Ibrahim and Another (In Jail) vs State of U.P.

P.K. Jain, J.—These three appeals arise out of the common judgment and order, dated 4.6.80 passed by the then Vth Additional Sessions Judge, Gorakhpur, convicting the Appellants u/s 302 read with Section 34, I.P.C. in S.T. No. 190 of 1979 and sentencing each of them to rigorous imprisonment for life and a fine of Rs. 500 each and in default of payment of fine to undergo further rigorous imprisonment for six months.

Appellant Akhtar was reported to have died during the tendency of the appeal and the appeal on his behalf stood abated vide order, dated 13.3.97 passed by this Court.

The prosecution case as contained in the first information report (Ex. Ka.-2) is that accused Akhtar Alam and Yahiya Khan had demanded Rs. 1,000 from the victim which the victim had refused to pay. Both of them had threatened the victim saying ''Tumhare Kagaz Poore Hain''. On 8.3.79 at about 4.00 p.m. accused Akhtar Alam and Yahiya Khan armed with guns and Ibrahim and Abdul Qauim armed with country-made pistols went to the house of the victim in village Oonti Tola Nikahwa, P.S. Shyam Deorawa, district Gorakhpur, along with Sadal Harijan whose hands were tied by the accused persons. The accused persons entered the house of the deceased and caught hold of him. They dragged the victim out of the house and took him towards village Barahara. The first informant, Om Prakash Pandey (son of the victim), his mother and the younger brother raised alarm which attracted witnesses Ramji, Prem, Ram Niwas Pandey and others. All the witnesses including the first informant followed the accused persons: In the meantime, the accused had taken the victim near the house of Sheo Ratan of village Barahara Ganjan where Akhtar Alam and Yahiya Khan fired one shot each upon the father of the first informant causing instantaneous death. The accused persons went away threatening the witnesses. Sadal Harijan had told the first informant and the witnesses that the accused had come to the house of one Ram Chandra Yadav and were taking some thing there. They had called him to supply liquor and when he refused to do so, he was assaulted with lathis and dandas. His hands were tied and he was made to accompany them to the house of the victim and while on way to the house of the victim, they had assaulted him.

First information report of this incident was scribed by Om Prakash Pandey and lodged at P.S. Shyam Deorawa on 8.3.79 at 9.35 p.m., the police station being two miles away from the place of incident. A case u/s 302, I.P.C. was registered. P.W. 10 Sri Krishna Misra, Officer-in-charge of police station Shyam Deorawa had investigated the case. On 8.3.79 he went to the scene of occurrence. Since there was no proper arrangement of light, nothing could be done in the night. Investigation was started by the I.O. on 9.3.79. He had found the dead-body of Ayodhya Pandey in front of the house of Sheo Ratan Yadav. The I.O. held inquest on the dead body and prepared inquest report (Ex. Ka. -5) and other papers (Exs. Ka.-6 to Ka.-9). He sealed the dead body and sent it for postmortem. From the place where the dead-body was lying, he had taken samples of bloodstained and plain earth. He thereafter interrogated the witnesses and at the pointing out of the first-informant and other witnesses, he inspected the scene of occurrence and prepared site plan (Ex. Ka.-lO). The statement of Sadal alias Sadabriks was recorded on 11.3.79 and the same day he was got medically examined. On completion of the investigation, charge-sheet was submitted on 6.5.79.

Autopsy on the dead body of Ayodhya Pandey was held by Dr. T.N. Sinha (P.W. 8) on 10.3.79 at 2.30 p.m. On external examination the doctor had found that rigor mortis had passed off from both upper and lower limbs. Abdomen was distended.

Following ante-mortem injuries were found on the person of the deceased.

(1) Gun-shot wound of entry, size 1/2" x 1/2" x right chest cavity deep on the right scapular region. Just medial of right scapula charring wound was present.

(2) Gun-shot wound of entry, size 1/2" x 1/2" x chest cavity deep 3" away on medial side of injury No. 1 charring around the wound present.

(3) Gun-shot wound of exit 1-1/2" x 1-1/2" x right chest cavity deep on the right side of the chest at the medial end of right clavicle. Bone underneath is broken into pieces.

On internal examination the doctor had found that right pleura under injuries Nos. 1 and 2 was ruptured. Right lung was lacerated under injury Nos. 1 and 2. Big vessels were also ruptured under injury No. 3. Stomach contained semi-digested food material (rice and dale). Both the intestines contained faucal matter and gasses. In the opinion of the doctor death was caused by shock and hemorrhage due to ante-mortem injuries and it had occurred more than one and a half day prior to the postmortem examination.

From the dead body the doctor had taken out 40 metallic shots from the right chest cavity lung and liver which were sealed and sent to the S.O. concerned. The doctor had prepared the postmortem examination report (Ex. Ka.-4).

After the case was committed to the Court of Session, the trial court framed charges u/s 302 read with Section 34, I.P.C.

The accused denied the charges framed against them and claimed to be tried.

In their statements u/s 313, Code of Criminal Procedure, the accused denied the prosecution allegations and stated that they were falsely implicated due to enmity with the police.

Accused Akhtar Alam stated that one Swami Tiwari was Dalai of the police station. Police had earlier involved him (accused Akhtar Alam) in a case Under Sections 394/302,I.P.C, in which he was acquitted by the Court. Swami Tiwari in collusion with the police got him falsely implicated.

