JUDGMENT 1. - This appeal is directed against the judgment dated 30.4.1981 passed by the Sessions Judge, Tonk, whereby the accused appellant has been found guilty under Section 307/34, IPC, and was sentenced to five years' R.I. with a fine of Rs. 200/- (in default, to further undergo 2 months' S.I.). The main accused, Hakim has been sentenced to 6 years' R.I. under Sec. 307, IPC. 2. Brief facts given rise to this appeal are that on 11.5.1980 at about 8.45 p. m. Munshi s/o Suleman, r/o village Sandla lodged a verbal report at police station Todaraisingh, (district Tonk) alleging therein that he had been at Todarai Singh on the day of incident for some domestic work, that, at about 8 p.m. he met Bhanwaria appellant who offered him (Munshi) a cup of tea at the hotel of Jagdish and they took tea there and smoked; that, Bhanwaria offered to see cinema and they reached cinema house, where Hakim and Jamal Khan met them and Hakim made allegation against Munshi of having abducted his (Hakim's) wife but Munshi denied the charge; that, at this stage, Jamal abused Munshi and warned to kill him and that after this conversation, Munshi left from there for his house. Hakim, Jamal, Shafi and Bhanwaria (appellant) are alleged to have followed Munshi upto Katla, then he reached by the side of temple of Kalyanji, Bhanwaria is alleged to have caught hold of him at the neck from backside and Hakim inflicted several knife blows on Munshi saying that he should not allow him to go alive. At the very moment, Shafi and Jamal are also alleged to have reached the site and encouraged Hakim to finish Munshi. On hearing the cries, Hakim s/o Faiz Mohd. of village Sandla came there and caught hold of Hakim and in the meanwhile Hakim Bhati also arrived there. On seeing them, Shafi, Jamal and Bhanwaria fled away. It was further alleged that Abdul Rashid also came there, and on their intervention, Munshi was saved, else he would have been killed. 3. On the basis of the aforesaid report, the police registered a case under Sec. 307/34, IPC and investigation commenced. After completion of investigation, a challan was filed against the appellant under Section 307/34 IPC and u/s 307, IPC, against Hakim (main accused) and the case was committed to the Court of Sessions. 4. 3. On the basis of the aforesaid report, the police registered a case under Sec. 307/34, IPC and investigation commenced. After completion of investigation, a challan was filed against the appellant under Section 307/34 IPC and u/s 307, IPC, against Hakim (main accused) and the case was committed to the Court of Sessions. 4. Learned Sessions Judge framed charge under Section 307/34, IPC against the appellant. Eight (8) in all witnesses were examined by the prosecution in support of charge levelled against the appellant and co-accused Hakim. 5. Learned Sessions Judge examined the accused persons under Section 313, Cr. P. C. and the accused denied the allegations levelled against them in prosecution evidence and refused to produce any defence. Learned Sessions Judge, after hearing the prosecution and the defence, held the accused-appellant guilty for the offence under Section 307/34, IPC and the main accused, Hakim u/s 307, IPC and sentenced them as stated above. It is against this order of conviction and sentence, that this appeal is filed. 6. I have heard the learned counsel for the parties at length and gone through the entire record. 7. As said earlier, as per the facts mentioned in the F.I.R., it was the case of the prosecution that the accused appellant, who was not the resident of Todaraisingh, met the injured fortuitously in the market where the tea was offered by the appellant and on that offer, both the injured and the appellant took tea in a hotel and there they smoked. I may state that before holding a charge under Section 34 IPC proved, the prosecution is bound to show that there was a prior concert and meeting of minds in between the appellant and the main accused, Hakim. There is no evidence on record that the injured met the appellant at any time else where earlier on that day, rather it is so alleged that the injured came there on the very day from his village and under the circumstances, there could be no chance of having any planning in between the appellant and the main co-accused to trap the injured as alleged by the prosecution. 8. It is an admitted fact that at a time when the appellant and the injured reached the cinema house, they found there Jamal and Munshi who hurled abuses to the informant. 8. It is an admitted fact that at a time when the appellant and the injured reached the cinema house, they found there Jamal and Munshi who hurled abuses to the informant. Prior to this, injured is alleged to have been threatened of being killed by these persons, and after that, the injured went to the temple so as to go to his house. At that time, no overt act against the appellant has been alleged by the prosecution. Though the main co-accused was also present there at the spot, but the injured went to the temple at his own will. Under these circumstances, it was not known to the accused appellant that the injured would go to the temple. And, in this view of the matter, it cannot be said that the accused-appellant and the co-accused Hakim have planned to tell the injured to go to the temple. Moreover, there