Judgment R. N. Thakur, S. H. S. Abidi, JJ. 1. Both these appeals arise out of the same judgment and therefore they have been heard together and are being disposed of by this common judgment. 2. It may be stated here that the learned counsel for the appellant has submitted that appellant Bachul Nonia has already been killed and therefore his appeal stands abated. 3. The prosecution case leading to this appeal as stated by P. W.1, the informant is that on 22-12-1979 at about 7.30 a. m. in the morning he (P. W.1)was going to attend the call of nature towards the field in the north of village jamira. His uncle Gupta Singh was going ahead of him with a plough on his shoulder. Baleshwar Yadav (P. W.2), Parmeshwar Kumar (P. W.3) and Doma dusadh (P. W.7) were also going behind him (P. W.1 ). When the deceased (Gupta Singh) came on a bridge this appellant along with Buchul Nonia reached there and on the order of the appellant, Buchul Nonia, fired his pistol on Gupta singh with the result that Gupta Singh fell down and died then and there. Thereafter this appellant alongwith Buchul Nonia field away. 4. On the same day at about 9.15 a. m. P. W.1 went to Arrah Mufassil police Station under whose jurisdiction the place of occurrence situated and give his statement on the basis of which Ext. B was drawn up. P. W.9 took up the investigation, went to the place of occurrence and prepared Inquest Report and sent the body for post-mortem report. Thereafter he submitted the charge-sheet after completing the investigation. 5. Subsequently this appellant along with Buchul Nonia was put on trial where nine witnesses were examined on behalf of the prosecution. Appellant pleaded his innocence. His further defence was that he was suffering from tuberculosis on the date of occurrence and therefore he was unable to commit the offence. One witness has been examined to support his case. 6. After considering the entire evidence, the learned trial court convicted this appellant for an offence under Sec.302 read with Sec.34 of the indian Penal Code and sentenced him to undergo rigorous imprisonment for life. 7. One witness has been examined to support his case. 6. After considering the entire evidence, the learned trial court convicted this appellant for an offence under Sec.302 read with Sec.34 of the indian Penal Code and sentenced him to undergo rigorous imprisonment for life. 7. Appellant Buchul Nonia was convicted under Sec.302 of the Indian penal Code and was sentenced to undergo rigorous imprisonment for life and he was further convicted under Sec.27 of the Arms Act and sentenced to undergo rigorous imprisonment for seven years. 8. Learned counsel appearing for the appellant has submitted that this appellant (Balister Sharma) did not take part in assault. The part alleged against him is that he instigated the other deceased appellant to kill and even on the point of this instigation the prosecution evidence is not consistent and in support of his argument he has referred to the evidence of witnesses on this point P. W.1 has stated that when this appellant came near the deceased he said "mar Mar kah Lalkara". P. W.2 has stated that this appellant withheld the deceased and then another appellant shot him dead, P. W.3 has stated that when this appellant came near the deceased, he said "aub ka Takat Dhur". In the F. I. R. it is stated that this appellant said "mar Sale Ko. " 9. Therefore, it is true that these witnesses have said that this appellant was present there but the alleged part played by him is not consistent as described by the witnesses. Moreover, the motive for the occurrence is the enmity. Admittedly this appellant had no enmity but according to the prosecution evidence he was a friend of Buchul Nonia. It is also stated that Satya Narain Ahir, sheo dhari Ahir, Jayram Ahir, Rampal Ahir and Krishna Ahir named in the F. I. R. who had seen the occurrence ha d not been examined in the prosecution case. P W.4 saw this appellant running away but he was asked to identify the appellant in the dock then he volunteered that his eye sight was weak. He then went near the dock of the accused and identified the accused person. 10. Taking into consideration all these facts we find and hold that this appellant is entitled to get benefit of doubt. He then went near the dock of the accused and identified the accused person. 10. Taking into consideration all these facts we find and hold that this appellant is entitled to get benefit of doubt. Accordingly his appeal is allowed and the order of conviction and sentence passed against him is set aside and he is discharged from the liability of the bail bond. Appeal allowed.