Ibrahim stated that police wanted him to depose falsely and on his refusal to do so he was falsely implicated.

Accused Yahiya Khan stated that he was involved in a case Under Sections 394/302, I.P.C. but could not be identified by the witnesses during test identification proceedings and therefore he was involved in this case.

Accused Qayum stated that his co-sharers and their friends in collusion with the police got him falsely implicated. Shahabuddin and Farbuddin are his enemies and co-sharers. There was litigation with them in consolidation proceedings. They are friends of Ayodhya Pandey. Shahabuddin''s son Salamuddin works at the place of Ayodhya''s brother. Police had demanded Rs. 1.000 from him and on his refusal to pay the same he was falsely implicated. He was Security Officer in Bombay and was in his village in connection with ancestral property.

The prosecution, in support of its case, examined as many as ten witnesses, out of which P.W. 1 Om Prakash Pandey, the first informant and son of the deceased, P.W. 5 Anari Devi, widow of the deceased, are witnesses of the entire incident and have fully corroborated the case of the prosecution. P.W. 9 Sadal is a witness of the factum of the accused going to the house of the victim and abducting him and also the factum of demand of liquor and assault on him by the accused. P.W. 2 Sri Niwas Pandey, P.W. 3 Prem and P.W. 4 Ramji were witnesses of fact but they have not supported the prosecution. P.W. 6 Durga Prasad Pandey, is a formal witness who had taken the dead-body for postmortem examination. P.W. 7 Head Constable Ramanuj Shukla had scribed the check report and relevant G.D. entries (Exs. Ka.-2 and Ka.-3). P.W. 8 Dr. T.N. Sinha had held autopsy on the dead body of Ayodhya Pandey P.W. 10 S.I. Sri Krishna Misra, is the Investigating Officer.

The accused persons had examined three witnesses, namely, D.W. 1 Jai Mangal, D.W. 2 Dhuri and D.W. 3 Rahmat Ullah. According to D.W. 1 Ayodhya was done to death near the house of Sheo Ratan by some unknown miscreants at about 9.00 p.m. Similar is the statement of D.W. 2. D.W. 3 had deposed that one Banarsi Tiwari of his village was murdered about 15-16 years back. Banarsi�s brother was Swami Nath. Babban, Suleman and others were prosecuted for the murder of Banarsi Tiwari. Bakhsi Saleem used to do pairvi on behalf of the accused persons. After Babban and Suleman were acquitted, Bakhsi Saleem was killed. Since then enmity is existing between the families of Swami Nath and Akhtar Alam. This witness has further corroborated D.W. i and D.W. 2 about the factor of murder of Ayodhya Pandey near the house of Sheo Ratan at about 9.00 p.m. They also filed some documents.

The trial court believed the prosecution evidence and convicted and sentenced the Appellants as stated above.

During hearing of the appeal we had, at the request of the defense, examined Dr. G.D. Barnwal, Chief Medical Officer, Allahabad, who after going through the medical examination report of Sadal (H.C. Ex. 1) opined that the injuries of Sadal (Sadabriksh) could be about 48 hours or two days'' old and he further opined that there could be margin of half day both ways in the duration of the injuries.

We have heard Sri G.S. Chaturvedi, learned Counsel appearing on behalf of the Appellants as also learned A.G.A.

The judgment and order of the trial court is assailed on the ground that so far as Appellants, Ibrahim and Abdul Qayum, are concerned they could not be convicted u/s 302 read with Section 34, I.P.C. as there is no evidence for making out a case that the offence of murder was committed in furtherance of their common intention, that the lodging of the first information report at the time alleged by the prosecution is doubtful and in case the first information report is found to have been lodged with unexplained and undue delay, then the entire prosecution story becomes doubtful and lastly that the evidence of the prosecution witnesses does not inspire confidence.

Learned A.G.A. appearing on behalf of the State by referring to the statements of P.W. 1 Om Prakash and P.W. 5 Smt. Anari Devi, which according to him have not been challenged during cross-examination, submits that these statements clearly bring the case of Ibrahim and Abdul Qayum Appellants within the mischief of Section 34, I.P.C. and, therefore, they were rightly convicted by the trial court and in the alternative they could be convicted Under Sections 365, 366, 341 and 342, I.P.C. It is submitted that there is no delay in lodging the first information report and delay, if any, has been explained during evidence of the witnesses. In the alternative he contended that there is absolutely no material on record showing that the first information report was the outcome of deliberations of the complainant with the Investigating Officer or the enemies of the accused persons and, therefore, the prosecution case cannot be thrown on the ground of delay in lodging the first information report, if any. It is, further submitted that the evidence of P.W. 1, P.W. 5 and P.W. 9 fully supports the case of the prosecution and there is no reason to discredit them and, therefore, the trial court committed no error in convicting the Appellants.

