P. P. GUPTA, J. ( 1 ) THIS appeal has been filed by Diwan Singh, Gyan Singh, Darshan Singh and Makhan Singh against the judgment and order dated 23. 10. 1978 passed by the Sessions Judge, Pilibhit, thereby convicting appellant Darshan Singh under Section 302, I. P. C. simpliciter and convicting the appellants Diwan Singh, Gyan Singh and Makhan Singh under Section 302/34, I. P. C. and sentencing each of them to imprisonment for life under the respective sections. ( 2 ) THE charge against -the appellants was that on 27. 9. 1987 at about 8. 30 P. M. they committed the murder of Kikkar Singh near the Jhala of Kartar Singh in Bazarghat No. 2, falling within Police Station Madho Tanda, Outpost Hazara and thereby committed an offence punishable under Sections 302 and 30. 2134, I. P. C. ( 3 ) ACCORDING to the prosecution case, Diwan Singh, Gyan Singh and Darshan Singh appellants are real brothers and Makhan Singh is their cousin. Sometime ago Kikkar Singh deceased had caused a stab wound to Jeet Singh, the son of maternal uncle of Darshan Singh in which Darshan Singh was a witness. Sometime later Kikkar Singh is said to have beaten Diwan Singh with lathies. There was, therefore, enough enmity between the accused on the one hand and Kikkar Singh on the other. In the night between 27/28-9-1987 at about 8. 30 P. M. Kikkar Singh deceased along Pahalwan Singh (P. W. 1) and Phuman Singh, P. W. 2, and Balbir Singh, P. W. 3 was coming towards the house of Kikkar Singh. Near the Jhala of Makhan appellants Darshan Singh and Makhan Singh armed with guns and appellants Diwan Singh and Gyan Singh armed with lathies came out from the Jhala side. Darshan Singh exhorted his companions to surround Kikkar Singh, so that he could shoot him dead. Thereupon all the four appellants ran towards. Kikkar Singh who ran towards his house raising alarm as a result of which Bakar Singh, father of the deceased, came out of the Jhala. In the meantime Darshan Singh appellant fired his gun from behind at Kikkar Singh hitting him on his back on account of which he fell down and died. Thereafter the accused ran away. The dead body of Kikkar Singh was removed to his house. Bakar Singh, father of Kikkar Singh deceased, lodged F. I. R. (Ex. Ka-4) at 10. In the meantime Darshan Singh appellant fired his gun from behind at Kikkar Singh hitting him on his back on account of which he fell down and died. Thereafter the accused ran away. The dead body of Kikkar Singh was removed to his house. Bakar Singh, father of Kikkar Singh deceased, lodged F. I. R. (Ex. Ka-4) at 10. 15 P. M. at the police outpost which was about 8 kms. away from the scene of occurrence. P. W. 6 Rajcsh Singh, head constable, made G. D. entries, a copy of which is Ex-Ka-5, registering the case. P. W. 7 Raghunath Singh Tyagi, S. I. was present at the police outpost at the time of lodging the F. I. R. He took up the investigation and recorded the statement of Bakar Singh and reached the scene of occurrence at 1. 40 A. M. Having found the dead body of Kikkar Singh in front of his house, he completed the inquest report on the dead body on 28. 9. 1977 at 7 A. M. in the presence of Panch as and prepared an inquest report Ex. Ka-6. He sent the dead body for post mortem examination through P. W. 8 Banwari Lal, and Kameshwar Prasad, constables, and the post mortem examination was conducted by P. W. 41. M. L. Mora on 29. 9. 1977 at 1. 30 P. M. The following antemortem injuries were found on the kikkar body of Kikkar Singh: 1. Gunshot wound of entry with inverted and lacerated margin 0. 6. cm. x. 6 cm. x. chest cavity on right side back of shoulder blade. 2. Gunshot wound of entry with lacerated and inverted margin, 6 cm. x 6 cm. x chest cavity 4 cms. above the injury no. 1 at 11 Oclock position. 3. Gunshot wound of entry with lacerated and inverted margin, 6 x 6 cm. x chest cavity on the left side back of chest 8 cms. outer to the mid-line, 11 th thorax vertebra. ( 4 ) GUNSHOT wound of entry 6 cm. x 6 cm. x chest cavity on the back 9fleft side chest at one outer borde of left scapula with lacerated and inverted margins. ( 5 ) GUNSHOT wound of entry. 6 cm. x. 6 cm. x bone deep on the back and inner side of right forearm 8 cms. below the elbow with lacerated and inverted margins. x 6 cm. x chest cavity on the back 9fleft side chest at one outer borde of left scapula with lacerated and inverted margins. ( 5 ) GUNSHOT wound of entry. 6 cm. x. 6 cm. x bone deep on the back and inner side of right forearm 8 cms. below the elbow with lacerated and inverted margins. The doctor had found that the injures were sufficient in the ordinary course of nature to cause death. According to the doctor, the deceased had died as a result of shock and haemorrhage resulting from the injuries which may have been caused between 8 and 9 p. m. on 27. 