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in-chief, PW-1, Shahzad, who is also the complainant and the injured in the present case, has deposed that on 16.03.2003 at about 8/8.30 p.m, he had gone to the house of his nana PW-2, Shahid Ahmed along with his maternal uncle PW-3, Yamin Ali. He further deposed that at about 9/9:30 pm he along with PW-3, Yamin Ali left the house of PW-2, Shahid Ahmad for his house in Chand Bagh and when they reached near M.I.G Flats of Ashok Nagar, the appellants met them and started abusing and assaulting them. Appellant no. 1, Rahisuddin threatened the complainant (PW-1) to withdraw the case which had been filed by the complainant's sister against Rahisuddin and if the same was not done then Rahisuddin stated that he would kill the complainant (PW-1). It has also been deposed by PW-1 that PW-3, Yamin Ali was beaten by appellants Ali Jaan and Shaukin Ali while appellant no. 2, Alimuddin had caught hold of the complainant and appellant no. 1, Rahisuddin slapped him three-four times. PW-1 has further deposed that thereafter, appellant no. 2, Alimuddin exhorted appellant no. 1, Rahisuddin to finish PW-1 and on which Rahisuddin took out a katta from the dub of his trouser and fired upon the complainant, PW-1. PW-1 tried to save himself and the bullet hit him on his left arm and exited from the arm. PW-3 Yamin Ali shouted for help and PW-1 became unconscious. In his cross-examination by the counsel for appellants, PW-1 reiterated that appellant no. 1, Rahisuddin had at first threatened to kill him if the case against him was not withdrawn and then on the exhortation of appellant no. 2, Alimuddin, appellant no. 1, Rahisuddin took out a katta from the dub of his trouser and fired at PW-1, from a distance of 4/5 feet, who tried to save himself and the bullet hit him on his left arm. In the cross-examination, PW-1 negated the suggestion that he had deposed falsely against the appellants due to ill will or enmity.

35.I find that the testimony of PW-1, Shahzad has been fully corroborated by PW-3, Yamin Ali who was an eye-witness to the occurrence. In his examination-in-chief, PW-3 has deposed that on 16.03.2003 at about 8.15 pm, he and PW-1 had gone to the house of PW-2, Shahid Ahmed (nana) at Ashok Nagar, Delhi. He further deposed that he and PW-1 (complainant) left the house of PW-2 at around 9.30 pm and when they reached near the M.I.G Flats of Ashok Nagar all the four appellants were already standing there. Appellant no. 1, Rahisuddin questioned PW-1 as to why was he not withdrawing the cases against Rahisuddin. It has also been deposed by PW-3 that appellants, Shaukin and Alijaan had then overpowered him and appellant, Alimuddin exhorted appellant, Rahisuddin to fire a shot at PW-1 Shahzad. Consequently, appellant Rahisuddin took out a country made pistol and fired at PW-1 who in order to save himself took a dive and the bullet pierced through his left arm. The appellants ran away towards Wazirabad, Delhi. In the cross- examination, PW-3 Yamin Ali affirmed that appellants Shaukin and Alijaan had overpowered him while appellant, Alimuddin had overpowered Shahzad from the back encircling his waist. He has further deposed that Shahzad and Alimuddin were at a distance of two to three feet from him. After carefully reading the testimonies of PW-1 and PW-3, I find that there are no material discrepancies. It has been categorically stated by PW-1 as well as by PW-3 that appellant Alimuddin had exhorted appellant Rahisuddin to kill PW-1 and pursuant to which appellant, Rahisuddin fired a shot at PW-1. The testimony of PW-1 duly stands corroborated by PW-3 on all material aspects. I have also gone through the testimony of PW-2, Shahid Ahmed who has deposed in his examination-in-chief that on 16.03.2003, at about 8 PM, PW-1, Shahzad and PW-3, Yamin Ali had visited his house and had left around 9.15 pm. PW-2 has deposed that in the morning of the next day, police had visited his house to enquire if PW-1 and PW-3 had visited him on the previous night i.e the night on which the alleged incident had taken place. PW-2 further stated that he was informed by the police that PW-1 had been shot at in the night. Thus PW-2, Shahid Ahmed clearly affirmed that both PW- 1 and PW-3 had visited his house on the night of the incident, which further lends credence to the version of PW-1 and PW-3.

50. Applying the settled position of law, I find that PW-1 who has been duly corroborated by PW-3 has deposed that appellants Shaukin and Ali Jaan had overpowered PW-3, Yamin Ali while appellant Alimuddin had overpowered PW-1, Shahzad. Thereafter, appellant Rahisuddin threatened PW-1 that if the cases filed against him were not withdrawn then he would kill PW-1. In the meantime, appellant Alimuddin exhorted appellant, Rahisuddin to kill PW-1 and immediately thereafter appellant, Rahisuddin took out a firearm from his trouser and shot at PW-1. It has further been categorically deposed by PW-1, Shahzad as well as PW-3, Yamin Ali that when appellant, Rahisuddin shot at PW-1, he in order to save himself, took a dive; as a result of which the bullet pierced his left arm. A study of the MLC of PW-1 would also reveal that a bullet injury was noted on his left humerus and an entry wound was noted at the junction of upper and lower half of humerus entirely. There was also an exit wound on posterior region of humerus with dimensions of 15X9 cm. In view of the testimonies of PW-1 and PW-3 which have been duly supported by the MLC of the injured (Shahzad), I find force in the contention of counsel for the respondent/State that the bullet was fired at the chest of PW-1 but since PW-1 took a dive to save himself, the bullet hit his left arm. I further find that this is not a case of chance or accidental meeting of the two parties. The appellants knew the whereabouts of the respondents and waited for them at a lonely spot near the MIG Flats of Ashok Nagar, Delhi. Considering the fact that the firearm was not only shown by appellant Rahisuddin to threaten the complainant but after the exhortation by appellant Alimuddin, appellant, Rahisuddin, fired at PW-1, it can be conclusively inferred that the mens rea was followed by actus reus which necessarily brings the act under the ambit of section 307, IPC.

54. Applying the settled law to the facts of the present case, I find that although there is no doubt that all the appellants were physically present at the scene of occurrence, but mere physical presence is not enough. To bring a case under the ambit of section 34, IPC, it must be established that (1977)1 SCC 746 : 1977 SCC (Cri) 177 : AIR 1977 SC 109 1993 Supp(3) SCC 134 : 1993 SCC (Cri) 875 : AIR 1993 SC 1899 the offence was committed in furtherance of their common intention. I find that it has been established beyond doubt that appellant no. 2, Alimuddin had exhorted appellant no. 1, Rahisuddin to finish the complainant, Shahzad consequent to which appellant no.1, Rahisuddin, took out a katta from the dub of his trouser and fired on Shahzad (PW-1). However, in the present case, there is no direct or circumstantial evidence to show that appellants Ali Jaan and Shaukin Ali had any knowledge of appellant no.1, Rahisuddin carrying a deadly firearm. There is nothing put on record to show that appellants, Shaukin Ali and Ali Jaan shared the common intention to kill the complainant or that there was a pre-concert or earlier meeting of minds or to infer that the common intention to kill complainant Shahzad had developed on the spot. Such common intention can only be imputed to appellant no. 2, Alimuddin who had exhorted appellant no. 1, Rahisuddin to kill the complainant.