahar Hussain were going to plough the field taking tractor of Thakur, at that time his father Shabbir was going to field for taking straw. On seeing that Mazhar Husain was ploughing field, he and his brother Sajjad (PW-1) rushed to the field, thinking that his father might not indulge in altercation with accused appellants in the field. They proceeded to field and when reached near Puliya, saw an altercation between accused persons and his father. Accused appellant Azahar Husain and Zafar Husain provoked Mazhar Husain to kill Informant's father saying that let the dispute be finished that day. Mazhar Husain took out country made pistol and opened two fires on his father Shabbir, who received serious injuries and fell down and succumbed to death. 28. Both the witnesses PW-1 and 2 withstood lengthy cross-examination but nothing material could be brought on record so as to dent the prosecution story doubtful. 29. PW-1 and PW-2 successfully established the presence of both accused appellants on spot and firing by accusedappellant Mazhar Husain at Shabbir Husain on the provocation of Zafar Husain and Azhar Husain. PW-5 Dr. Narendra Kumar Singh Yadav proved the post mortem report in which he found two fire arm injuries on the person of deceased, expressing his opinion that death might have occurred due to hemorrhage and coma on account of fire arm injuries and death was possible at 6.30 p.m. on 26.5.1998. From the statement of PWs- 1, 2 and 5, it is established that accused Zafar and Azhar and Mazhar were present on spot and on the provocation and exhortation made by Zafar and Azhar, accused-appellant Mazhar Hussain opened two fire on Shabbir Hussain, who received serious gun shot injuries and succumbed to death on spot. 30. Admittedly, PW-1 and 2 are real brother and sons of deceased. They are related to him but they appeared to be quite natural witness. 31. So far as argument of relation of witnesses is concerned, we are not impressed with submission made by learned Amicus Curiae for accusedappellant for reasons that if relation witnesses are found to be reliable, natural and trustworthy, their evidence cannot be discarded on the ground of their relationship with deceased or accused. 32. In Ganga Bhawani v. Rayapati Venkat Reddy and Others, 2013(15) SCC 298, Court has held as under :- "11. It is a settled legal proposition that the evidence of closely related witnesses is required to be carefully scrutinised 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, be relied upon. 2 All. Sri Mazhar Husain & Ors. Vs State of U.P. 159 (Vide: Bhagalool Lodh & Anr. v. State of UP, AIR 2011 SC 2292; and Dhari & Ors. v. State of U. P., AIR 2013 SC 308)." 33. It is settled law that merely because witnesses are closely related to deceased, their testimonies cannot be discarded. Relationship with one of the parties is not a factor that affects credibility of witness, more so, a relative would not conceal actual culprit and make allegation against an innocent person. However, in such a case, Court has to adopt a careful approach and analyse evidence to find out that whether it is cogent and credible evidence. 34. In so far as discrepancies, variations and contradictions in prosecution case are concerned, we have analysed entire evidence in consonance with submissions raised by learned counsel's and find that the same do not go to the root of case and accused-appellant are not entitled to get benefit of the same. 35. In Sampath Kumar v. Inspector of Police, Krishnagiri, (2012) 4 SCC 124, Court has held that minor contradictions are bound to appear in the statements of truthful witnesses as memory sometimes plays false and sense of observation differs from person to person. 36. We lest not forget that no prosecution case is foolproof and the same is bound to suffer from some lacuna or the other. It is only when such lacunae are on material aspects going to the root of the matter, it may have bearing on the outcome of the case, else such shortcomings are to be ignored. Reference may be made to a recent decision of the Apex Court (3 Judges) in Criminal Appeal No. 56 of 2018, Smt. Shamim v. State of (NCT of Delhi), decided on 19.09.2018. 37. So far as motive is concerned, it is well settled that where direct evidence is worthy, it can be believed, then motive does not carry much weight. It is also notable that mind set of accused persons differs from each other. Thus merely because that there was no strong motive to commit the present offence, prosecution case cannot be disbelieved. We do not find any substance in the argument advanced by learned counsel for appellants. 38. In Lokesh Shivakumar v. State of Karnataka, (2012) 3 SCC 196, Court has held as under :- "As regards motive, it is well established that if the prosecution case is fully established by reliable ocular evidence coupled with medical evidence, the issue of motive looses practically all relevance. In this case, we find the ocular evidence led in support of the prosecution case wholly reliable and see no reason to discard it." 39. So far as non-examination of eye witness Ranu shown in F.I.R. is concerned, in view of Section 134 of Indian Evidence Act,1872 (hereinafter referred to as 'Act,1872'), we do not find any substance in the submission of learned counsel for the appellant. 40. Law is well-settled that as a general rule, Court can and may act on the testimony of a single witness provided he/she is wholly reliable. There is no legal impediment in convicting a person on the sole testimony of a single witness. That is 160 INDIAN LAW REPORTS ALLAHABAD SERIES the logic of Section 134 of Act, 1872, but if there are doubts about the testimony, Court will insist on corroboration. In fact, it is not the numbers, the quantity, but the quality that is material. Time-honoured principle is that evidence has to be weighed and not counted. Test is whether evidence has a ring of truth, cogent, credible and trustworthy or otherwise. 