So far as the second submission of the learned Counsel for the Appellants with regard to delay in lodging the first information report is concerned, we may point out that the incident, according to the prosecution case, occurred at about 4.00 p.m. on 8.3.79. The first information report is said to have been lodged the same day at 9.35 p.m. and the police station Shyam Deorawa was around 2 miles away from the place of incident. The report was, thus, lodged about five and a half hour after commission of the crime. However. P.W. 1 has come out with an explanation that he stayed at the place of occurrence for about one and a half hour near the dead body of his father and thereafter he went to his house where he scribed the first information report. He went to the police station via Bhathat as he apprehended danger to his life from the accused persons. During cross-examination, he has explained as to why he had stayed near the dead body for about one and a half hour. He has stated that on account of mourning and weeping, he had to stay near the dead body. According to the case of the prosecution, the victim was the father of the first informant who was aged only around 15 years at the time of incident and husband of P.W. 5 Smt. Anari Devi. The ghastly act of murder was committed in their presence which must have put them in a state of shock for some time. Therefore, shedding of the tears by the first informant and his mother for some time was their most natural conduct and there is nothing unnatural in the conduct of the first informant in staying near the dead body for about one and a half hour. The first informant must have taken some time in regaining his wits and normalizing himself before scribing the first information report. It has come in evidence of P.W. 1 that Bhathat was about one and a half Kos (around three miles) away from his house and police station Shyam Deorawa was four miles away from Bhathat. There is nothing in his cross-examination as to how he traveled and covered the distance of seven miles. In case he had gone on foot, he must have taken about more than one hour''s time in covering the distance. In these circumstances, the delay in lodging the first information report, if any, appears to have been well explained by the prosecution and in our opinion, there is no undue delay in lodging the first information report. An attempt was made by the defense during cross-examination to suggest that the first information report was lodged in consultation with the enemies of the accused persons which is also the case of the defense as stated by the accused in their statements u/s 313, Code of Criminal Procedure The first informant has withstood the cross-examination and in our view, there is nothing on record to doubt or conclude that the first information report was the outcome of the consultation and deliberations with the enemies of the accused persons or the Investigating agency. We, therefore, do not find any force in this submission of the learned Counsel for the Appellants.

Now coming to the submission of the learned Counsel for the Appellants that the conviction of the Appellants Ibrahim and Abdul Qayum has been wrongly recorded by the trial court, we find that the prosecution case as contained in the first information report is that all the four accused persons went to the house of the victim together. Accused Akhtar and Yahia Khan were armed with guns whereas Ibrahim and Abdul Qayum were armed with country-made pistols. The miscreants had brought with them Sadal whose hands were tied. It is further there in the first information report that all the four caught hold of the victim and abducted him towards village Barabara. They were followed by the first informant, his mother (P.W. 5) and younger brother who were raising alarm and were also pleading the accused persons to spare the victim but the accused did not pay heed to their requests. It is further the case of the prosecution that as soon as the accused persons reached in front of the house of Sheo Ratan, Akhtar and Yahia Khan fired one shot each at the victim with their respective weapons. After Ayodhya Pandey, the victim, fell down, the accused persons went away threatening the witnesses. The submission of the learned Counsel for the Appellants is that the sudden firing by Akhtar and Yahia Khan cannot bring the case of the Appellants Ibrahim and Abdul Qayum within the mischief of Section 34, I.P.C. as the intention of the accused persons originally to thrash the victim and thereby teach him a lesson, cannot be ruled out. It is further submitted that since according to the case of the prosecution the witnesses and villagers were following the accused and the victim and were pleading to spare the victim, the pressure was mounting which might have tempted two of the accused persons to suddenly fire at the victim. Therefore, for such acts of two of the associates of the accused persons, Appellants Ibrahim and Abdul Qayum could not be held guilty u/s 302 read with Section 34, I.P.C. The learned A.G.A. has drawn our attention towards certain statements of P.W. 1 and P.W. 5, which according to him, remained unchallenged and which go to show that before firing at the victim was adopted, there was prior meeting of the mind of the accused persons, thereby bringing their case within four corners of Section 34, I.P.C. and, therefore, even though Appellants Ibrahim and Abdul Qayum are not assigned the role of the actual firing, they are liable vicariously u/s 34, I.P.C. It is also submitted that going of the Appellants Ibrahim and Abdul Qayum with the remaining two accused armed with fire-arms and their participation in catching hold of the victim and abducting him also indicates of their prior meeting of the mind.

It may be pointed out that in his examination-in-chief P.W. 1, Om Prakash has stated that the accused persons were telling them (the first informant and the witnesses as well as the deceased), "call any body who could save the victim" and that after committing murder, the accused persons turned towards the first informant and the witnesses and exhorted that whosoever would lodge the first information report or would give evidence shall meet the same fate. This part of the statement of P.W. 1 is not challenged by the defence during cross-examination. However, the contention of the learned Counsel for the Appellants is that this is a subsequent development and improvement over the original prosecution story to bring Appellants Ibrahim and Abdul Qayum within the four corners of Section 34, I.P.C. Similar submissions have been made with regard to the statement of P.W. 5, Smt. Anari Devi who in her examination-in-chief has stated that Ibrahim and Qayum had caught one arm each of the victim when Akhtar and Yahiya accused fired at her husband and that the accused had abused the complainant and the witnesses and had exhorted that in case they gave evidence they will also meet the same end. It is also pointed out that Smt. Anari Devi was confronted with her previous statement given to the Investigating Officer as she did not make such statement to the Investigating Officer. Further submission of the learned Counsel for the Appellants is that the statements of P.W. 1 and P.W. 5 in this regard is not consistent and that P.W. 2, P.W. 3 and P.W. 4 have not supported the prosecution so far as the actual assault on the victim is concerned. We may point out here that P.W. 10. Sri Krishna Misra was the Investigating Officer who had, of course, stated that Smt. Anari Devi did not state in her statement Under ` 161, Code of Criminal Procedure that the accused persons had caught the hands of Ayodhya Pandey and had pushed him out of the Dalan but the omission in the statement of P.W. 5 that at the time of firing at the victim two of the Appellants namely Ibrahim and Qayum had caught one hand each of the victim, had not been put to the Investigating Officer. Therefore, the alleged omission in the statement u/s 161, Code of Criminal Procedure is not proved in accordance with law.

