JUDGMENT H.G. Mishra, J.—This is an appeal by the accused appellant against conviction and sentence passed by the Sessions Judge, Shivpuri u/s 307 read with section 34 Indian Penal Code for three years rigorous imprisonment and fine of Rs. 200. In case of default of payment of fine, he has been ordered to undergo sentence for three months R.I. 2. The prosecution case is as under:-- On 4th April 1972 at about 5.00 A.M. near village Ata, there was an encounter between the police party and the dacoits including appellant Gendalal who was member of the gang of Kriparam. The gang had abducted Rameshwar alias Ramesh (P. W. 1), Hargovind (P. W. 4), Hariram (P. W. 5) and one Lalsingh and took them in the forest of Beerpur. Gendalal accused used to carry with him 303 gun. On 3rd April 1972 information to the effect that the gang of Kriparam was in the forest of Beerpur reached police station Dinara. On receiving this information, the Station Officer, Police station, Dinara, Shri R.D. Sharma along with other Sub-Inspectors of other police stations Shri R.N. Rana (P. W. 2), Agandsingh Kushwah (P. W. 3), Jeewandas Tyagi (P. W. 6) and the Circle Inspector with police constables made preparations for purposes of raiding. At about 4.30 A.M. on 4-4-1972 when the police party reached forest of Beerpur, the dacoits observed the police party and opened fire in the direction of the police party with the intention to kill them. The police in reply opened fire. Taking advantage of darkness the dacoits were successful in escaping. When the police had opened fire all the abducted persons were woken up by the dacoits and were carried by the dacoits with themselves. Gendalal the accused has also fired on the police. The case was challaned by the police in the Court of Magistrate First Class, Karera who by his order dated 27-2-1974 committed the accused to stand trial u/s 307 read with section 34 Indian Penal Code. The accused was charged for having committed an offence u/s 307 for having fired with his gun with such intention or knowledge and under such circumstances that if he by that act caused death, he would be guilty of murder acting in furtherance of common intention to that effect with other dacoits in the gang of Kriparam of which the accused was a member. The accused denied the charge and also denied the factum of being member of the gang of Kriparam and he also denied having fired against the police party with alleged intention or knowledge or under such circumstances as are necessary to warrant his conviction u/s 307 read with section 34 Indian Penal Code. After trial the learned Sessions Judge has found the accused to be guilty and convicted him of having committed an offence u/s 307 read with section 34 Indian Penal Code for three years R.T. and Rs. 200 fine, in default of payment whereof he has been directed to undergo three months R.I. 3. The present appeal has been filed by the accused against this conviction and sentence. 4. The learned counsel for the appellant has urged that no offence u/s 307 read with section 34 Indian Penal Code is made out against the appellant and as such he deserves to be acquitted. 5. After having heard the learned counsel for the appellant Shri N.P. Dwivedi and the learned Additional Government Advocate Shri J.P. Shrivastava for the respondent, I am of the opinion that the appeal deserves to be allowed. 6. The learned counsel for the appellant has relied on the ratio of the case reported in Hazra Singh and others v. State of Punjab and Bhajan Singh and others v. State of Punjab 1971 CAR 228 (SC) : 1971 SCC (Cr.) 237, in para. 6 whereof it has been laid down that: The real question is whether it had been proved beyond doubt that the shots were fired at the police party. There could be two possibilities in such a situation; one could be of the shots being fired in the direction of the police party or taking aim at them and the other could be the shots being fired in the air or in some other direction and not in the direction of the police party merely to create confusion for the purpose of running away. 7. Therefore, the real question in the present case, is whether Gendalal fired shot in the direction of the police party or taking aim at them. The three eye-witnesses on the point are Rameshwar alias Ramesh (P. W. 1), Hargovind (P. W. 4) and Hariram (P. W. 5). 