was a chance for the accused-appellant, the co-accused and so also Jamal & Safi to have beaten the injured but on that place, nothing happened. This shows that there was no prior concert in between the appellant and the main co-accused Hakim, and in these circumstances, the theory of catching hold of the injured by appellant is quite false, concocted, and is unbelievable. In the circumstances of the case, otherwise Hakim s/o Faiz Mohd. (PW 2), Hakim s/o Alladin (PW 3) and Hakim s/o Kaju (PW 4) would not have allowed the appellant to set free and would have caught hold of him, also. 9. The conduct of the appellant was quite normal at the time when he is alleged to have met the injured and as such, there is no consistency with the allegations levelled against the appellant particularly when there is neither any evidence of prior concert with the main accused nor is there any history of ill-feelings of the appellant towards the injured. The possibility of involving the appellant falsely cannot be ruled out. It was the incident which took place just after both the appellant and injured took tea at a hotel in a friendly terms. The possibility of involving the appellant falsely cannot be ruled out. It was the incident which took place just after both the appellant and injured took tea at a hotel in a friendly terms. The learned Sessions Judge erred in holding the knowledge of the appellant regarding act of Hakim, co-accused when there was no evidence on record to show even the knowledge of the appellant with regard to Hakim, co-accused having a knife in his pocket or that Hakim was having ill-feelings to the injured. It cannot be denied that the incident took place at the sour of the moment and the appellant should not have been held guilty for the act committed by the main accused. 10. After going through the judgment of the learned Sessions Judge, it also appears that the learned Sessions Judge has mis-read the evidence and has wrongly held that the occurrence as alleged by the prosecution was witnessed and well proved by the so-called eye witnesses, Hakim s/o Faiz Mohd. (PW 2), Hakim s/o Alladin (PW 3) and Hakim s/o Khaju (PW4). On the other hand, the statement of Munshi (PW 1) (injured) and all these 3 witnesses show that none of them have seen the actual occurrence. Munshi (PW 1) (injured) deposed that Hakim s/o Faiz Mohd. came on the spot after he (injured) fell down on the earth. The scene of failing down the earth is alleged to have occurred after Hakim main co-accused, has caused all the injuries. Hakim s/o Faiz Mohd. (PW2) after describing all the 4 injuries being caused by the main accused, deposed that at this stage, Hakim s/o Alladin (PW 3) reached the spot and that there after no overt act of the accused persons. After that, Hakim s/o Alladin (PW3) deposed that on hearing the voice of Munshi he reached the spot and found Munshi in an injured condition. At the time, it was dark and Hakim s/o Faiz Mohd. (PW2) had caught hold of Hakim accused. Hakim s/o Khaju (PW4) is a witness of site plan and is not an eye witness. In this view of the matter, the learned Sessions Judge was not justified in relying upon the evidence of these witnesses regarding their presence and stating the overt act of the appellant. (PW2) had caught hold of Hakim accused. Hakim s/o Khaju (PW4) is a witness of site plan and is not an eye witness. In this view of the matter, the learned Sessions Judge was not justified in relying upon the evidence of these witnesses regarding their presence and stating the overt act of the appellant. The correct reading of the statement of these witnesses in fact proved that none of them have seen the accused appellant by holding injured by neck from behind. Thus the conviction of the appellant is liable to be set aside. The statements of Hakim s/o Faiz Mohd. (PW2) and Hakim s/o Alladin (PW3) are not consistent with regard to the overt act of the accused-appellant. Munshi (PW 1) has deposed that the accused-appellant over-powered him by holding his neck. Hakim s/o Faiz Mohd. (PW 2) has deposed that the accused-appellant over-powered the injured by holding his both the hands from the back. Hakim s/o Alladin (PW 3) has deposed that at the time when he reached at the place of occurrence, he saw that Hakim s/o Faiz Mohd. (PW2) was held by the main accused Hakim and accused appellant was holding the neck of the injured whereas Munshi (PW1) and Hakim s/o Faiz Mohd. (PW2) have deposed that the accused appellant ran away from the place of incident when Hakim (s/o Faiz Mohd.) (PW2) caught hold the main accused. From these statements it appears that at the time when the main accused was caught hold by the witness, the appellant was not present at the place of occurrence. It is thus clear that Hakim s/o Alladin (PW3) gave a false statement against the accused appellant. 11. In view of the foregoing discussion, I am of the opinion that the case against the accused-appellant has not been proved beyond reasonable doubt and thus the accused appellant is entitled to the acquittal. 12. In the result, I allow this appeal, set aside the judgment dated 30.4.1981 passed by the Sessions Judge, Tonk and acquit the accused for the charges levelled against him. The accused-appellant is on bail, his bail bonds stand cancelled. He need not surrender.Appeal allowed. *******