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(6) The Trial Court, after evaluating the prosecution evidenc, convicted and sentenced the appellants for the offence, as mentioned in para 1 of this judgment. (7) It is contended on behalf of appellants that the Trial Court has discarded the relevant omissions in prosecution evidence and committed an error by relying upon evidence of interested witnesses. It is further contended that it is unnatural to remain present of the alleged eye-witnesses on the spot who were the relatives of deceased, therefore, their testimony is liable to be discarded due to contradictions in regard to role assigned by appellants.The appellants have been falsely implicated since no overt act has been assigned to them. It is further contended that evidence regarding to verbal exhortation should not be readily believed because oral evidence relating to exhortation is of a weak type of evidence and the Court should be reluctant to accept that evidence. In support of contention, the counsel for the appellants has relied upon the judgment of Hon'ble Apex Court in the case of Jainul Haque vs. State of Bihar, reported in AIR 1974 SC 45. It is further contended that the Trial Court has wrongly convicted appellant accused Man Singh u/S 302 read with Section 34 of IPC although his act does not fall within the scope of Section 34 IPC. The prosecution has concealed the report lodged by Shyam Singh at Police Check-post and the independent witnesses were not examined before the Trial Court. Although in the FIR it was mentioned that at the time of incident, PW3 Preeti, PW4 Rammoorti & PW5 Jitendra Singh were present, despite the Trial Court has committed an error on relying upon their testimony. It is further contended that Mahaveer Singh Bhadauriya, relative of witnesses was posted on the post of Head Constable at Police Station Mata Basaiyya and during the entire investigation proceedings, he had taken special interest in the matter in question. Hence, it is prayed that the impugned judgment passed by Trial Court deserves to be set aside.
(8) In response, the Counsel for the State supported the impugned judgment and contended that no material inconsistency of contradiction has been emerged from the evidence of eye-witnesses. There is no basis to discredit presence of eye-witnesses and nothing has been elicited in the course of their cross-examination to doubt their presence. It is further contended that there was no long interval between the act and pre-meditation as well as plan formed suddenly by the accused persons. In order to apply Section 34 IPC it is not necessary that prosecution must prove an act was done by a particular person. It is further contended that at the instigation of appellant accused Man Singh, appellant accused Narendra Singh armed with a lethal weapon i.e. mouser gun committed murder of the deceased and entire chain of happenings also indicates only sole fact that appellant accused Man Singh is not only creator of entire happenings, but also an instigator. The entire evidence on record also clearly establishes a common intention in pursuance of which, appellant accused Man Singh exhorted appellant- accused Narendra to kill deceased Ramveer and 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. There being no infirmity in the impugned judgment and the findings arrived at by Trial Court do not require any inference by this Court. Hence, the present criminal appeal deserves dismissal. (9) The moot question arises for determination of present appeal as to whether in furtherance of common intention and at the instigation or exhortation of appellant accused Man Singh, appellant- accused Narendra Singh fired gunshot by his mouser gun on the chest of deceased Ramveer and committed his murder or not ? (10) Heard the counsel for the parties and perused record of Trial Court.
"26. A witness is normally to be considered independent unless he or she springs from sources which are likely to be tainted and that usually means unless the witness has cause, such as enmity against the accused, to wish to implicate him falsely. Ordinarily, a close relative would be the last to screen the real culprit and falsely implicate an innocent person..."
15. In case of a related witness, the Court may not treat his or her testimony as inherently tainted, and needs to ensure only that the evidence is inherently reliable, probable, cogent and consistent.'' (23) So far as next contention of the counsel for the appellants that no conviction for instigation or exhortation can be recorded against the accused appellant Man Singh alleged to have exhorted the actual assailant is concerned, in the case at hand, there is direct and positive evidence that at the instigation of appellant accused Man Singh, appellant- accused Narendra fired at the deceased. Therefore, in the light of unanimous and categorical statements of prosecution witnesses, the contention of counsel for the appellants is not acceptable. The evidence of witnesses relating to exhortation is clear, cogent and reliable. In view whereof, it cannot be said that appellant accused Man Singh was not sharing common intention with appellant accused Narendra Singh in commission of murder of deceased in question. In this regard, a reliance can be placed on the decision of Rajasthan High Court in the matter of Bhoma Ram Vs. State of Rajasthan 1987 WLN UC 128 wherein, it has been held as under:-
13. It was argued by Mr. Doongarsingh that the evidence as regard to the verbal exhortation should not be readily believed. Oral evidence relating to exhortation is of weak type and the Court should be reluctant to accept that evidence. In support of his contention, Mr. Doongar Singh placed reliance on Jainual Haque v. State of Bihar . It was observed by their Lordships that the evidence of exhortation is by nature weak and conviction for abetment should not be recorded without clear, cogent and reliable evidence in this respect.'' (24) We shall also go back into the history to understand Section 34 of IPC as it stood at the inception and as it exists now. Generally speaking, Section 34 IPC provides an acts done by several persons in furtherance of common intention. When a criminal act is done by several persons in furtherance of the common intention of all, each of such persons is liable for that act in the same manner as if it were done by him alone.