7. Therefore, the real question in the present case, is whether Gendalal fired shot in the direction of the police party or taking aim at them. The three eye-witnesses on the point are Rameshwar alias Ramesh (P. W. 1), Hargovind (P. W. 4) and Hariram (P. W. 5). After going through the entire statements of these witnesses the Court is left guessing as to in which direction the accused fired shots. What has been stated by Rameshwar (Ramesh) (P. W. 1) in para 3 is that: HUM SO RAHE THE TO GENDALAL NE MUJHE UTHAYA KI CHALO-CHALO POLICE CHADH BAITHI. DAKUWO NE POLICE PAR FIRE KIYE GENDALAL NE BHI APNI PASKI MARK THREE BANDUK CHALAI. BAD ME PHIR POLICE NE GOLI CHALAI. This witness stopped short of deposing that Gendalal had fired his mark-three gun in the direction of the police party or aiming at the police party. One is left guessing and it is only by way of inference that it is tried to be suggested that the fire must have been in the direction of the police party or must have been aimed at the police party. In para 6, he admits that he could not observe the police party. He has further stated that at the time when Gendalal began to drag him he went on firing but again there is an omission to state the direction in which shots were fired by Gendalal. 8. Hargovind (P. W. 4) has stated in para 4 that: Rat thi Andhera tha. Ham se dakuwo ne kaha ki utho-utho police Aa Gai he". After deposing this the witness proceeds to state that he could not see which of the dacoits was firing gun shots. The only act imputed by this witness to Gendalal is the act of dragging him. 9. Hariram (P. W. 5) has stated in para 2 that Gendalal appellant used to act as guard. He has further deposed in para 3 to the effect that "PEHRE JO HAMARE UPAR THE UNANE KAHA KI POLICE AA GAI HAI AUR PAHAREDARNE POLICE PAR BANDUK DE DI. US SAMAY GENDA MULJIM HAZIR HAMARE PAS HI THA. IS MULJIM NE BANDUK CHALAI THI JO MAINE DEKHI THI." This witness also failed to state whether Gendalal accused had fired the shot in the direction or aiming at the police party. 10. US SAMAY GENDA MULJIM HAZIR HAMARE PAS HI THA. IS MULJIM NE BANDUK CHALAI THI JO MAINE DEKHI THI." This witness also failed to state whether Gendalal accused had fired the shot in the direction or aiming at the police party. 10. The learned Sessions Judge has not taken into consideration the salient features of the evidence as analysed above. One of the essential ingredients to sustain the conviction u/s 307 read with section 34 Indian Penal Code in cases of the present nature is that shot must be fired in the direction of or aimed at the police party. Legal inferences of presumptions and/or conjectures of surmises cannot be made by a Court in the matter. The lacuna in the case on the point cannot be supplied by the presumptions or surmises. It is well settled principle of law that presumptions cannot take place of proof. Since none of the eye-witnesses have deposed to the effect that Gendalal-appellant had fired in the direction of or aimed at the police party, the conviction cannot be sustained. 11. It is the case of the prosecution that it was all dark and on account of darkness the dacoits were successful in escaping along with the persons abducted. None of the eye-witnesses and other witnesses examined by the prosecution in the case deposed to the effect that Gendalal, appellant had fired shot from his gun in the direction of the police party or aimed fire on the police party. 12. The burden is always on the prosecution to prove first the actus reus i.e. the act which in point of law marked the commission of the offence and secondly the mens rea, that is the intention to go on to reach a definite objective which would constitute a specific offence. In this case the act which is sine qua non for marking commission of the offence in question has not been proved to have been committed by the accused. It is not proved by evidence on record in the present case that any act was done by the accused appellant herein in furtherance of common intention of the gang of dacoits. It is not proved by evidence on record in the present case that any act was done by the accused appellant herein in furtherance of common intention of the gang of dacoits. Neither any pre-arranged plan has been proved nor such acts or conduct has been proved on the basis of which it may be inferred that common intention had developed and in furtherance whereof the appellant may have fired the shot in the direction of the police party or had aimed at on the police party. Therefore, the conviction of the accused u/s 307 read with section 34 Indian Penal Code cannot be sustained. 13. The other question as to the fact of non-examination of the investigating officer Shri R.D. Sharma has no force inasmuch as it has been stated by Jeewandas Tyagi (P. W. 6) in para 2 to the effect that Shri R.D. Sharma is no longer in police service and his whereabouts are not known. Therefore, there is sufficient explanation for non-examination of Shri Sharma in the case. This question is of no consequence in view of the earlier finding that the guilt has not been brought home to the accused by legally sufficient and reliable evidence. 14. Accordingly, the appeal deserves to be allowed and is hereby allowed. The conviction and sentence of the accused appellant is set aside. His bail bond and personal bond shall stand discharged.