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BACKGROUND FACT:
The residents of village Devanand Pur had been performing "Holika Dehan" for a long time on Plot No. 399, which is said to be a banjar land. Kunwar Prahlad Singh became the owner of the said plot. He tried to enclose the said plot by a 'Mend'(Fence). An objection thereto was raised by the villagers including Laxmi Shankar Srivastava (PW-3); a complaint wherefor was made pursuant whereto an intervention was made by the police.
FIRs RELATING TO INCIDENT:
On the Basant Panchami day, the villagers allegedly fixed 'Dhah' as a symbol of Holi on the said plot and started collecting fuel wood thereupon. On the said day at about 12 noon, Khuddey, PW-4 while going to the flour mill found the Appellants herein removing the wood. The accused Jitendra armed with a gun and the remaining accused armed with lathis were present. Khuddey, PW-4, servant of Laxmi Shankar Srivastava, allegedly forbade them from doing so whereupon he was chased. Near the Hata of Pran, Laxmi Shankar Srivastava (PW-3), Sahjadey Jeevanlal (PW-2) Shabbir and other persons of the village arrived. Laxmi Shankar Srivastava allegedly had asked the accused as to why they have been chasing his servant. Triloki Nath exhorted his companions saying 'Maro Sale Ko' whereupon Gopal hurled a lathi blow on PW-3's head. Shashi Kant accused gave the second lathi blow on his wrist. Kunwar Prahlad Singh and Sahdev also assaulted him with lathis. Chhanga and Krishna assaulted Sahjadey. Khuddey (PW-
4) is said to have hurled lathi blow in defence of Laxmi Shankar Srivastava (PW-3). He thereafter raised hue and cry which attracted Nanhe (the deceased), and others. Nanhe raised alarm saying that Lala (thereby meaning Laxmi Shankar Srivastava) was being killed whereupon Triloki Nath exhorted Jitendra asking him to kill him as he professes himself to be a great helper of Laxmi Shankar. Responding thereto Jitendra fired a shot at Nanhe. He fell down and died.

A First Information Report was lodged by Dinesh Kumar Srivastava (PW-1) at about 2 p.m. on the same day.

A First Information Report was also lodged by Kunwar Prahlad Singh Srivastava (Accused No.1) at about 4.30 p.m. against Shahjadey, Bansidhar, Khuddey Chamar, Nanhe Chamar, Hira Passy, Shabbir and Laxmi Shankar purported to be for commission of an offence under Section 147/323/352 of the Indian Penal Code alleging that Dinesh Kumar under the pretext of performing Holika Dahan placed some waste wood at Plot No. 399 and kept on adding thereto. He went to the said plot along with his sons Mister alias Jitendra and Gopal at about 11 a.m. and removed the said waste wood from his land. When they were returning, Dinesh Kumar came on his motorcycle with a child. He allegedly stopped his motorcycle and called his servant as also Shahjaddey and Bansi Brahman and exhorted "Jane na paye, mar pit low" whereupon they ran towards their house. On the way, Khuddey Chamar, Nanhe Chamar, Hira Passi, Shabbir, etc. came from the side of the east and south and surrounded him. The accused persons attacked Triloki. Sahdev and other persons ran towards him for his rescue and when they had been running to save their lives, they heard a sound of gun-fire from behind.

In the aforementioned premise, a significant aspect of the matter cannot be lost sight of. Only Triloki exhorted Jitendra to kill Nanhe who came to the spot accidentlly. The exhortation of Triloki was to Jitendra @ Mister, who was having a gun. On his exhortation only Jitendra fired from his gun as a result whereof, he died. We, therefore, are of the opinion that Triloki along with Jitendra developed a common intention in that behalf on the spot. Both are, therefore, liable to be convicted under Section 302/34 IPC.