The main legal point established in the judgment is the application of Section 34 of the Indian Penal Code, which holds each person liable for a criminal act done by several persons in furtherance of the common intention of all. The judgment emphasizes the requirement of proving common intention and participation in the criminal act to establish liability under Section 34.

ORDER :

Rajendra Kumar-IV, J.

1. This Criminal Appeal under Section 374 Cr.P.C. has been filed by accused-appellants Mazhar Husain, Zafar Husain and Azhar Husain against the judgment and order dated 12.05.2000 passed by Sri Syed Nazim Husain Zaidi, First Additional District and Sessions Judge, Kanpur Dehat in Session Trial No. 296 of 1998, convicting appellant-1 Mazhar Husain under Section 302 I.P.C. and sentencing him to undergo life imprisonment with a fine of Rs. 10,000/-. In case of default in payment of fine, he has to undergo one year's further imprisonment. Accused-appellants Zafar Husain and Azhar Husain were convicted under Section 302 read with Section 34 I.P.C. and sentenced to life imprisonment and a fine of Rs. 5,000/- each. In case of default in payment of fine, they have to undergo further six months' imprisonment.

2. This appeal survives only in respect of appellants-1 and 2 inasmuch appellant-3, Azhar Husain, having died, appeal in respect of him stood abated as evident from order dated 19.12.2017.

3. Factual matrix of the case as appearing from First Information Report (hereinafter referred to as "FIR") as well as material available on record may be stated as followed.

4. A written report (EX. Ka-1) dated 26.05.1998 was presented at Police Station Rajpur, Sub-Division Sikandara, District Kanpur Dehat at 9.39 PM the same day by PW-1 Sajjad Husain, alleging that there existed enmity between Informant and his cousin Mazhar Husain and others in respect of a land. On the fateful day, i.e., 26.05.1998 accused-appellant Mazhar Husain went to the disputed field along with Tractor of Thakur of Silhaira with intention to plough the field. He was accompanied with his brothers Zafar and Azhar. Shabbir Husain, father of Informant, PW-1, was going by cycle to the field for bringing straw. Apprehending that Informant's father might not indulge in altercation with accused on the issue of ploughing of the field, Informant and his brother, Mohd. Farhan, proceeded towards the field. When reached near Puliya (small bridge), they noticed that accused-appellants were hurling abuses on Informant's father. At some distance Ranu, Informants' Bhanja (sister's sons) was also standing and some people were engaged in work in nearby fields. At about 6.00 PM Azhar and Zafar exhorted Mazhar and provoked him to kill Informant's father saying that let the case/dispute be finished that day. In the meantime Mazhar took out country made pistol from his right Phent (upper portion of lower or Dhoti which is tied in waist) and opened two fire at Informant's father. Informant and others ran towards his father who fell down there. Tractor Driver left the Tractor and fled away. Seeing the Informant and others approaching, accused-persons fled sitting in Tractor. On reaching nearer the accused Mazhar tried to load cartridges in the country-made pistol held in his hand but since the pistol was jammed with empty cartridge, he struck the pistol on the body of tractor and got butt and barrel of pistol separated and threw it there. Thereafter they fled away towards village. Informant and his brother found that gunshot hit right side neck and shoulder of their father who was about 65 years old. FIR further states that no confrontation or altercation ever had taken place between accused and Informant. Only a civil litigation was going on. It is further stated that dead body of Informant's father Shabbir is lying on spot.

5. On the basis of written report (EX. Ka-1), PW-3, Constable Moharrir Ram Asrey Verma registered FIR (Kx. Ka-2) on 26.05.1998 at 9.30 PM against the three accused-appellants at Case Crime No. 31 of 1998 under Section 302 I.P.C., PS Rajpur, District Kanpur Dehat. He also prepared Chik FIR No. 30 and made relevant entry in G.D. at report No. 35.

6. Immediately after registration of the case, investigation was undertaken by PW-4, Mohd. Yaqoob Khan. He recorded statement of Informant Sajjad Husain and Constable Clerk Ram Asrey Verma. He proceeded for t