Before we proceed to appreciate the arguments advanced by the learned Counsel for the Appellants as well as learned A.G.A., it is necessary to clarify the legal position. Section 34, I.P.C. provides for vicarious liability for punishment for the acts committed by others. Before one can be convicted with the aid of Section 34, I.P.C. two conditions shall have to be satisfied, viz., (i) the mental element, called the intention to commit the criminal act conjointly with another or others; (ii) actual participation in one form or others in the commission of offence. The essence of the common intention is simultaneous intention of several persons participating in criminal act to bring about a particular result. Such participation in furtherance of common intention can be gathered from the conduct of the accused as also from the surrounding circumstances. Mere presence of a person at the place of occurrence without active participation or doing of some positive act, which would indicate the sharing of common intention would not make a person liable for commission of an offence with the aid of Section 34, I.P.C. Similarly, knowledge that an offence is likely to be committed is not what is contemplated by Section 34. Knowledge of a likely result does not amount to an intention to bring about that result though such knowledge may, in some cases, justify the determination of the intention of the actual doer. While appreciating the facts and forming an opinion whether a particular offence was committed in furtherance of common intention, the entire conduct of the accused preceding the commission of the offence, during its commission and succeeding it together should be considered to render a person culpable co-extensively with others involved in the commission of the offence. If from the facts and circumstances established by the prosecution, sharing of the common intention can be inferred, then it would be immaterial as to by whose hand the eventful blow was dealt with. It was held in the case of Dukhmochan Pandey v. State of Bihar, 1997 (8) SCC 405, "the existence of a common intention between the participants in a crime is an essential element for attracting Section 34, I.P.C. and such intention could be formed previously or on the spot during the progress of the crime. Usually, it implies a pre-arranged plan which in turn presupposes a prior meeting of mind. But in a given case such common intention may develop at the spur of the moment in the Course of commission of offence "The question, whether all the persons who made some overt attack as a result of which some members of the prosecution party died shared the common intention of the murder of such persons would be a question of fact and it is difficult to give any direct proof of existence of such common intention. It can only be inferred from circumstances. In other words, unless such common intention is established as a matter of necessary inference from the proved circumstances of the case, then the accused persons could be individually liable for their respective overt acts and not for the act done by any other person. The mere fact that the accused persons were armed with some weapons itself would not be sufficient to attribute common intention to all of them to commit murder particularly when in the present case the prosecution case itself is that the accused persons came to the field with the sole object of desisting the laborers from continuing with the transplantation operation."

Therefore, before proceeding to examine whether the two Appellants, namely, Ibrahim and Abdul Qauim shared the common intention to commit murder of Ayodhya Pandey. it has to be found as to what facts and circumstances have been established by the prosecution. The prosecution case is that accused Akhtar Alam and Yahiya Khan had demanded Rs. 1,000 from the deceased about a week prior to the fateful day. On refusal of Ayodhya Pandey to accede to their demand, they had threatened Ayodhya Pandey by exhorting "tumhare kagaj poore hain". This part of the prosecution case is stated by P.W. 1 and P.W. 5 in their deposition before the Court. Although P.W. 1 has been cross-examined in this regard but nothing substantial could be extracted from him to demolish this part of the prosecution version. There is no suggestion to P.W. 1 that such an incident of demand of Rs. 1,000 by accused Akhtar Alam and Yahiya Khan did not occur or the aforesaid accused persons did not extend their threat to the victim. P.W. 5 Smt. Anari Devi has corroborated the statement of P.W. 1 in this regard. She has not at all been cross-examined by the defense in this regard and her testimony on the question of motive for commission of the crime goes unchallenged. Therefore, this circumstance is fully established by the prosecution evidence.