41. In Namdeo v. State of Maharashtra (2007) 14 SCC 150, Court re-iterated the view observing that it is the quality and not the quantity of evidence which is necessary for proving or disproving a fact. The legal system has laid emphasis on value, weight and quality of evidence rather than on quantity, multiplicity or plurality of witnesses. It is, therefore, open to a competent court to fully and completely rely on a solitary witness and record conviction. Conversely, it may acquit the accused inspite of testimony of several witnesses if it is not satisfied about the quality of evidence. 42. In Kunju @ Balachandran vs. State of Tamil Nadu, AIR 2008 SC 1381 a similar view has been taken placing reliance on earlier judgments including Jagdish Prasad vs. State of M.P., AIR 1994 SC 1251; and Vadivelu Thevar vs. State of Madras, AIR 1957 SC 614. 43. In Yakub Ismailbhai Patel Vs. State of Gunjrat reported in (2004) 12 SCC 229, Court held that :- "The legal position in respect of the testimony of a solitay eyewitness is well settled in a catena of judgments inasmuch as this Court has always reminded that in order to pass conviction upon it, such a testimony must be of a nature which inspires the confidence of the Court. While looking into such evidence this Court has always advocated the Rule of Caution and such corroboration from other evidence and even in the absence of corroboration if testimony of such single eye-witness inspires confidence then conviction can be based solely upon it." 44. In State of Haryana v. Inder Singh and Ors. reported in (2002) 9 SCC 537, Court held that it is not the quantity but the quality of the witnesses which matters for determining the guilt or innocence of the accused. The testimony of a sole witness must be confidenceinspiring and beyond suspicion, thus, leaving no doubt in the mind of the Court. 45. The further issue which has to be examined by this Court is, "whether conviction of appellants under Section 302 read with Section 34 IPC is justified and can it be said that they are guilty of offence u/s 302/34 and murder of Shabbir Husain can be said to be a part of common intention on the part of appellants in the above facts and circumstances of case". In other words, "whether Section 34 read with Section 302 IPC is attracted in the case in hand in respect of appellants is the crucial issue which has to be examined by us". 46. We, therefore, first proceed to examine Section 34 IPC, which reads as under :- "Section 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." 2 All. Sri Mazhar Husain & Ors. Vs State of U.P. 161 47. As initially enacted, the words "in furtherance of the common intention of all" were not part of Section 34 but came to be introduced by Section 1 of Act XXVII of 1870. The reason for inserting such amendment was the observations made by Sir Barnes Peacock, CJ, in Queen Vs. Gora Chand, (1866) 5 Suth WR 45 (FB), holding that mere presence of a person at the scene of crime would not be sufficient to hold him liable to be implicated under section 34 IPC as it stood then, unless such presence was an act in furtherance of a common design. 48. Ordinary rule of criminal liability is that a person who actually commits an offence has the primary responsibility to suffer punishment for the same. Section 34 IPC, however, brings within the ambit of penal liability even those person(s) who have not actually committed crime but there existed a common intention animating the accused leading to the doing of a criminal act in furtherance of such intention. Thus to attract Section 34, which infact enumerates one of the principle of constructive liability, two conditions must be satisfied : (i) There must be common intention to commit a criminal act; and (ii) There must be participation by all the persons in doing such act in furtherance of that intention. 49. In Krishna Govind Patil Vs. State of Maharashtra, AIR 1963 SC 1413, Court construed Section 34 IPC and held that common intention within the meaning of section implied a prearranged plan and the criminal act was done pursuant to the pre-arranged plan. The said plan may also develop on the spot during the course of commission of the offence; but crucial circumstance is that the said plan must precede the act constituting the offence. If that be so, before a court can convict a person under Section 34 read with specific provision under which the person is charged, it should come to a definite conclusion that the said person had a prior concert with one or more other persons, named or unnamed, for committing the said offence. 50. In Gurdatta Mal Vs. State of Punjab, AIR 1965 SC 257 =(1965) 1 Cri LJ 242 (SC), it was held that criminal sharing, overt or covert, by active presence or by distant direction, making out a certain measure of jointness in the commission of the act is the essence of section 34 IPC. 51. Joel Prentiss Bishop in "Commentaries on the Criminal Law", an American Jurist said that every person is responsible criminally for what wrong flows directly from his corrupt intentions; but no man, intending wrong, is responsible for an independent act of wrong committed by another. If one person sets in motion the physical power of another person the former is criminally guilty for its results. If he contemplated the result, he is answerable, though it is produced in a manner he does not contemplate. If he does not contemplate the result in kind, yet if it was the ordinary effect of the cause, he is responsible. If he awoke into action an indiscriminate power he is responsible. If he gave directions vaguely and incautiously, and the person receiving them acted according to what might be presumed to have been his understanding of them, he is responsible. But, if the wrong done was a fresh and independent wrong, springing wholly from the mind of 162 INDIAN LAW REPORTS ALLAHABAD SERIES the doer, the other is not criminal therein, merely because, when it was done, he was intending to be a partaker with the doer in a different wrong. 