The judgment establishes that exhortation alone is not strong evidence to prove complicity, and there must be evidence of pre-mediation or pre-concept of mind for conviction under Section 34 IPC.

Ramesh Sinha, J.: -

Heard Sri Apul Mishra, learned counsel for the appellant no.2 and Sri K.S. Yadav, learned A.G.A. for the State.

2. The present appeal has been filed against the judgment and order dated 13.2.1986 passed by 4th Additional Sessions Judge, Shahjahanpur in Sessions Trial No. 606/1984 by which the appellant no.1 Kandhai has been convicted and sentenced under Section 302 I.P.C. to undergo imprisonment for life, under Section 307 I.P.C. to 7 years rigorous imprisonment and under Section 25 (1)A of the Arms Act to 2 years rigorous imprisonment and under Section 27 of Arms Act to 5 years rigorous imprisonment and further convicting and sentencing appellant no.2 Shiv Narayan under Section 302 /34 I.P.C. for imprisonment for life and 307/34 to 7 years rigorous imprisonment.

3. The appeal of the appellant no.1 Kandhai, who has died, has been ordered to be abated by this court vide order dated 6.03.2014.

4. The prosecution case in brief is that on 30.9.1984 son of the informant Lal Sahai namely Ajay Pal Singh (deceased) had gone at the shop of the accused Kandhai Lohar for sharpening of Khurpi and Gandasa. The deceased, Ajay Pal Singh, was also accompanied with the nephew (Bhanja) of the informant namely Gajraj Singh. Accused Kandhai refused to sharpen the said items of Ajay Pal Singh then his nephew Gajraj Singh had gone to call the informant, who also came at the shop of Kandhai and questioned him regarding reason for not sharpening the tools on which the accused Kandhai told him that they fail to pay him his money in time on which altercation took place between them. The accused Kandhai went to his house and had brought his father's licensee gun along with him his uncle Shiv Narayan Singh. Shiv Narayan started abusing the son of the informant and further exhorted accused Kandhai to shoot Ajay Pal Singh, on which the accused Kandhai fired a shot at Ajay Pal Singh, which hit his abdomen upon which he fell down. The accused Kandhai fired a second shot which hit his nephew, Gajraj Singh, and to one Ram Saran of the village. Thereafter accused Kandhai and Shiv Narayan went to their house and close the doors. The villagers present at the place of occurrence namely, Kalyan Singh, Laxman Singh, Devi Singh and Sardar Singh had seen the incident. Ajay Pal Singh who was alive at that time was taken to his house along with the injured who were also left in the house and the informant went to the police station to lodge the first information report.

5. The informant Lal Sahai lodged the FIR about the incident at 6.15 p.m. on the same day at police station Nigohi, which was registered as Case Crime No. 196 under section 307/34 I.P.C. The investigation of the case was carried out and on the same day the investigating officer sent the injured for their medical examination and the dead body of the deceased for post mortem examination. The statements of the witnesses were recorded by the investigating officer and thereafter charge sheet was submitted against the accused persons. The Trial Court framed charge aginst accused Kandhai for the offence under Section 302 , 307 I.P.C. and Section 25 (1)A and 27 of the Arms Act and framed charges against the accused Shiv Narayan under Section 302 read with 34 I.P.C. and 307 read with 34 I.P.C. respectively.

6. The accused denied prosecution allegation and pleaded not guilty and claimed to be tried.

7. The prosecution in support of its case has examined nine witnesses such as PW-1 Lal Sahai the informant, PW-2 Ram Saran injured, PW-3 Sardar Singh who is eye-witness of the incident where as PW-4 Raj Bahadur Singh the Station Officer of Police Station Nigohi who has proved the FIR and other police papers, PW-5 S.N. Misra Sub-Inspector who is the investigating officer of the case and submitted charge sheet against the accused, PW-6 Dr. B.P. Sharma, the Radiologist who has conducted post mortem of the deceased, PW-7 Ishwari Prasad who took the dead body of the deceased for post mortem, PW-8 B.P. V