The second circumstance is that Akhtar Alam and Yahiya Khan and Appellants Ibrahim and Qayum went together to the house of the victim on the date of the incident. They had taken with them P.W. 9 Sadal whose hands were tied by them. All the four accused were armed with firearms, Akhtar Alam and Yahiya Khan had single barrel guns with them while Ibrahim and Abdul Qayum had country-made pistols with them. This incident had occurred at about 4.00 p.m. Only P.W. 1 Om Prakash son of the deceased and P.W. 5 Anari Devi, widow of the deceased and P.W. 9 Sadal have supported this part of the prosecution story. The other three witnesses, namely. P.W. 2 Sri Niwas Pandey, P.W. 3 Prem and P.W. 4 Ramji have not supported the prosecution and have turned hostile so far as witnessing of the actual occurrence and participation of the four assailants is concerned. These three witnesses have, however, supported the prosecution on the question of time of the occurrence and the place of incident. P.W. 2 and P.W. 3 have not at all been cross-examined by the defense. Only P.W. 4 has been suggested that the incident did not occur at 4.00 p.m. which suggestion was denied by P.W. 4. The testimony of P.W. 1 and P.W. 5 cannot be discredited on the ground that they were closely related to the deceased and were interested in the success of the prosecution case. Being son and widow of the deceased and considering the fact that the victim was abducted from his house and was killed only at a distance of about one furlong from his house, in our view P.W. 1 and P.W. 5 are most natural witnesses. Nothing has come in their cross-examination from which arrival of the four accused together armed with deadly weapons can be looked with suspicion. Even though P.W. 2, P.W. 3 and P.W. 4 have not supported the prosecution on the question of participation of four accused persons, yet in our view the evidence of P.W. 1 and P.W. 5 leads to irresistible conclusion that all the four Appellants had gone together to the house of the victim at about 4.00 p.m. and at that time they were armed with deadly weapons. The defence has, of course, examined three defiance witnesses, namely, D.W. 1 Jai Mangal, D.W. 2 Dhuri and D.W. 3 Rahmat Ullah, out of whom D.W. 1 and D.W. 2 have stated that the incident had occurred at about 9.00 p.m. They are admittedly not eyewitness of the incident and according to them, they had reached the scene of occurrence which was admittedly in front of the house of Sheo Ratan and on reaching there, they had found the dead body of Ayodhya Pandey lying there. Their evidence was discarded by the trial court by observing that "none of these witnesses appeared before the Investigating Officer during investigation. They have deposed the time of occurrence as 9.00 p.m. for the first time in their statements in Court. Their evidence is believed by the circumstance that if the occurrence had taken place at 9.00 p.m., it could not be possible for P.W. 1 to have reached the police station at 9.35 p.m. Consequently, the defence evidence does not inspire confidence and the same is not worthy of reliance".

We are in agreement with the finding of the trial court that the evidence of the defense witnesses on the question of time of the occurrence is not worth-credence in view of the unimpeachable testimony of P.W. 1, P.W. 5 and P.W. 9 and unchallenged testimony of P.W. 2 and P.W. 3. In our view, the circumstance that the accused Akhtar and Yahia Khan armed with single barrel guns and Abdul Qayum and Ibrahim armed with country-made pistols went to the house of the victim together at 4.00 p.m. on the date of the incident is established beyond doubt.

The next circumstance which the prosecution sought to establish was that all the four accused persons caught hold of the victim and started dragging him towards east of the village. The first informant, Om Prakash (P.W. 1), his mother Smt. Anari Devi (P.W. 5) followed them raising hue and cry and also pleading the accused persons to spare Ayodhya Pandey. All these facts except pleading of the first informant and his mother to the accused persons to spare the victim are stated in the first information report. Both P.W. 1 and P.W. 5 have deposed these facts in their deposition before the Court. Although there are some discrepancies with regard to the manner in which victim was taken to the place of actual firing at him but such inconsistencies, in our view, are not very material considering the fact that both P.W. 1 and P.W. 5 were close relations of the deceased and by witnessing the ghastly murder of their head of the family and bread-earner, they would have been in a state of shock for some time. Such discrepancies, as pointed out by the defence, were, in our view, rightly held by the trial court to be not very material and fatal to the prosecution case. Therefore, in our view the fact so far as abduction of the victim by the four accused persons is concerned, is established by the prosecution evidence.

The learned A.G.A., as already pointed out above, has further drawn our attention to the statements made by P.W. 1 and P.W. 5 during their deposition, which according to him, if believed, would clearly indicate the sharing of the common intention by accused Ibrahim and Abdul Qayum. P.W. 1 has stated in his examination-in-chief that when he and other witnesses were pleading to the accused persons to spare his father, the accused persons had exhorted "Jise bulana ho use bidalo dekhen kaun aakar bachata hai" and that after committing murder, the accused turned towards the complainant and the witnesses and again exhorted "Jo rapat likhayega uska yahi hal hoga". Learned Counsel for the defence contends that the aforesaid statements of P.W. 1 are not mentioned in the first information report and are improvement over the prosecution story and have been made in order to bring the case of the Appellants. Ibrahim and Abdul Qayum within the scope of Section 34, I.P.C. It is true that this part of the statement is not stated in the first information report but at the same time, on careful examination of the evidence of P.W. 1, we find that the witness has not at all been cross-examined with regard to the aforesaid statements made by him in his examination-in-chief. We have already pointed out above that both P.W. 1 and P.W. 5 must have been in a state of great shock and agony and P.W. 1 might have missed to state these facts in the first information report. First information report is not an encyclopedia of the entire facts and circumstances which are sought to be established by the prosecution. So far as the first information report (Ex. Ka.-3) is concerned, we find that it contains all the material facts. Mere omission by P.W. 1 to make a mention of the aforesaid statements in the first information report is inconsequential specially when such a statement is not challenged during cross-examination of P.W. 1. Similarly, our attention has been drawn to the statement of P.W. 5 which is to the following effect:

"Akhtar Alam aur Yahia mulzimon ne mere pati ka banh pakarkar kheencha. Ibrahim aur Abdul Qayum unko pichhe se dhakiyate huye Pooram ki oar le gaya Wahan pahunchkar Ibrahim and Abdul Qayum mere pati ke ek ek banh pakarkar khare hogaye aur Akhtar Alam ua Yahia mulzimon ne mere pati ko bandookhon se maar diya. Mere pati goli khakar mar gaye. Maarkar mulzimon ne galiyan di aur dhamkaya ki agar turn log gavahi doge to tumhari bhi yahi haal hogi."

