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CASE NO.: Appeal (crl.)  284-286 of 2003

PETITIONER: Dani Singh and Ors.                                              

RESPONDENT: State of Bihar                                                   

DATE OF JUDGMENT: 12/03/2004

BENCH: DORAISWAMY RAJU & ARIJIT PASAYAT

JUDGMENT: J U D G M E N T

ARIJIT PASAYAT,J.

A Division Bench of the Patna High Court found  the  appellants guilty of offences punishable under Section 302  read with Section 34 of the Indian Penal Code, 1860 (in  short the ’IPC’). In addition, appellants Lakhan Singh,  Janardan Singh, Ram Janam Singh, Dani Singh, Raghu Singh,  Ram Charitar Singh and Chandar Singh were found guilty of  offence punishable under Section 201 IPC and sentenced each  to undergo five rigorous imprisonment with a fine of  Rs.3,000/- with default stipulation. It directed that the  fine on realisation was to be paid to the informant by way  of compensation. Appellant Lakhan Singh was additionally  convicted for offence punishable under Section 436 IPC to  undergo life imprisonment.

       The present appeals have been filed by 21 persons.  Twenty seven persons were named in the FIR and charge sheet  was filed initially against 24 persons. In terms of Section  319 of the Code of Criminal Procedure, 1973 (in short the  ’Code’), three more persons were added. Twenty seven persons  were convicted by the trial Court and all of them filed  appeals before the High Court. It has to be noted, as stated  by learned counsel for the appellants, that one of them  Lakhan Singh has served out the sentence, and two others  namely Balinder Singh and Gaya Singh were absconding.  Three  of the accused persons died during pendency of the appeal  before the High Court.  

       Prosecution version which led to the trial in a  nutshell is as follows:                          On 6.7.1983, informant Ramu Yadav (PW-11), after easing  was returning to his house at about 8 a.m. and his uncle  Kishun Yadav (hereinafter described as ’deceased D-1’) at  that time was also returning to his house from the northern  direction and he was ten yards ahead of the informant. When  the informant and the deceased Kishun reached a lane near  the house of Sadhu Kahar, the informant saw a number of  persons variously armed with Saif, Garasa, Bhala, guns etc.  coming out from the Dalan of Bhuneshwar Singh who all  challenged deceased Kishun and attacked him.  Appellant  Lakhan Singh, who was carrying a bag, took out a bomb from  his bag and hurled it on deceased Kishun, who after

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receiving injury, managed to enter the house of his cousin  Phekju Yadav (PW-6). Following him, all the appellants  alongwith Biro Singh, Pragash Singh and Ram Singh (all the  three since dead) along with 15 to 20 others, variously  armed entered the house of Pheku Yadav. The informant also,  following the appellants and their companions, entered the  house of his uncle Pheku Yadav (PW-6).  In the meantime,  Gopi Yadav, father of informant (hereinafter referred to as  ’deceased D-2’) also reached there and, thereafter both  deceased, Gopi and Kishun climbed on the Matkmotha (box  room) in order to save their lives.  Appellants Lakhan  Singh, Ram Charitar Singh, Ram Janam Singh, Chhotan Singh,  Raghu Singh, Balindra Singh, Manoj Singh, Bhola Singh, Baban  Singh, Nandu Singh, Yado Singh and ten to fifteen unknown  persons also, along with weapons, climbed from outside to  the roof of house and other appellants remained in the  courtyard and verandah of the house. The appellants, who had  climbed went to Matkotha, started assaulting both the  deceased with guns, Bhala, Saif etc. The appellants, who had  gone on the roof of the house, uprooted the tiles and bamboo  sticks of Matkotha and appellant Lakhan Singh, after  sprinkling kerosene oil on the roof, set fire and,  thereafter the appellants, who had climbed on Matkotha,  dragged deceased Kishun and Gopi to the verandah where they,  after piercing Garasa, Bhala, Saif, killed them. Thereafter,  appellant Raghu Singh, Janardhan Singh, Ram Charitar Singh,  Ram Janam Singh, Dani Singh, Chander Singh, Lakhan Singh  along with co-accused Biro Singh carried the dead bodies on  a cot towards eastern side of village and other appellants,  after scrapping the blood which had fallen on the ground  with straw, put it in a nearby well and they also washed the  blood drops from the walls of the house by water and mud  and, thereafter, they also went following the dead bodies.  After some time, the informant saw smoke and flames of fire  rising from the side of eastern boundary of his village  where the appellants had burnt the dead bodies. They  remained at the place of burning for about two hours, and  thereafter they again came back to the houses of informant  (PW-11) and Pheku Yadav (PW-6) and took away rice, wheat,  gram, clothes, ornaments, pots etc.  The occurrence was  witnessed by female members of the family of informant  including his mother, aunt, sister, wife of brother of Pheku  Yadav (PW-6) and number of other villagers.  Old enmity,  giving rise to number of cases between the prosecution party  and appellants, was stated to be the motive of the  occurrence.  The fardbayan of informant was recorded on the  day of occurrence at 8.30 p.m. by Sub Inspectort Uzair Alam  (PW-13). The informant, in his fardbayan stated that because  appellants did not allow him to leave the house, he could  not go to the Police Station earlier. On the basis of  fardbayan of informant, a case under Sections 147, 148, 149,  302, 201, 436, 380, Indian Penal Code, Section 27 of Arms  Act, 1959 (in short ’Arms Act’) and Sections 3, 4, 5 of  Explosives Substances Act, 1908 (in short ’Explosives Act’)  against all the twenty four appellants alongwith Biro @  Birendra Singh, Pragash Singh and Ram Singh and fifteen to  twenty unknown was registered and police, after  investigation, submitted charge sheet against the appellants  and Biro @ Birendra, Pragash Singh and Ram Singh.  Charges  under Sections 302/149, 201 and 380, Indian Penal Code were  framed against the appellants and Biro @ Birendra, Pragash  Singh and Ram Singh and after trial, the appellants were  found guilty and were convicted and sentenced, as indicated   above. Biro @ Birendra, Pragash Singh and Ram Singh were  also convicted and sentenced to undergo rigorous

