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15. We have heard the arguments of the learned counsel appearing for the surviving appellant no. 2, Brij Raj Singh as well as the learned AGA appearing on behalf of the State-respondent. We have also perused the impugned judgment and order of conviction and sentence dated 29.04.1989 passed by the learned Trial Court and have also gone through the entire oral and documentary evidence available on record.

16. The main thrust of the arguments advanced by learned counsel for the surviving appellant no. 2, Brij Raj Singh, is that the prosecution has assigned to him only an ornamental role of exhortation. Brij Raj Singh neither had any motive nor has his participation been proved, inasmuch as, appellant no. 1, Brijendra Singh (now deceased) belonged to a different village and the prosecution evidence is inconsistent regarding his relationship with Brij Raj Singh. In the F.I.R., it is stated that Brij Raj Singh and Brijendra Singh were friends, whereas the informant (PW-1) has alleged that they were brothers. In any event, Brijendra Singh, who allegedly had a motive to eliminate the deceased, did not require any exhortation from Brij Raj Singh to commit the crime. It is further alleged that Brij Raj Singh kept PW-1 at gunpoint. If there was any motive, it was stronger against PW-1, and had he been at gunpoint, he would not have been spared. There is no evidence of any prior concert between Brijendra Singh and Brij Raj Singh so as to establish the participation of Brij Raj Singh in the commission of the crime. Even if the prosecution evidence is accepted at face value, the only allegation against the surviving appellant is that he exclaimed that the opportunity was good. From the words allegedly uttered by Brij Raj Singh, it cannot be inferred that his intention was to have the deceased murdered. Thus, the conviction of Brij Raj Singh with the aid of Section 34 of the IPC is not sustainable in the eyes of law. Therefore, the impugned judgment and order dated 29.04.1989 passed by the Trial Court is liable to be set aside, and the instant criminal appeal deserves to be allowed.

17. Per contra, learned AGA on behalf of the State-respondent submitted that the name of the surviving appellant, Brij Raj Singh, was mentioned in the written report (Exhibit Ka-1) by the informant, Surat Singh (PW-1). He also submitted that, from the evidence of the prosecution witnesses, including informant Surat Singh (PW-1), the presence of surviving appellant no. 2, Brij Raj Singh, at the place of occurrence is clearly proved. Appellant no. 2, Brij Raj Singh exhorted appellant no. 1, Brijendra Singh (now deceased), to utilize the opportunity by killing Bhuri Singh. Upon this exhortation, appellant no. 1, Brijendra Singh (now deceased), fired a gunshot at Bhuri Singh, who died on the spot. The Trial Court, after appreciating the prosecution evidence, found ample role and evidence against the surviving appellant no. 2, Brij Raj Singh, justifying his conviction under Section 302/34 IPC. The Trial Court properly appreciated the evidence, and there is no illegality or perversity in the reasoning and findings given in the impugned judgment and order dated 29.04.1989. Hence, the instant criminal appeal by the appellant lacks merit and is liable to be dismissed.

18. In the light of the above arguments and counter arguments of both sides, we find that in the written report (Exhibit Ka-1), the only role assigned to the surviving appellant no. 2, Brij Raj Singh, was that he pointed a gun towards informant Surat Singh (PW-1) and exhorted appellant no. 1, Brijendra Singh (now deceased), to kill Bhuri Singh.

19. From a perusal of the evidence of the informant Surat Singh (PW-1), we find that PW-1 stated that appellants, Brijendra Singh and Brij Raj Singh had illegal guns in their hands. Upon seeing them, he raised an alarm. Bhagwan Singh and Jagannath Singh arrived at the scene and lit their torches. Thereupon, Brij Raj Singh stated that it was a good opportunity to utilize, following which Brijendra Singh fired a shot at Bhuri Singh. The shot hit him in the chest, and after receiving the injury, he fell down. The accused then fled towards the north. From a perusal of the evidence of informant Surat Singh (PW1), we further find that this witness testified regarding the enmity of the appellant no. 1, Brijendra Singh (now deceased), towards the deceased, Bhuri Singh. This was because the deceased, Bhuri Singh, owned 50-60 bighas of agricultural land and was issueless. The appellant no. 1, Brijendra Singh (now deceased), wanted to take the land of the deceased, Bhuri Singh, but Bhuri Singh did not want to give his land to him. Two years prior to this murder, Bhuri Singh had executed a sale deed for his house in favour of the informant, PW-1. Due to which, appellant no. 1, Brijendra Singh (now deceased), regarded enmity with the deceased, Bhuri Singh.

20. From an overall appreciation and perusal of the evidence of informant Surat Singh (PW-1), it is apparent that there is not a single word stated in respect of the surviving appellant no. 2, Brij Raj Singh, suggesting any motive that would have impelled or forced him to assist and exhort appellant no. 1, Brijendra Singh (now deceased), to kill the deceased, Bhuri Singh. We find that the only reference, in simple words, which appears to be an afterthought and concocted with a view to implicate the surviving appellant no. 2, Brij Raj Singh, regarding his presence at the place of occurrence along with appellant no. 1, Brijendra Singh (now deceased), appears to be false, fabricated, and artificial.