On a careful scrutiny of the deposition of P.W. 5, we find that the witness has been confronted with her previous statement given to the I.O. so far as her statement of catching hold of the hands by two accused and pushing by two others from behind at the time of abduction from the house of the witness is concerned, but the second part of her statement, viz., accused Ibrahim and Abdul Qayum caught hold one arm each of the husband of the witness whereafter Akhtar and Yahia Appellants fired at her husband goes unchallenged. Learned Counsel for the Appellants contends that there is material discrepancy between the testimony of P.W. 1 and P.W. 5. P.W. 1 does not at all speak of catching hold of the arms of the victim by accused Ibrahim and Abdul Qayum before he was fired at by accused Akhtar and Yahia and on the other hand Smt. Anari Devi (P.W. 5) does not speak about the exhortation by the accused persons before killing Ayodhya Pandey to the effect "call any body who can save him (the victim)". It is true that these discrepancies are there in the statements of two witnesses but at the same time as pointed out above the statements of the witnesses with regard to the alleged improvements go unchallenged. It is a question of power of observation and recollection of facts by the witnesses at the time of their deposition in the Court. The discrepancy pointed out by the learned Counsel for the Appellants does not amount to material contradictions in the testimony of the witnesses. Such discrepancies are always bound to creep in the testimony of the witnesses when they are close relations of the victim and not tutored witnesses. In our view, the circumstance that the accused persons exhorted to call any body who can save Ayodhya Pandey before he was actually done to death and that both Ibrahim and Abdul Qauim had caught hold one arm each of the victim when he was fired at by the remaining two accused, namely, Akhtar Alam and Yahia Khan is established beyond any shadow of doubt.

The evidence of the two witnesses is consistent with regard to the factum that before leaving the scene of occurrence, the accused persons had threatened the complainant and witnesses that they would meet the same end in case a report was lodged or any body deposed against them. It is true that in the first information report the threat extended is not stated in so many terms but the factum of extending of threat is very much stated.

The evidence of P.W. 1 and P.W. 5 with regard to the time of incident is further corroborated by the medical evidence as also by the evidence of P.W. 9 Sadal. The incident is said to have occurred at 4.00 p.m. It has come in the evidence of P.W. 1 that on the date of incident the victim had taken food at about 2.00 p.m. This statement was brought on record during cross-examination of P.W. 1. The medical evidence corroborates this part of the testimony of P.W. 1. As has been pointed out earlier the doctor who held autopsy on the dead body of the victim found semi-digested food material consisting of rice and Dal in the stomach of the deceased. In normal course rice and Dal gets fully digested within 3 to 4 hours after its being taken. Presence of semi-digested food material clearly shows that the death of the victim was caused in less than three hours after his taking of the food. Besides this Sandal (P.W. 9) is a witness who was brought by the accused persons to the house of the deceased. This witness has stated that on the date of incident at about 3.00 p.m. the accused persons had called him and had asked him to supply liquor to them. When the witness disclosed his inability, he was assaulted by the accused persons and his hands were tied behind the back and thereafter all the four accused had taken him to the house of Ayodhya Pandey. He has further corroborated that Akhtar and Yahia were armed with guns and Ibrahim and Abdul Qauim were armed with country-made pistols. The witness further stated that all the four entered the house of Ayodhya Pandey and had brought Ayodhya Pandey out of the house and he got an opportunity to run away. A suggestion had been given to P.W. 1 that Sadal was a servant working in the fields of the victim which suggestion has been denied by P.W. 1. It appears that Sadal is also known by the name of Sadal Briksha but the parentage of Sadal Briksha who worked in the fields of the victim was Dubfear as stated by P.W. 1 whereas the name of the father of P.W. 9 Sadal is Chhotak. P.W. 9 had been put to searching cross-examination and he has explained as to how he knew the accused persons. This witness has also specifically denied to have worked in the field of Ayodhya Pandey. Having carefully gone through the testimony of this witness, we do not find any reason to disbelieve his testimony. On the other hand, his assertion that when he refused to supply liquor to the accused persons, he was beaten by them is corroborated by the medical evidence. The witness was medically examined by the doctor on 11.3.1979 and as many as nine injuries were found on his person. At the time of hearing of the appeal, the defense admitted genuineness of the medical examination report u/s 294, Code of Criminal Procedure Since some doubt was created about the time when these injuries were sustained by witness Sadal alias Sada Briksha, this Court examined Dr. G.D. Barnwal as medical expert who categorically stated that the doctor who examined the injuries of Sada Briksha should have stated that the injuries were about 48 hours old and not that the injuries were sustained within 48 hours. In the opinion of Dr. G.D. Barnwal, the injuries could even be 72 hours old. It is well-settled that the evidence of the doctor with regard to the age of the injuries being only opinion evidence, only estimation about the time can be given by the doctor. He cannot, with certainty, state that the injuries were caused at a particular time and unless opinion given by the doctor is found to be so inconsistent with the prosecution case that it outweighs the ocular evidence, the medical opinion cannot be given precedence over the ocular evidence.

In our view, therefore, there is no substance in the submission of the learned Counsel for the Appellants that Sandal�s injuries create doubt about the time of the incident.