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imprisonment for life under Section 302 read with Section  34, Indian Penal Code. Biro Singh @ Birendra was further  convicted and sentenced to undergo rigorous imprisonment for  five years and to pay a fine of Rs.3000/-. All the aforesaid  three persons died during the pendency of the appeal before  the High Court. The accused persons pleaded that on the date  of occurrence appellants Nawal Singh and Indu Singh were not  present in the village. Prior to the alleged occurrence two  persons namely Saudhi Singh and Arjun were murdered and  after their murder, both the deceased had left their village  with the family members and were living somewhere else.  Therefore, they were not living in the village where they  claimed to have been murdered. The accused persons have been  implicated on the account of previous enmity. Four witnesses  were examined to further this version.  In order to prove  its accusations, prosecution examined 15 witnesses out of  whom Ramu Yadav (PW-11) is the informant and deceased Kishun  Yadav and Gopi Yadav (hereinafter referred to as D-1 and D- 2) were his uncle and father respectively. It was claimed  that apart from PW-11, Kishun Rajwar (PW-1), Lalo Mahto (PW- 2), China Devi (PW-3) and Kamli Devi (PW-10) were  eyewitnesses.  During investigation, blood stained soil,  burnt tiles and remnants of exploded bombs were seized from  a lane near to the house of Shiv Nandan Kumar and a house of  Pheku Mahto (PW-6). Police also recovered straws from the  well of PW-6 and seized burnt wood, tender bamboo and pieces  of woods and bones from the place known as Hadsai pyne, and  scattered grains from the house of Pheku Mahto (PW-6). The  trial Court found the evidence of the witnesses to be  credible and cogent. It noticed that though China Devi (PW- 3) and Kamli Devi (PW-10) were related to the deceased,  Kishun Rajwar (PW-1) and Lalo Mahto (PW-2) were independent  witnesses who were in no way related to the deceased  persons.  They had proved their presence. Placing reliance  on their evidence the accused persons as noted above were  found guilty.  

       In appeal, the conclusions of the trial Court were  affirmed. It is to be noted that though a plea of alibi was  raised by two of the accused persons, the evidence tendered  to prove the alibi was discarded finding it to be unreliable  and irrelevant.     

