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37. In view of this, the ocular evidence regarding the manner in which deceased Ram Sharan Tiwari was shot dead, is also corroborated by the medical evidence on record.

38. It is also evident from the evidence of P.W.-2 and P.W.-3 that at the time of the incident accused Mahesh, Umesh and Gore Lal were present. It is also proved that accused Mahesh is the real brother of accused Umesh. It is also proved that Gore Lal was having friendship with accused Mahesh and Umesh, who used to remain in their company. It is also proved that just prior to the incident on seeing Ram Sharan, accused Umesh had verbally expressed his displeasure regarding the attitude(rangbazi) shown by Ram Sharan at the liquor vend and thereafter, accused Gore Lal and Mahesh had jointly exhorted accused Umesh by saying that today is a good opportunity, he(Ram Sharan)should not escape and be killed and thereafter, acting on this exhortation, accused Umesh shot dead Ram Sharan with a single shot of 'tamancha'. It is proved that accused Umesh was exhorted to kill Ram Sharan by accused Gore Lal and Mahesh. It is also proved that accused Gore Lal and Mahesh neither stopped Umesh from shooting Ram Sharan nor they remained present at the spot after the incident, instead, they along with Umesh fled, who were chased and P.W.-2 and P.W.-3 also had a scuffle with Gore Lal, during which his slippers and 'angocha' were left behind, which were recovered by P.W.-6 in the next morning, regarding which recovery memo Ex. Ka-14 was proved by P.W.-6 during trial, on which P.W.-2 and P.W.-3 had admitted their signatures. It is also proved that accused Mahesh and Gore Lal knew prior to the incident, that accused Umesh was armed with a 'tamancha' and due to this reason, they gave an exhortation to kill Ram Sharan. Otherwise, if they were not aware that accused Umesh was having a 'tamancha' in his possession, then there was no purpose of giving an exhortation to him, to kill Ram Sharan. This conduct of accused Mahesh and Gore Lal prior to the incident, simply proves that they were aware that accused Umesh was having a 'tamancha' in his possession and by using it, Ram Sharan could be killed. Besides this, if Mahesh and Gore Lal were not having common intention to kill Ram Sharan with Umesh, then, since they were in close proximity to accused Umesh, they could have very well stopped him or at least made an effort to prevent Umesh from shooting Ram Sharan, but no such positive action was taken by them. Even after the incident, if accused Mahesh and Gore Lal were not having common intention to kill Ram Sharan with Umesh, then, they could have remained present at the spot. The evidence of P.W.-2 and P.W.-3 proves that accused Mahesh and Gore Lal also fled, who were chased by the above witnesses and during this chase, a scuffle took place between the witnesses and accused Gore Lal, during which the slippers and 'angocha' of Gore Lal were left behind, but he ultimately managed to flee. The conduct of the accused Mahesh and Umesh, prior to and after the incident, proves that they had common intention with accused Umesh to kill Ram Sharan Tiwari.

43. The Apex Court in the case of Gulab vs State of Uttar Pradesh (2022) 12 SCC 677 (by 3 Judges) while considering the applicability of Section 34 I.P.C, held as under:-

"29. In Dhanpal v. State (NCT of Delhi) [Dhanpal v. State (NCT of Delhi), (2020) 5 SCC 705 : (2020) 3 SCC (Cri) 188] , the appellant had exhorted a co-accused to kill the deceased. The exhortation was not repeated by the eyewitnesses in identical terms. Further, it was also alleged that there was no neutral witness since all the eyewitnesses were related to the deceased and there was a delay in lodging the FIR. Aniruddha Bose, J. speaking for the two-Judge Bench of this Court observed : (SCC pp. 709-10, paras 8 & 11) "8. There are sufficient materials, however, to establish that the three appellants had returned together to the place of occurrence and attacked the deceased victim with Dhanpal exhorting to kill Ajay. They had grappled the victim and said Kamal inflicted multiple injuries on him with the knife. On the basis of evidence disclosed, the trial court and the High Court [Sanjeev v. State, 2009 SCC OnLine Del 2868] found that there was prior meeting of minds of all the four convicts and all the three appellants had intention common with that of Kamal. On this point, the ratio of the judgment of this Court in Asif Khan v. State of Maharashtra [Asif Khan v. State of Maharashtra, (2019) 5 SCC 210 : (2019) 2 SCC (Cri) 484] is relevant. In an earlier case, Rajkishore Purohit v. State of M.P. [Rajkishore Purohit v. State of M.P., (2017) 9 SCC 483 : (2017) 3 SCC (Cri) 749] , it has been held that to establish common intention to cause murder, overt act or possession of weapons by all the accused persons is not necessary. In Richhpal Singh Meena v. Ghasi [Richhpal Singh Meena v. Ghasi, (2014) 8 SCC 918 : (2014) 6 SCC (Cri) 424] , the ratio is that in the event the nature of the assault is such that the target person is likely to die from the injuries resulting therefrom, the accused must be deemed to have known the consequences of his act.

