Judgment A.P.SINHA and B.P.GRIYAGHEY JJ. 1. The appellant has been found guilty for the offence under Section 302/34 of the Indian Penal Code and has been sentenced to undergo rigorous imprisonment for life. 2. It appears that chargesheet had also been submitted against Jagarnath Singh and Darogi Mandal, but since they were absconding they could not be made available for trial. 3. The prosecution case, in brief, is that in between the night of 19th & 20th September, 1972, the deceased Bhagwan Mahto was sleeping at a little distance outside the Basa in village Ramdhan at Carhbeti Bhaiyar, P. S.Gogri, which was in the field of Anirudha Babu. At about midnight accused Jagarnath Singh, Darogi Mandal and the appellant came near the cot of the deceased, Jagarnath gave a dagger blow on his neck resulting into his death. After committing murder, the appellant had taken away a Mataka full of milk kept inside the Basa. Kaushalya Devi (P. W. 2) the informant along with her two small children were sleeping on a cot just at the door of the Basa and another son Birendar (P. W. 3) was sleeping with his father (deceased) on the same cot. At the time of occurrence, she was breast feeding one of her child and thus she was awake. According to her, Jagarnath had inflicted chhura injuries and the appellant had taken away the Matka, as stated above. 4. Raghav Prasad Singh (P. W. 6) on the date of occurrence was the Incharge of Maheshkhunt Out-post Police-station. When he learnt that a person has been murdered in the Bahiar, he entered this fact in the station diary and had started for the destination. He had reached the place of occurrence and bad seen the dead body. Kaushalya Devi was the wife of the deceased and he recorded her fardbeyan (Ext. 2). The fardbeyan was sent to Gogri Police-station through constable for instituting a case on the basis of which a formal first information report in the Gogri Police station was drawn up. 5. The motive for the murder is stated to be thac the appellant had entrusted a she-calf to the deceased on batai system on condition that when the she-calf would grow to be a cow, after first delivery the milk of the said cow will be shared half and half. 5. The motive for the murder is stated to be thac the appellant had entrusted a she-calf to the deceased on batai system on condition that when the she-calf would grow to be a cow, after first delivery the milk of the said cow will be shared half and half. As a matter of fact, when the occasion came, for a few days, the milk had been shared, but thereafter the deceased had refused to share the milk. This led to some dispute and consequently a Panchaity was held and in that Panchaity the cow had been given to the deceased. 6. Mrs. Anjana Prakash, learned Counsel for the appellant has submitted that as a matter of fact there is no reliable evidence against the appellant indicating his complicity with the crime or association with Jagarnath. Further it has been submitted that the fact of identification of the appellant is doubtful. 7. I find sufficient force in the submissions. It would appear from the evidence that there are certain improbabilities leading to doubt and suspicion regarding the genuineness of the allegations as also reliability of the evidence, in this case. The fact of identification is also not free from doubt. 8. The motive for the occurrence, as indicated above, on account of the dispute for sharing cf the milk, does not appear to be a compelling circumstance and has remained unestablished. No witness has been produced in support of the fact that there had been dispute, as said above, and as a matter of fact a Panchaity was held and some decision had been arrived at. However, even assuming this statement of the informant to be correct, it will have adverse impact upon the prosecution case itself, because that also might be a reason for naming the appellant and thus making him accountable for the murder of Bhagwan Mahto in the company of Jagarnath Singh. 9. It is not convincing ; rather it does not stand to credit that if the appellant had also accompanied Jagarnath Singh, he would be completely armless as it was expected that in such a situation, if Jagarnath Singa was carrying a dagger, the appellant ought to have also carried even a lathi but not a word has been stated that the appellant was carrying any weapon or even a lathi along with him. If the appellant had not carried any weapon or lathi, it is surprising and improbable that a person desirous to commit murder of another in the dead of night would be without any arm whatsoever. 10. Another improbability is that absolutely no overt act has been attributed whatsoever against the appellant and as a matter of fact, if the appellant would have been present there, he ought to have at least tried to catch-hold of the deceased who was definetly sleeping at that time in order to facilitate Jagarnath to inflict dagger injury on the deceased, but absolutely nothing is said about it. Another fact worth consideration would be that if the appellant would have gone inside the Basa, for taking away the Matka with milk and that too after the occurrence of murder of the first informants husband and since the appellant had no harm with him, Kaushalay Devi should have tried, to catch-hold of him and it was expected that the would have at least put some impediment in the smooth running away of the appellant and in that process there ought to have some disturbance with the Matka, and the milk that was there in the Matka ought to have, to some extent, fallen down on the ground. Absence of any such evidence makes the entire allegation with regard to the presence of the appellant for the crime extremely doubtful. 