       Learned counsel for the appellants submitted that the  evidence on record does not justify any conviction. The  prosecution version was full of contradictions and  exaggerations. Though PWs 1 and 2 were held to be not  related to the deceased persons, the accepted position was  that they were friendly with the deceased and other eye- witnesses. The genesis of the dispute has been suppressed as  the first information report regarding the occurrence given  by Rajendra Mahto (PW-25), as admitted by the Investigating  Officer has not been taken note of. The same has been  suppressed and an anti dated manipulated FIR has been  brought on record. It has not been explained as to why both  the deceased would run to the house of PW-6. If the  prosecution version is accepted that a bomb was thrown on  deceased Kishun, and he ran towards to his house, there is  no reason indicated as to why the deceased Gopi would also  run to the house of PW-6. It is strange that the  eyewitnesses also went to the house of PW-6. Twenty seven  accused persons were stated to be separately armed in a mob  out of 40-50. It is a very exaggerated scenario presented by  the prosecution that the accused persons killed the deceased  after dragging them out from a place where they were hiding,

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several persons carried them on a cot and burnt the bodies  and wiped off the blood with hay and threw them to the well  of PW-6. When the accusation of looting, punishable under  Section 380 IPC has not been established, the exaggeration  is clearly patent. Actual killing has not been attributed to  anybody in particular. There was considerable delay in  lodging the FIR. When the accused persons have stated to  have declared that no other person would be touched, there  was no reason for the apprehension as stated by the eye- witnesses for lodging information late. A totally improbable  case has been foisted. Some of the witnesses have said about  explosion of three or four bombs; but others have said about  only one and latter is the prosecution version. The story of  common intention or common object as introduced by the  prosecution has not been established. Nothing has been shown  as to how and when the alleged unlawful assembly was formed.  Actual participation has not been attributed.  The so-called  eye-witnesses have not identified all accused persons, and  each has only identified some. The plea of PW-1 that he  followed the accused persons when they were carrying the  dead bodies does not inspire confidence. No explanation has  been offered as to why the witnesses did not go to the  police station though the burning of the bodies allegedly  took more than one hour. It has come on evidence that a live  bomb was found in the house of PW-6. There is no evidence as  to who put it there. The evidence of PW-6 and PW-11 do not  reconcile with each other. There was no call or exhortation,  which is associated with a case of unlawful assembly or  common intention or common object. Some of the eyewitnesses  said that they came out on hearing the explosion. If that be  so, the accused persons who did not do any particular overt  act may have also come out on hearing the explosion. It is  the prosecution version that the police came on hearing a  rumor about some incident. It has not been established as to  what was the source and why the police came.  

       In response, learned counsel for the State submitted  that it is not a case where there was any animosity,  individual in character. On the contrary the evidence  clearly established and proved, as noticed by the Courts  below, in a faction ridden village the assaults were on  account of faction fighting. The so-called information given  by Rajendra Mahto has been discarded by the trial Court.  Even approach to this Court did not bring any relief to the  appellants who during trial had tried to press into service  such a plea. If he was such a material witness, no reason  has been indicated by the appellants as to why he could not  be examined as a defence witness. The evidence of IO clearly  says that no such person was there. PW-11’s evidence is  clear and cogent that he was behind the deceased Kishun and  when on account of the bomb explosion, the deceased Kishun  ran out of anxiety, the other deceased followed him. The IO  has found the remnants of explosion. There is no  inconsistency in the evidence. The houses of the deceased  persons were in close vicinity. Deceased Gopi’s house was at  a distance of 7/8 yards from the place where the first bomb  exploded. It is a natural human conduct that somebody would   go out after hearing the sound of explosion. In this case  the deceased Gopi was behind him and others PWs came late.   There was nothing unusual and unnatural in going to PW-6’s  house. All the witnesses have identified and stated about  the presence of the accused persons in PW-6’s house. It is  immaterial whether one witness identifies all, or some of  them identify some of the accused persons. The evidence is  consistent so far as the identification of the accused

