- (1.) N. B. Asthana, J. This revision by one of the accused has been directed against the order dated 20-1-1995 passed by Additional Sessions Judge, Rampur in S. T. No. 410 of 1994 framing charges against him for the offences punishable under Sections 302/34 and 307, IPC.
(2.) THE contention of the revisionist is that there was no evidence to presume that the revisionist has committed offence punishable under Section 302/34, IPC and, therefore, he should have been discharged under Section 227, Cr. P. C. According to the obligations made the FIR Kalian Khan and Shappu Khan were returning to the city of Bareilly from Rampur-Bareilly Road, on a motorcycle. This motorcycle reached Panvadia near the Kabadi shop of Irshad son of Mehboob. The motorcycle was parked near the road. Shappu Khan went to the shop of Irshad where Nisaruddin the present revisionist was also present. Abuses were exchanged there. Shappu Khan remarked that Irshad was purchasing stolen property but was feeling had when somebody pointed it out to him. After making this remark he was returning towards his motorcycle when Irshad fired upon Shappu Khan with a country-made pistol, which hit him in the head causing his instantaneous death. A number of persons collected there who wanted to apprehend Irshad. The revisionist Nisaruddin fired with a pistol towards Kalian Khan and others but they escaped unhurt. The trial Court was of the opinion that the revisionist also joined Irshad in abusing Shappu Khan and also fired toward Kalian Khan in order to cause his death. Both the incidents cannot be separated from each other and, therefore, the revisionist is also liable for the offence punishable under Section 302/34, IPC. It was not contended that charge under Section 307, IPC should not have been framed. Common intention pre-supposes prior concert, It requires a pre arranged plan because before a man can be vicariously convicted for the criminal act of another, the act must have been done in furtherance of the common intention of them all. There must have been a prior meeting of minds. The common intention, however, may well develop on the spot as between a number of persons with reference to the facts of the case and circumstances of the situation.
(3.) IN the instant case the revisionist was also armed with a country-made pistol. The co-accused had fired upon the deceased causing his death. The revisionist was physically present there and had participated in the exchange of abuses between the deceased and the co-accused. He also fired upon Kalian, who wanted to apprehend the co-accused. All this would prima facie show that they had pre- concert design which developed on the spot to cause the death of Shappu Khan and the revisionist who was present there fixed in order to held him in running away after the incident. At the stage of framing charge, therefore, it must be held that there was ground for presuming that the revisionist had committed offence punishable under Section 302/34, IPC. It is a different matter that after the evidence is recorded and in the light of the evidence and the circumstances as they appear in evidence it may not be finally said that the revisionist shared the common intention of the co-accused but at this stage there is ground for presuming that the revisionist has also committed the offence punishable under Section 302/34, IPC. In view of the discussion above the revision has no force and is dismissed at the admission stage. Revision dismissed. .;