11. Now coming to the point of identification, it has been stated that only means of identification was the moon light. On perusal of the Patra of that period it appears that it was Pichli Paksha of Ekdasi and that being so, the moon ought to have been at that time gone towards the west and will, therefore, definitely make the case of identification towards the eastern side weak and not so firm as is expected ordinarily in moonlit night. The objective finding of the investigating Officer is that the basa was facing cast and the cot or the dead body was towards the south-east of that Basa and that being so definitely the deceased was in a slanting position from the eastern side. The objective finding of the investigating Officer is that the basa was facing cast and the cot or the dead body was towards the south-east of that Basa and that being so definitely the deceased was in a slanting position from the eastern side. Kaushalya Devi (P. W. 2) has stated in her evidence that during the time she was on a cot inside the basa and that being so ; firstly identification from inside the basa would be difficult considering the position of the colon which the deceased was sleeping and place where the informant was, and secondly it would be all the more difficult when the object was slantingly towards the south-east of the Basa. 12. Therefore, as stated above, the moonlight cannot be said to be sufficient for the purpose of clear and perfect identification in the situation. 13. If the plea of enmity is considered, it also looks strange, as no act in the crime has been attributed against the appellant although the same is against some one else (Jagarnath Singh). 14. There appears to beforce in the submission of Mrs. Anjana Prakash that how far the charge under Section 302 read with Section 34 of the Indian Penal Code can be said to be applicable against the appellant considering the facts and circumstances of this case. 15. There is no evidence to indicate that the appellant had any link with Jagarnath Singh. No motive for the murder by Jagarnath Singh has been stated. The observation of the trial court that Jagarnath Singh might have been hired for the purpose can be said to be without any basis whatsoever and that being so it is purely an inference resting on surmises and conjectures and that ought not have been in such a serious trial. Any element of common intention, either apparent or concealed, does not appear to be existing. Absence of any link, nexus or basis for common intention will be a matter for serious consideration that the murder of Bhagwan Mahto was in furtherance of common intention. Of course such common intention can be judged and assessed from the conduct and even when a person awaits makes him liable also for the act committed by some one also but that has to depend upon the important factor of "In furtherance of common intention". Of course such common intention can be judged and assessed from the conduct and even when a person awaits makes him liable also for the act committed by some one also but that has to depend upon the important factor of "In furtherance of common intention". There ought to be some link emotional or real, but I am afraid, at random meeting of two persons is not forming common intention. In the instant case, in addition that there has been complete absence of link or motive to combine, there is no material to indicate that at any point of time, before the actual murder had taken place, there was a meeting ground for the appellant with Jagarnath Singh. The alleged act of Chhura injury, in absence of any evidence that the Chhura was carried by Jagarnath Singh, all exposed within the knowledge of the appellant, will further eliminate the element of common intention as there mignt be an intention to commit theft of Matka and the appellant had absolutely no knowledge that Jagarnath Singh was carrying a dagger and he would indulge in such act of murder. This appears to be consistent from other circumstances as stated above that the appellant had not carried any weapon and, as a matter of fact, he had not committed any overt act whatsoever, during commission of the act of murder. 16. The statement of Ram Lakhan Mahto (P. W. 1) is of no aviil to the prosecution, because Kaushalya Devi (P. W. 2) has omitted to state in her earliest statement that she had narrated about the occurrence to Ramlakhan Mahto and the names of the assailants had been disclosed. 17. Therefore, on consideration of the evidence, it appears that it is two weak and unacceptable and the appellant has become entitled for the benefit of doubt and acquittal. 18. In the result, this appeal is allowed. The judgment and order of conviction and sentence passed by the trial court against the appellant are hereby set aside and he is acquitted.