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persons, and the weapons carried by them are concerned.  There was positive enmity of the accused persons with the  deceased persons.  It is the prosecution version that 11  persons climbed to drag out the deceased persons from the  place where they were hiding. There has been even no  suggestion given that others who did not scale the roof  either stopped them from doing it or withdrew. That may have  to some extent for argument sake substantiated the plea of  appellants that some of them were by-standers. It is on  evidence that while some of them scaled the roof, others  were waiting on the verandah. The IO had recovered blood  stained hay from the well. Eight of the accused persons  carried the dead bodies of deceased on a cot for the purpose  of burning. There is nothing on record to throw doubt about  the objective findings recorded by the IO. It is established  that the accused persons who were cleaning the bloodstains  also joined the group who had carried the dead bodies for  the purpose of burning. The evidence is clear in respect of  the three places of occurrence i.e. (i) the place where the  bomb was thrown on deceased Kishun, (ii) the house of PW-6  and (iii) the place of burning. It is relevant to note that  the place where the dead bodies were burnt was not a normal  burial place. The IO had found that a pit was dug and smell  of kerosene oil was there. It is a case where PWs were  threatened by the accused persons, if they tried to rescue  the deceased persons. The evidence of PW-6 that when he  requested the accused persons not to assault the deceased,  he was told that he should not interfere otherwise he would  also be killed. The evidence clearly shows that the targets  were the deceased persons. Evidence of PW-10 shows that when  she tried to save the accused persons, the accused persons  specifically told her that the deceased were the target and  others should not interfere. The police station was 32 K.M.  away. If the defence version is that the deceased and the  eyewitnesses were ill-disposed towards them, there is no  reason to falsely implicate so many persons. The village  being a faction ridden one, there is no scope for any  independent witnesses coming forward.  

       It is to be noted that definite roles have been  attributed to the accused persons. Eleven of them have  scaled the roof and dragged out the deceased. Eight of them  carried the dead bodies for the purpose of burning. So far  as cleaning the blood and throwing dead bodies to the well  etc. is concerned the accusations are general in nature.  

       Though the evidence of PWs 1 and 2 were attacked on the  ground that it was partisan, we find nothing has been  brought on record to cast any doubt on the veracity of their  statement. Merely because the witnesses are related or  friendly with the deceased, that will not be a ground to  discard their evidence. The only thing the Court is required  to do is to carefully scrutinise the evidence and find out  if there is scope for taking a view about false implication.  Further since there are some exaggerations or minor  discrepancies, that would not be sufficient to cast doubt on  the evidence.  

       In the instant case, the eyewitnesses have  categorically stated in detail the manner of assault and the  roles played by the accused persons. It is also a common  evidence that the targets were the deceased persons. When  large number of persons armed with weapons do a series of  acts by throwing bombs, dragging out the victims,  indiscriminatingly assaulting them, burning the dead bodies,

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it is but normal and natural that fear psychosis would  develop. This is what precisely has happened, if the version  of the eyewitnesses is accepted. PWs 6 and 10 apart from  other eyewitnesses have categorically stated that when they  tried to come to the rescue of the deceased, they were  threatened and asked not to interfere lest they would be  killed.  

       Sections 34 and 149 IPC deal with common intention and  common object respectively.  

The emphasis in Section 149 IPC is on the common object  and not on common intention.  Mere presence in an unlawful  assembly cannot render a person liable unless there was a  common object and he was actuated by that common object and  that object is one of those set out in Section 141.  Where  common object of an unlawful assembly is not proved, the  accused persons cannot be convicted with the help of Section  149.  The crucial question to determine is whether the  assembly consisted of five or more persons and whether the  said persons entertained one or more of the common objects,  as specified in Section 141.  It cannot be laid down as a  general proposition of law that unless an overt act is  proved against a person, who is alleged to be a member of  unlawful assembly, it cannot be said that he is a member of  an assembly.  The only thing required is that he should have  understood that the assembly was unlawful and was likely to  commit any of the acts which fall within the purview of  Section 141.  The word ’object’ means the purpose or design  and, in order to make it ’common’, it must be shared by all.   In other words, the object should be common to the persons,  who compose the assembly, that is to say, they should all be  aware of it and concur in it.  A common object may be formed  by express agreement after mutual consultation, but that is  by no means necessary.  It may be formed at any stage by all  or a few members of the assembly and the other members may  just join and adopt it. Once formed, it need not continue to  be the same.  It may be modified or altered or abandoned at  any stage.  The expression ’in prosecution of common object’  as appearing in Section 149 have to be strictly construed as  equivalent to ’in order to attain the common object’. It  must be immediately connected with the common object by  virtue of the nature of the object.  There must be community  of object and the object may exist only up to a particular  stage, and not thereafter.  Members of an unlawful assembly  may have community of object up to certain point beyond  which they may differ in their objects and the knowledge,  possessed by each member of what is likely to be committed  in prosecution of their common object may vary not only  according to the information at his command, but also  according to the extent to which he shares the community of  object, and as a consequence of this the effect of Section  149, IPC may be different on different members of the same  assembly.