From the foregoing discussion, we find that following facts and circumstances have been established by the prosecution:

(i) the accused Yahia Khan and Akhtar had demanded Rs. 1,000 from the victim about 7 or 8 days prior to the murder of Ayodhya Pandey and on his refusal to accede to their demand, he was threatened by them with an exhortation "tumhare kagqj poore hain" (meaning thereby "he has lived his life") ;

(ii) that on the date of incident at about 4.00 p.m. all the four accused persons armed with fire-arms entered the house of Ayodhya Pandey and took him out of his house and proceeded towards east of the village ;

(iii) that prior to that all the four accused had assembled in village Barahara where they had called witness Sadal alias Sadabriksha and asked him to supply liquor and on his failure to do so he was assaulted by them and was taken to the house of the victim with his hands tied ;

(iv) that the accused persons abducted the victim and forced him to go towards the house of Sheo Ratan in village Barahara Ganjan ;

(v) that the first informant, his mother and other witnesses had followed the accused persons and had been pleading them to spare the victim whereupon the accused persons exhorted to call any body who can save Ayodhya Pandey ;

(vi) that after reaching in front of the house of Sheo Ratan Appellants Ibrahim and Abdul Qauim caught one arm each of Ayodhya Pandey whereas the remaining two Appellants Akhtar and Yahia Khan fired one shot each from close range thereby causing instantaneous death of the victim ; and (vii) that after committing the murder the accused persons threatened the complainant and the witnesses with dire consequences in case a report was lodged or they preferred to give evidence against the accused persons.

The question that arises before us for determination is whether in these circumstances, the accused Appellants Ibrahim and Abdul Qauim could be held guilty of murder with the aid of Section 34, I.P.C. We have already observed above that the intention or sharing of the common intention can be gathered from the facts and circumstances established by the prosecution. In our view, the circumstances that Appellants Ibrahim and Abdul Qauim accompanied the remaining two accused to the house of the victim and that at that time they were armed with deadly weapons, their active participation in abduction of the victim and forcing him to accompany them and thereafter when the close relations pleaded to spare the victim, their exhortation to call any body who could save the victim and then at the time of the actual commission of the offence by their associates, their holding the victim by arms, lead to the irresistible conclusion that both Ibrahim and Abdul Qauim had shared the common intention of committing the murder of Ayodhya Pandey in consequence whereof their associates Yahia and Akhtar had fired at the victim causing his instantaneous death. While arriving at that conclusion we may refer to some judgments of the Apex Court which may be enumerated as below:

Krishnan and another Vs. State of Kerala,

Chinta Pulla Reddy and Others Vs. State of Andhra Pradesh,

Bhupinder Singh and Anr. v. State of Haryana, AIR 1997 SC 642.

Prem Vs. Daula and others,

In Krishnan and another Vs. State of Kerala, , the two accused were hiding behind a tamarind tree and on seeing the victim they jumped out in front of the deceased saying that they had been waiting for him. Thereafter accused Vijay Kumar inflicted a stab injury on the forehead of the deceased. He was caught hold of by one of the witnesses preventing him from further attempt. The victim was trying to escape when other accused pounced upon him and gave successive dagger blows and thereafter both the accused ran away. It was argued before the Apex Court that Appellant Vijay Kumar did not inflict fatal injury and could not be said to have shared common intention to commit murder. The Supreme Court repelled this contention by making following observations:

"So far as Appellant No. 2 is concerned, the argument of Mr. Lalit that his intention to murder has not been established, cannot be accepted. It has been rightly contended by Mr. George that accused No. 2 being a teacher was not supposed to carry a dagger at night and to accompany accused No. 1 also carrying a dagger and wait in darkness for the deceased. The Appellant had given out by proclaiming that they had been waiting for the deceased. It is accused No. 2 who first opened the attack by jumping and it is not unlikely that as he jumped, he could only cause the injury on the forehead of the deceased."

Hansaria in his separate judgment had also observed that "establishment of a overt act is not a requirement of law to allow Section 34 to operate inasmuch this section gets attracted when "a criminal act is done by several persons in furtherance of common intention of all". What has to be, therefore, established by the prosecution is that all the concerned persons had shared the common intention. Court''s mind regarding the sharing of common intention gets satisfied when overt act is established qua each of the accused. But then, there may be a case where the proved facts would themselves speak of sharing of common intention res limas loquitur."

In Chanta Pulla Reddy''s case, the facts were that two accused entered the house of the deceased and were seen standing near the cot towards the head of the deceased while accused 3 to 6 were standing on the southern side of that cot. All the accused were armed. After saying as to what they were waiting for, accused No. 1 stabbed the deceased twice in his chest with a knife. No other accused, however, caused any injury to the deceased. Thereafter they ran away after threatening the prosecution witnesses. The Apex Court after assessing the evidence on record and considering the facts and circumstances of the case held as follows:

"The testimony of P.W. 1, P.W. 2 and P.W. 3 who are the natural witnesses and are the eyewitnesses is consistent insofar as the presence of A-1 and A-2 at the time of occurrence is concerned. They have clearly deposed about the manner in which A-l and A-2 were standing towards the head of the cot armed with knives as also how A-l stabbed the deceased twice on his chest. The witnesses knew both A-l and A-2 and had identified them clearly. Their testimony leaves no manner of doubt to hold that A-2 along with A-l had come armed with knives to the house of the deceased and both were present at the middle of the night near the head of the cot on which the deceased was lying when A-1 stabbed him twice in the chest and thereafter left together. Both A-l and A-2 had thus, shared the common intention of causing the death of the deceased, as according to the medical evidence, the two stab injuries inflicted on the deceased on his chest were sufficient in the ordinary course of nature to cause death."