30. Recently in Sandeep v. State of Haryana [Sandeep v. State of Haryana, (2022) 14 SCC 812 : 2021 SCC OnLine SC 642] , a two-Judge Bench of this Court held that an exhortation given by an accused immediately before a co-accused fired a shot killing the deceased would prove his involvement in the crime beyond reasonable doubt. Accordingly, this Court upheld the conviction of the accused under Sections 302 and 34IPC.

31. The evidence on the record clearly establishes a common intention in pursuance of which the appellant exhorted Idrish to kill the deceased. The prosecution is not required to prove that there was an elaborate plan between the accused to kill the deceased or a plan was in existence for a long time. A common intention to commit the crime is proved if the accused by their words or action indicate their assent to join in the commission of the crime. The appellant reached the spot with a lathi, along with Idrish who had a pistol. The appellant's exhortation was crucial to the commission of the crime since it was only after he made the statement that the enemy has been found, that Idrish fired the fatal shot. The role of the appellant, his presence at the spot and the nature of the exhortation have all emerged from the consistent account of the three eyewitnesses."

CONCLUSION

86. To sum up, the first informant Sushil Kumar P.W.-1 is not an eye witness of the incident. He was told about the incident by P.W.-2 and P.W.3 at about 10:35 p.m. on 08.09.2004, then on 09.09.2004 at about 00.15 hours, FIR regarding the incident was registered by P.W.-1 at police station Muskura, in which all the accused persons are named. It is also proved that P.W.-2 and P.W.-3 were present at the spot and witnessed the incident. It is also proved that prior to the incident about one and a half months back, an altercation took place between accused Umesh with deceased Ram Sharan Tiwari regarding breaking of a coal furnace, due to which accused Umesh harboured enmity towards Ram Sharan. It is also proved that just before the incident, at 09:00 p.m. on 08.09.2004, Ram Sharan, P.W.-2 and P.W.-3 had gone towards a liquor vend, where they met accused Umesh, who abused Ram Sharan Tiwari and threatened him with dire consequences, and thereafter Ram Sharan, P.W.-2 and P.W.-3 had gone to Chamardha pond for defecation and accused Umesh had proceeded to his house and when they were returning after defecation, in front of the house of Vasudev Kachi, accused met Ram Sharan Tiwari, P.W.-2 and P.W.-3 and from close proximity accused Mahesh and Gore Lal had jointly exhorted accused Umesh to kill Ram Sharan and acting on this exhortation, accused Umesh fired a single shot from country made weapon (tamancha) of 315 bore, which pierced the chest of Ram Sharan and made an exit from the back side, killing him instantaneously. It is also proved that the accused, P.W.-2 and P.W.-3 reside in the same village Pahadi Bhetari, who were known to each other, before the incident. P.W.-2 and P.W.-3 identified the accused from their voice and also in electric light. It is also proved that Mahesh and Gore Lal were having knowledge that accused Umesh was carrying a country made weapon and only because of this knowledge, they exhorted accused Umesh to kill Ram Sharan Tiwari. Accused Mahesh and Gore Lal neither made any attempt to prevent Umesh from committing the crime nor remained present at the spot, after the commission of offence, but instead they fled, which proves that they were having a common intention with accused Umesh to commit the crime. It is also proved that after the incident, P.W.-2 and P.W.-3 attempted to apprehend the accused Gore Lal but in this scuffle, the slippers and 'angocha' of accused Gore Lal were left behind, which were taken into possession by P.W.-6, the recovery memo of which was proved as Ex.Ka-14 and also, P.W.-2 and P.W.-3 identified their signatures on it. They also proved that these objects belonged to accused Gore Lal.