       ’Common object’ is different from a ’common intention’  as it does not require a prior concert and a common meeting  of minds before the attack.  It is enough if each has the  same object in view and their number is five or more and  that they act as an assembly to achieve that object.  The  ’common object’ of an assembly is to be ascertained from the  acts and language of the members composing it, and from a  consideration of all the surrounding circumstances.  It may  be gathered from the course of conduct adopted by the  members of the assembly.  What the common object of the

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unlawful assembly is at a particular stage of the incident  is essentially a question of fact to be determined, keeping  in view the nature of the assembly, the arms carried by the  members, and the behaviour of the members at or near the  scene of the incident.  It is not necessary under law that  in all cases of unlawful assembly, with an unlawful common  object, the same must be translated into action or be  successful. Under the Explanation to Section 141, an  assembly which was not unlawful when it was assembled, may  subsequently become unlawful.  It is not necessary that the  intention or the purpose, which is necessary to render an  assembly an unlawful one comes into existence at the outset.   The time of forming an unlawful intent is not material. An  assembly which, at its commencement or even for some time  thereafter, is lawful, may subsequently become unlawful. In  other words it can develop during the course of incident at  the spot eo instanti.

Section 149, IPC consists of two parts.  The first part  of the section means that the offence to be committed in  prosecution of the common object must be one which is  committed with a view to accomplish the common object.  In  order that the offence may fall within the first part, the  offence must be connected immediately with the common object  of the unlawful assembly of which the accused was member.   Even if the offence committed is not in direct prosecution  of the common object of the assembly, it may yet fall under  Section 141, if it can be held that the offence was such as  the members knew was likely to be committed and this is what  is required in the second part of the section.  The purpose  for which the members of the assembly set out or desired to  achieve is the object.  If the object desired by all the  members is the same, the knowledge that is the object which  is being pursued is shared by all the members and they are  in general agreement as to how it is to be achieved and that  is now the common object of the assembly.  An object is  entertained in the human mind, and it being merely a mental  attitude, no direct evidence can be available and, like  intention, has generally to be gathered from the act which  the person commits and the result therefrom.  Though no hard  and fast rule can be laid down under the circumstances from  which the common object can be culled out, it may reasonably  be collected from the nature of the assembly, arms it  carries and behaviour at or before or after the scene of  incident.  The word ’knew’ used in the second branch of the  section implies something more than a possibility and it  cannot be made to bear the sense of ’might have been known’.  Positive knowledge is necessary. When an offence is  committed in prosecution of the common object, it would  generally be an offence which the members of the unlawful  assembly knew was likely to be committed in prosecution of  the common object. That, however, does not make the converse  proposition true; there may be cases which would come within  the second part but not within the first part. The  distinction between the two parts of Section 149 cannot be  ignored or obliterated.  In every case it would be an issue  to be determined, whether the offence committed falls within  the first part or it was an offence such as the members of  the assembly knew to be likely to be committed in  prosecution of the common object and falls within the second  part. However, there may be cases which would be within  first offences committed in prosecution of the common  object, but would be generally, if not always, with the  second, namely, offences which the parties knew to be likely  committed in the prosecution of the common object.  (See

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Chikkarange Gowda and others v. State of Mysore  (AIR 1956  SC 731.)

       The other plea that definite roles have not been  ascribed to the accused and, therefore, Section 149 is not  applicable, is untenable. A 4-Judge Bench of this Court in  Masalti and Ors. v. State of U.P. (AIR 1965 SC 202) observed  as follows:

       "Then it is urged that the evidence  given by the witnesses conforms to the same  uniform pattern and since no specific part  is assigned to all the assailants, that  evidence should not have been accepted.   This criticism again is not well founded.  Where a crowd of assailants who are members  of an unlawful assembly proceeds to commit  an offence of murder in pursuance of the  common object of the unlawful assembly, it  is often not possible for witnesses to  describe accurately the part played by each  one of the assailants.  Besides, if a large  crowd of persons armed with weapons assaults  the intended victims, it may not be  necessary that all of them have to take part  in the actual assault.  In the present case,  for instance, several weapons were carried  by different members of the unlawful  assembly, but it appears that the guns were  used and that was enough to kill 5 persons.  In such a case, it would be unreasonable to  contend that because the other weapons  carried by the members of the unlawful  assembly were not used, the story in regard  to the said weapons itself should be  rejected.  Appreciation of evidence in such  a complex case is no doubt a difficult task;  but criminal courts have to do their best in  dealing with such cases and it is their duty  to sift the evidence carefully and decide  which part of it is true and which is not."