52. A similar observation was also made in Shankarlal Kachrabhai & Ors. Vs. State of Gujarat, AIR 1965 SC 1260 by referring to a decision of Judicial Committee in Mahbub Shah Vs. KingEmperor, L.R. 72 I.A. 148. Court said that the criminal act mentioned, in Section 34 IPC is the result of the concerted action of more than one person; if the said result was reached in furtherance of the common intention, each person is liable for the result as if he had done it himself. Court also explained the meaning of word "in furtherance of the common intention" and said as under : "The Dictionary meaning of the word "furtherance" is "advancement or promotion". If four persons have a common intention to kill A, they will have to many acts in promotion or prosecution of that design in order to fulfill it. Some illustrations will clarify the point. Four persons intend to kill A, who is expected to be found in a house. All of them participate in different ways. One of them attempts to enter the house, but is stopped by the sentry and he shoots the sentry. Though the common intention was to kill A, the shooting of the sentry is in furtherance of the said common intention. So Section 34 applies. Take another illustration. If one of the said accused enters the room where the intended victim usually sleeps, but somebody other than the intended victim is sleeping in the room, and on a mistaken impression he shoots him. The shooting of the wrong man is in furtherance of the common intention and so, Section 34 applies. Take a third variation of the illustration. The intended victim has a twin brother who exactly resembles him and the accused who is entrusted with the part of shooting the intended victim, on a mistaken impression, shoots the twin brother. The shooting of the twin brother is also in furtherance of the common intention. Here also Section 34 applies. If that much is conceded we do not see any justification why the killing of another under a mistaken impression of identity is not in furtherance of the common intention to kill the intended victim. When the accused were shooting at Rama believing him to be Madha, they were certainly doing a criminal act in furtherance of the common intention which was to kill Madha. They killed Rama because they believed that they were shooting at Madha. Mr. Chari argues, how can a mistake committed by one of the accused be in furtherance of a common intention ? For it is said that to commit a mistake was not a part of the common intention of the accused. But the question is not, as we have pointed out, whether the committing of a mistake was a part of the common intention, but whether it was done in furtherance of the common intention. If the common intention was to kill A and if one of the accused kills B to wreak out his private vengeance, it cannot possibly be in furtherance of the common intention for which others can be constructively made liable. But, on the other hand, if he kills B bona fide believing that he is A, we do not see any incongruity in holding that the killing of B is in furtherance of the common intention." 53. In this decision, Court also referred to the Judicial Committee decision in Barendra Kumar Ghosh Vs. 2 All. Sri Mazhar Husain & Ors. Vs State of U.P. 163 Emperor (1924) I.L.R. 52 Cal. 197 explaining the expression "criminal act" as under "A criminal act means that united criminal behavior which results in something for which an individual would be punishable if it were all done by himself alone that is, in a criminal offence." 54. In Hethubha alias Jithuba Madhuba and Ors. Vs. State of Gujarat, AIR 1970 SC 1266, Court observed that dominant feature of Section 34 is the element of participation in actions. This participation need not in all cases be by physical presence. Common intention implies acting in concert. Prior concert and pre-arranged plan is the foundation of common intention to establish liability and guilt. 55. In Jai Bhagwan and others Vs. State of Haryana, AIR 1999 SC 1083, Court said that 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 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 common intention is absent, Section 34 cannot be invoked. 56. In Harjit Singh & Anr. Vs. State of Punjab, (2002) 6 SCC 739, the Court said that "common intention" is a state of mind of an accused which can be inferred objectively from his conduct displayed in the course of commission of crime as also prior and subsequent attendant circumstances. Mere participation in the crime with others is not sufficient to attribute "common intention" to one or others involved in the crime. The subjective element in "common intention" therefore should be proved by objective test. 57. In order to attract Section 34 IPC, the Court should be able to draw an inference that result reached was concerted action of the person said to have been liable. 58. The "common object" is different from "common intention". However, we do not propose to deal into this distinction for the reason that here Section 149 is not in issue and therefore this Court is confined only to examine whether Section 34 IPC has rightly been applied or not and there was evidence of common intention or not. However, suffice it to mention that dealing with distinction in "common object" and "common intention", in Dani Singh & Ors. Vs.