I.D. Dua and V.S. Desbpande, JJ.
(1) This petition seeks a certifirate of fitness for appeal to the Supreme Court. By means of the impugned order, a Division Bench of this Court had, while upholding the conviction of Raghbir Singh under Section 302 1. P. C., reduced his sentence from one of death to that of life imprisonment and while allowing the State appeal against acquittal of Mohan Lal and Raj Singh, convicted them also under section 302 1. P. C., sentencing them to life imprisonment. Section 34, I.F.C. was held applicablie to the case. All the three appellants were in addition sentenced under section 307 read with section 34, 1. P. C. to seven years rigorous imprisonment and under section 35 read with section 34 1. P. C. to three years rigorous imprisonment.
(2) Shri Hardev Singh the learned counsel for the accused, has in the first instance submitted that the site plan has been illegally considered as evidence in this case and this illegality has resulted in grave injustice to his clients. In our opinion, the submission is misconceived. This Court's conclusions in the impugned order clearly proceed on the basis of oral evidence which has been accepted as trustworthy, keeping in view the caution contained in the decision of the Supreme Court in Masaltiv The State of Uttar Pradesh. Goverdhan P V.. I and Ram Sarup P. W. 3 were believed by the Court and their evidence was considered to be direct regarding the occurrence. It was Shri J. G. Sethi, Advocate who had tried to criticise the testimony of these witnesses by making reference to the site plan. While commenting on Shri Sethi's argument, this Bench dealt with the site plan, toherwise the occular testimony of the eye-witnesses is the real basis of this Court's cor elusions. On this view. the decision in Santa Singh v. State of Punjab, is of no avail to the petitioners
(3) The question of the applicability of section 34, J P. C., also does nto raise any important question in this case which would justify the grant of the requisite certificate These were the only two points on the basis of which Jeave certificate has been claimed before us.
(4) Now it has to be remembered that only Article 134 of the Constitution can, if at all, be applied to the present case and under this clause the Supreme Court has nto been made an ordinary Court of Criminal appeal. The High Court is, thereforee, expected to exorcise its discretion in granting certificates sparingly and with care. Unless there is some error of a fundamental character, certificates are nto expected to be granted because the Constitution has nto contemplated antoher hearing on facts and the certificate under Article 134 of the Constitution should nto attempt to create such a jurisdiction.
(5) In regard to the applicability of section 34, I P. C. it is well to remember that it is always a question of fact whether the accused shared a particular knowledge or intent and it is nto necessary that there should be an appreciable passage of time between the formation of the common intent and the commission of the oftence. One has merely to look for the common intention and prior concert which may quite conceivably be found at any moment prior to the actual commission of the offence. This is by and large a question of fact. The view we have taken is supported on the authority of Babu v. State of U. P. and Anda v. State of Rajasthan.
(6) For the reasons foregoing, we reject this application.