       To similar effect is the observation in Lalji v. State  of U.P. (1989 (1) SCC 437). It was observed that:

       "Common object of the unlawful  assembly can be gathered from the nature of  the assembly, arms used by them and the  behaviour of the assembly at or before the  scene of occurrence. It is an inference to  be deduced from the facts and circumstances  of each case."                   In State of U.P. v. Dan Singh and Ors. (1997 (3) SCC  747) it was observed that it is not necessary for the  prosecution to prove which of the members of the unlawful  assembly did which or what act. Reference was made to  Lalji’s case (supra) where it was observed that "while  overt act and active participation may indicate common  intention of the person perpetrating the crime, the mere  presence in the unlawful assembly may fasten vicariously  criminal liability under Section 149".

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       The legality of conviction by applying Section 34 IPC  in the absence of such charge was examined in several cases.  In Willie (William) Slaney v. State of Madhya Pradesh  (AIR  1956 SC 116) it was held as follows:

       "Sections 34, 114 and 149 of the  Indian Penal Code provide for criminal  liability viewed from different angles as  regards actual participants, accessories and  men actuated by a common object or a common  intention; and the charge is a rolled up one  involving the direct liability and the  constructive liability without specifying  who are directly liable and who are sought  to be made constructively liable.

       In such a situation, the absence of a  charge under one or other of the various  heads of criminal liability for the offence  cannot be said to be fatal by itself, and  before a conviction for the substantive  offence, without a charge, can be set aside,  prejudice will have to be made out. In most  of the cases of this kind, evidence is  normally given from the outset as to who was  primarily responsible for the act which  brought about the offence and such evidence  is of course relevant".

       The above position was re-iterated in Dhanna etc. vs.  State of Madhya Pradesh (AIR 1996 SC 2478).    

The Section really means that if two or more persons  intentionally do a common thing jointly, it is just the same  as if each of them had done it individually. It is a well  recognized canon of criminal jurisprudence that the Courts  cannot distinguish between co-conspirators, nor can they  inquire, even if it were possible as to the part taken by  each in the crime. Where parties go with a common purpose to  execute a common object each and every person becomes  responsible for the act of each and every other in execution  and furtherance of their common purpose; as the purpose is  common, so must be the responsibility. All are guilty of the  principal offence, not of abetment only. In combination of  this kind a mortal stroke, though given by one of the party,  is deemed in the eye of law to have been given by every  individual present and abetting. But a party not cognizant  of the intention of his companion to commit murder is not  liable, though he has joined his companion to do an unlawful  act. Leading feature of this Section is the element of  participation in action. The essence of liability under this  Section is the existence of a common intention animating the  offenders and the participation in a criminal act in  furtherance of the common intention. The essence is  simultaneous consensus of the minds of persons participating  in the criminal action to bring about a particular result  (See Ramaswami Ayyanagar and Ors. v. State of Tamil Nadu  (AIR 1976 SC 2027). The participation need not in all cases  be by physical presence. In offences involving physical  violence, normally presence at the scene of offence may be  necessary, but such is not the case in respect of other  offences when the offence consists of diverse acts which may  be done at different times and places. The physical presence  at the scene of offence of the offender sought to be

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rendered liable under this Section is not one of the  conditions of its applicability in every case. Before a man  can be held liable for acts done by another, under the  provisions of this Section, it must be established that (i)  there was common intention in the sense of a pre-arranged  plan between the two, and (ii) the person sought to be so  held liable had participated in some manner in the act  constituting the offence. Unless common intention and  participation are both present, this Section cannot apply.