In Bhupinder Singh''s case, the facts were that on getting the information that the accused persons were teasing and misbehaving with the ladies accompanying P.W. 7 who had come to see a movie at the cinema, the victim who was Head Constable and was on duty went inside the hall and brought all the six accused out. He along with another Head Constable took the accused to task for their misbehavior and enraged thereby some of the accused started hurling abuses on the two Head Constables while other accused tried to run away. They were chased by the Head Constables and the Manager of the Cinema Hall. While being so chased Appellant Bhupinder Singh jumped into a tanker lorry and picked up a wooden balli from its tool box. Roshan Lal, the other Appellant, then snatched that balli from Bhupinder Singh and inflicted a blow with the same on the head of the deceased while some of the other accused persons including Bhupinder Singh started assaulting the victim with kicks and blows. The victim died as a result of the injuries sustained by him. The Apex Court, on consideration of the evidence and the arguments advanced on behalf of Bhupinder Singh held as follows:

"It was next contended by him that even if it was assumed that the entire prosecution case was true still Bhupinder Singh could not be held guilty for the injury caused by Roshan Lai on the head of Balbir Singh with the aid of Section 34, I.P.C. for the only allegation against him in this regard was that he took out the ball from the tool box of a tanker. We do not find any substance in this contention also. When the totality of the circumstances culminating in the death of Balbir Singh is taken into account there cannot be any escape from the conclusion that Bhupinder Singh also shared a common intention with Roshan Lalfor causing the death of Balbir Singh. The evidence on record unmistakably proves that while discharging his duties at the Cinema hall H.C. Ram Het (P.W. 8) had asked the accused persons not to misbehave with the ladies who were enjoying the movie. In spite of repeated requests made by the Manager of the cinema hall and the Head Constable the accused persons did not desist from behaving in an objectionable manner. Then again in discharge of his duties when he along with H.C. Balbir Singh, whose services he requisitioned, tried to apprehend the Appellants, Bhupinder Singh jumped into the lorry tanker and brought out the wooden balli obviously to assault the Head Constables. Therefore, simply because he did not assault the deceased with the balli but Roshan Lai did after snatching it from him it cannot be said that Bhupinder Singh was not a party thereto."

In the last case of Prem v. Daula and Ors., the facts were that the four accused went to the scene of occurrence, out of whom one was carrying a Ranpi, two were armed with lath is and one Balraj was not having any weapon. All the four forcibly entered into the house of the victim whereupon accused No. 1 shouted at Ishwar and challenged as to why he had pushed him out of the house of Giani. Thereupon accused Nos. 3 and 4 caught hold of the victim and accused No. 1 assaulted him with the Ranpi and accused No. 2 gave him lathe blow on the left hand. Accused No. 1 again struck a Ranpi blow on the right hand of the victim. Mother of the victim tried to intervene but she too was assaulted by lathe by accused No. 2. The Apex Court while disposing of the appeal observed as follows:

"We accept the evidence of these three eye-witnesses and hold that the Ranpi (Ex. P. 6) was the weapon of assault used by A-1 and had caused the injuries on the person of Ishwar which were proved to be fatal. The trial court was also right in convicting accused Nos. 2 to 4 with the aid of Section 34, I.P.C. as it is quite clear from the evidence on record that all the four accused came together and were armed with weapons except A-4 ; trespassed into the house of Ishwar and thereafter assaulted him. This evidence, in our opinion, is quite sufficient to prove the complicity of accused Nos. 2 to 4 with the aid of Section 34, I.P.C. for the substantive offence of committing murder of Ishwar."

Thus it would be clear that sharing of the common intention has to be gathered from the facts and circumstances of each case and in each case, it is not necessary that the accused might have participated in actual assault upon the victim. In the instant case, on a careful consideration of the established facts and circumstances, we are of the considered opinion that the facts and circumstances clearly point out that the accused had prior meeting of mind and had come prepared for committing murder of Ayodhya Pandey and two of the assailants caused fatal injuries to the victim in furtherance of common intention of all. Therefore, in our view the submission of the learned Counsel for the Appellants that Ibrahim and Abdul Qauim Appellants could not be fastened with the liability of committing murder so as to make them liable for punishment u/s read with Section 34, I.P.C. cannot be accepted.

While discussing the evidence above, we have already analyses and found that the evidence of the prosecution witnesses, namely, P.W. 1 Om Prakash. P.W. 5 Smt. Anari Devi coupled with the evidence of P.W. 9 Sadal and medical evidence is worth credence and has been rightly acted upon by the trial court.

Consequently, Criminal Appeal Nos. 1327 of 1980 filed on behalf of Ibrahim, 1413 of 1980 filed on behalf Yahia Khan and 1458 of 1980 filed on behalf of Abdul Qauim, fail and are hereby dismissed.

Criminal Appeal No. 1327 of 1980, filed on behalf of Akhtar has abated due to the death of the Appellant.

The Appellants were on bail. Appellant Abdul Qauim, however, misused the privilege of bail granted to him. His bail was cancelled and he could be apprehended after vigorous efforts by the police. He is in jail. He shall serve out the sentence awarded by the trial court.

Appellants Yahia and Ibrahim shall surrender forthwith to serve out the sentence awarded to them by the trial court. Their bail bonds are cancelled.