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4. Heard Shri Rajiv Lochan Shukla, learned Amicus Curiae, ably assisted by Shri Shashank Pandey, learned counsel for the appellant and Shri L.D. Rajbhar and Mr. Murtaza Ali, learned AGAs for the State.

5. Learned counsel for the appellant mainly argued that the main allegation of causing knife injury to the deceased was against the co-accused Narendra Kumar, against whom the appeal has already been abated. The appellant-Vijai @ Babban was assigned the role of exhortation, only.

6. He next argued that prosecution has failed to establish that the present appellant had shared common intention with the principal offender, which was essential to prove to bring home the charge against the present appellant, of committing the murder of the deceased in furtherance of common intention.

7. He further argued that the presence of the appellant is also not proved beyond reasonable doubt, inasmuch as, had the appellant been there and had shared common intention to commit the murder of deceased, no reason appears why he would not have assaulted the deceased, himself.

8. Lastly, he argued that mere presence of appellant at the spot and utterance of the word (MARO SALE KO) can not reflect common intention. Such type of words are commonly used even in a trivial nature of altercation, which do not necessary suggest an intention to kill the person, rather these words may imply the commission of simple 'marpeet', particularly, when the prosecution has failed to prove that both the accused reached at the place of occurrence with premeditation of mind.

24. One another aspect, on which we are reluctant to believe on the theory of prosecution that the present appellant had a common intention to commit the murder of Bashir, is that the present appellant had not assaulted the deceased, even though he was also carrying a knife as alleged by the prosecution witnesses. If the act of committing the murder of the deceased was to be done solely by Narendra, it may not be believed that the present appellant had shared common intention with the co-accused. Though in some circumstances, facilitation by one accused to other, may be in furtherance of common intention but in the present case the role of facilitation which is alleged to have been given to the present appellant could not be proven free from doubt. Thus, we are of view that the presence of present appellant on spot is proved but we are not inclined to accept that the present appellant had shared any common intention to commit the murder of the deceased, from before the two parties met up, by chance.

(emphasis supplied)

30. In Nagaraja Vs. State of Karnataka (2008) 17 SCC 277, the Supreme Court examined two factors considered to be necessary ingredients of Section 34 IPC. In that regard, it was observed as below:

"17. We are not concerned herein as to whether the said iron rod was the weapon of assault. Having regard to the quality of evidence that the prosecution had led, in our opinion, it is difficult to come to the conclusion that all the accused persons had a common intention to commit the murder of the deceased.