       ’Common intention’ implies pre-arranged plan and acting  in concert pursuant to the pre-arranged plan. Under this  Section a pre-concert in the sense of a distinct previous  plan is not necessary to be proved. The common intention to  bring about a particular result may well develop on the spot  as between a number of persons, with reference to the facts  of the case and circumstances of the situation. Though  common intention may develop on the spot, it must, however,  be anterior in point of time to the commission of offence  showing a pre-arranged plan and prior concert. (See Krishna  Govind Patil v. State of Maharashtra (AIR 1963 SC 1413). In  Amrit Singh and Ors. v. State of Punjab (1972 Crl.L.J. 465  SC) it has been held that common intention pre-supposes  prior concert.  Care must be taken not to confuse same or  similar intention with common intention; the partition which  divides their bonds is often very thin, nevertheless the  distinction is real and substantial, and if overlooked will  result in miscarriage of justice.  To constitute common  intention, it is necessary that intention of each one of  them be known to the rest of them and shared by them.  Undoubtedly, it is a difficult thing to prove even the  intention of an individual and, therefore, it is all the  more difficult to show the common intention of a group of  persons. But however difficult may be the task, the  prosecution must lead evidence of facts, circumstances and  conduct of the accused from which their common intention can  be safely gathered. In Magsogdan and Ors. v. State of U.P.  (AIR 1988 SC 126) it was observed that prosecution must lead  evidence from which the common intention of the accused can  be safely gathered. In most cases it has to be inferred from  the act, conduct or other relevant circumstances of the case  in hand. The totality of the circumstances must be taken  into consideration in arriving at a conclusion whether the  accused had a common intention to commit offence for which  they can be convicted. The facts and circumstances of cases  vary and each case has to be decided keeping in view of the  facts involved. Whether an act is in furtherance of the  common intention is an incident of fact and not of law. In  Bhaba Nanda Barma and Ors. v. The State of Assam (AIR 1977  SC 2252) it was observed that prosecution must prove facts  to justify an inference that all participants of the acts  had shared a common intention to commit the criminal act  which was finally committed by one or more of the  participants. Mere presence of a person at the time of  commission of an offence by his confederates is not, in  itself sufficient to bring his case within the purview of  Section 34, unless community of designs is proved against  him (See Malkhan and Anr. v. State of Uttar Pradesh (AIR  1975 SC 12). In the Oxford English Dictionary, the word  "furtherance" is defined as ’action of helping forward’.  Adopting this definition, Russel says that "it indicates  some kind of aid or assistance producing an effect in  future" and adds that any act may be regarded as done in  furtherance of the ultimate felony if it is a step  intentionally taken, for the purpose of effecting that

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felony. (Russel on Crime 12th Edn. Vol.I pp.487 and 488).  In Shankarlal Kacharabhai and Ors. v. The State of Gujarat  (AIR 1965 SC 1260) this Court has interpreted the word  "furtherance" as ’advancement or promotion’.

       The plea that some of the accused persons did not  commit any overt act would really of no consequence. They  were not mere sightseers as claimed. There is nothing to  show that they had dissuaded the persons from committing the  criminal act or withdrew at any point of time during the  course of the incident constituting by itself or as a step  in furtherance of the ultimate offence. There is nothing  unusual in deceased Gopi running after the deceased Kishun  and other eyewitnesses. In order to ascertain as to what was  the cause of the explosion and to run after the deceased  seeing him towards house of PW-6. The eyewitnesses have  identified the accused persons and have stated about their  presence inside the house of PW-6. There is no discrepancy  so far as the identification is concerned and about the  weapons carried by the identified accused persons. It has  also come in evidence that the targeted victims were the  deceased persons with whom the animosity is admitted. The  objective findings recorded by the IO on spot verification  also are in line with the evidence of eyewitnesses.  

So far as the absence of any independent witness is  concerned, the evidence of PW-6 is very relevant. He has  stated that the accused persons were surrounding the village  after the incident. In the village Malti there are 100  houses out of which 5 to 6 houses are of Yadavs, 15 to 16  are of Bhumihars and people of other castes are also there.  Before the present occurrence, Arjun and Saudhi who were  Bhumihars by caste were killed. Yadavs of the village were  accused of the murder and the deceased Kishun and Gopi were  the main accused.  Accused Lakhan is the brother of deceased  Saudi Singh and Nandu Singh is the son of Arjun Singh.  It  has to be noted further that though the eyewitnesses were  examined at length in the cross-examination nothing material  to belie their credibility or discard their evidence was  brought out.                  Looked at from any angle, the impugned judgment suffers  from no infirmity to call for any interference. The appeals  are dismissed.