9. 1977. 4. On 30. 10. 1977 Diwan Singh and Gyan Singh were arrested whereas Darshan Singh and Makhan Singh surrendered in court later on. By two separate charge sheets all the four appellants were thus challaned. After due committal proceedings the case was committed to the court of Sessions and aggrieved by the conviction and sentences referred to above, the appellants have preferred this appeal. 5. In support of its case the prosecution has examined ten witnesses. As stated above, P. W. 1 Pahalwan Singh, P. W. 2phuman Singh, and P. W. 3 Balbir Singh are the eye-witnesses. P. W. 9 Makhan Singh son of Saudagar Singh is also witness of fact Both of them Balbir Singh and Makhan Singh son of Saudagar Singh have not supported the prosecution case. The other witnesses arc formal in nature whose details have been given above. ( 6 ) SRI Virendra Saran, learned counsel for the appellants has raised a short question for determination in this appeal. He has argued that so far as the role attributed to appellants Diwan Singh, Gyan Singh and Makhan Singh is concerned, that will he limited to following the deceased a few steps. He has argued that Makhan Singh had a gun but is not said to have used it. He has argued that so far as the role attributed to appellants Diwan Singh, Gyan Singh and Makhan Singh is concerned, that will he limited to following the deceased a few steps. He has argued that Makhan Singh had a gun but is not said to have used it. Similarly appellant Diwan Singh and Gyan Singh were allegedly armed with lathies but had not used their weapons either, It was also argued that the prosecution allegation that these three appellants, namely, Diwan Singh, Gyan Singh and Makhan Singh had responded to the inciting of Darshan Singh, co-appellant, should be thrown out for the simple reason that if Darshan Singh had fired shots aiming at the deceased Kikkar Singh, there was every likelihood of the rest of the appellants gelling firearm injuries. ( 7 ) SRI A. K. Dwivedi, learned counsel for the State, has, however, argued that the prosecution evidence being to the effect that the three appellants along with the main appellant Darshan Singh having proceeded a few steps together is indicative of common intention and, therefore Section 34, I. P. C. will be applicable. The entire record has been perused. ( 8 ) A notable factor is that appellants Darshan Singh and Makhan Singh have died during the pendency of this appeal. A report had been called from the C. J. M. Pilibhit, who has testified the aforesaid fact. Consequently, the appeal of Darshan Singh and Makhan Singh has abated. ( 9 ) THERE is enough force in the argument that there was no possibility of appellants Diwan Singh and Gyan Singh and the third appellant Mohan Singh trying to surround the deceased if they had known that the co-appellant Darshan Singh will be firing at deceased Kikkar Singh. It is rightly argued that the absence of any injury on these appellants indicates that it was the unfortunate act of Darshan Singh in firing at Kikkar Singh and the role of other three appellants following the deceased appears to be exaggerated. Even if the presence of the three appellants along with Darshan Singh is taken for granted, no overt act having been attributed to them and no injury by their weapons having been caused to them, no question of sharing common intention with co-appellant Darshan Singh to kill Kikkar Singh deceased arises. Even if the presence of the three appellants along with Darshan Singh is taken for granted, no overt act having been attributed to them and no injury by their weapons having been caused to them, no question of sharing common intention with co-appellant Darshan Singh to kill Kikkar Singh deceased arises. Therefore, the conviction of appellants Diwan Singh, anti Gyan Singh under Section 302/34, I. P. C. is to be set aside. The role of following a few steps after the alleged incitement by Darshan Singh and that too without using the lathi with which they were armed excludes the possibility of sharing the common intention of killing Kikkar Singh. ( 10 ) IN view of the aforesaid discussion this appeal is allowed. The conviction of appellants Diwan Singh and Gyan Singh under Sections 302/34, I. P. C. and the sentence of imprisonment for life thereunder are set aside. They are on bail. They need not surrender and their bail bonds are discharged since appellants Darshan Singh and Makhan Singh are dead, their appeal abates. Appeal allowed. .