JUDGMENT Palok Basu, J. - This appeal has been filed by Mahmood, Nabban Khan and Shabban Khan against their conviction under Section 302, I.P.C. (Mahmood) and under Section 302/34, I.P.C. (Nabban Khan and Shabhan Khari) and sentence of imprisonment for life to each of them as passed by IV Addl. Sessions Judge, Moradabad on 6.5.78 in Sessions Trial No. 391 of 1977. 2. The charge against the appellant Mahmood was that he committed murder by intentionally causing death of Zahoor in village Masevi Rasoolpur within the limits of police station Mainather, district Moradabad on 2.10.76 at about 9.00 a.m. and thus committed the offence punishable under Section 302, I.P.C. and the charge against the appellants Nabban Khan and Shabban Khan was that they had shared the common intention of appellant Mahmood and, therefore, they had committed the offence punishable under Sections 302/34, I.P.C. Aggrieved by the aforesaid conviction they have preferred this appeal. 3. Learned counsel for the appellant Chaudhary Brahma Singh and learned A.G.A. for the State Sri S.N. Singh have been heard at length in this case and the entire record has been examined. It may be remembered that along with appellants another accused Munawwar Khan was also charged under Section 302/34, I.P.C. but he has beers acquitted by the learned trial Judge extending to him the benefit of doubt. 4. Benefit of the other details regarding motive, etc. the prosecution case is that on 2.10.76 at about 9.00 a.m. P.W. 1 Inayat, Khan along with decesed Zahoor he gone to purchase meat near the house of Sabir and Zahoor (another one). Four accused named above arrived there and seeing deceased Zahoor all of them became angry. Nahban Khan and Shabban Khan appellants and Munawwar Khan acquitted accused caught hold of Zahoor deceased and asked/incited accused Mahmood to shoot Zahoor on which Mahmood took out a pistol from the folds of his Tehmad and tired at Zahoor who fell down dead as a result of the gun shot hitting him on the neck. P.W. 1 Inayat Khan lodged a Ext. Ka 1 at 10.30 a.m. which was registered under Section 302, I.P.C. against the four accused vide general diary entry Ext. Ka 3 proved by P.W. 6, head Constable Sharafat Hussain. P.W. 7 Jagdish Bahadur Gupta Sub-Inspector was present at the Police Station and took out investigation. P.W. 1 Inayat Khan lodged a Ext. Ka 1 at 10.30 a.m. which was registered under Section 302, I.P.C. against the four accused vide general diary entry Ext. Ka 3 proved by P.W. 6, head Constable Sharafat Hussain. P.W. 7 Jagdish Bahadur Gupta Sub-Inspector was present at the Police Station and took out investigation. He reached the spot and completed all the formalities including panchayatnama and then after taking sample of blood stained earth and plain-earth and preparing the site plan sent the dead-body for post-mortem examination through constables. P.W. 2 Dr. R.C. Vedi found the deceased to be about 25 years of age and to have died about a day before the post mortem examination. He also found the body of the deceased to be well built and rigor mortis to have passed off from the upper limbs and to be present in the lower limbs, abdomen to be distended and skin pealing off at places. 5. Vide post mortem report (Ext. Ka 2) the doctor found the following ante-mortem injuries on the dead body of Zahoor. 1. Contusion 12 cms x 8 ems on the left side forehead left temple and left upper eye lid. 2. Multiple gun-shot wounds of entry with lacerated and inverted margins in an area of 10 cms x 9 cms on the front of chest over lower half of the sternum. These wounds were nine in number and blackening was present. The wounds were of varying depth, i.e. skin deep, muscle deep and chest cavity deep and were directed backwards and horizontally. On opening the chest wall, it was found congested under the injury. One big shot was recovered embedded in the muscles of the sternum in the middle. (a) One punctured wound with inverted and lacerated margins in the sixth intercoastal space of right side along the right boarder of sternum. This wound was ? cm in diameter v chest cavitry deep. (b) A punctured wound of ? cm. diameter x chest cavity deep with inverted and lacerated margins in the seventh intercoastal space on the right side. (c) A punctured wound of ? cm. diameter x chest cavity deep with inverted and lacerated margins in the eighth intercoastal space on right side along the right boarder of sternum. (d) Two punctured wounds, chest cavity deep and cm. cm. diameter x chest cavity deep with inverted and lacerated margins in the seventh intercoastal space on the right side. (c) A punctured wound of ? cm. diameter x chest cavity deep with inverted and lacerated margins in the eighth intercoastal space on right side along the right boarder of sternum. (d) Two punctured wounds, chest cavity deep and cm. apart from each other with inverted and lacerated margins in the left seventh intercoastal space. 6. During internal examination of the dead body, the doctor found the scalp to be congested, chest walls to be congested, plurae lacerated with 18 ounces of blood in right pleura cavity and 22 ounces of blood in left pleural cavity. Lungs were congested and middle and lower lobes of right lung were lacerated. Three shots were found in the lung. Lower lobe of the left lung was lacerated and in this lung two shots were found. The heart was congested and lacerated. There were two wounds, each of ? cm. diameter in the left ventricle of the heart and these wounds were cm. apart from each other and were through and through the left ventricle. Both the chambers of the heart were empty. Stomach contained 14 ounces of partially digested food matter. In the small intestine there was partially digested food in the upper part and stools in the lower part. Large intestine was also filled up with stools. 7. According to the post mortem report, the death of the deceased took place due to shock and haemorrhage as a result of gun shot injury sustained on the chest. 8. The charge sheet was, however, submitted by D.S. Sirohi because P.W. 7 Jagdish Bahadur Gupta has in the meantime, been transferred. 9. The appellants denied the prosecution case and attributed their false implication due to enmity and suspicion. They set out various reasons for their false implication. They however, did not produce any witness in defence. 10. P.W. 1 Inayat Khan, informant, P.W. 3 Wali Jan and P.W. 4 Ali Daad Khan are the eye-witnesses in the present case. At this stage the learned. They set out various reasons for their false implication. They however, did not produce any witness in defence. 10. P.W. 1 Inayat Khan, informant, P.W. 3 Wali Jan and P.W. 4 Ali Daad Khan are the eye-witnesses in the present case. At this stage the learned. counsel for the appellants argued that the case of the appellants Nabban Khan and Shabban Khan stands entirely on the same footing as was the case of the co-accused Munawwar Khan who has been acquitted by the learneo trial Judge and against which there has been no Government Appeal and the order was become final. He further brought to the notice of the court on an earlier occasion that the appellant Mahmood has died during the pendency of the appeal. Consequently a report was called from Chief Judicial Magistrate, Moradabad who has submitted his report stating therein that Mahmood has been murdered in the meantime. Consequently Mahmood's appeal has become infructous as having abated. 11. It is proved that the role of the appellants Nabban Khan and Shabban Khan is confined to inciting and it is difficult to believe that they could have shared the intention of Mahmood appellant in killing deceased Zahoor because the pistol was taken out by Mahmood from the folds of Tehmad. It is rightly argued that the appellants Nabban Khan and Shabban Khan could not have had even the knowledge of the presence of the pistol with Mahmood. Even as it is the prosecution case itself is that it was a sheer chance that the appellants had come at the place where the deceased Zahoor had gone with P.W. 1 Inayat Khan to purchase meat. For such sudden out burst of anger, as stated by the prosecution witnesses the maximum that can be said is that the above two appellants could not have meant under any circumstances to kill the deceased Zahoor. 12. Coming to the statement of P.W. 1 Ianyat Khan that the appellants Nabban Khan, Shabban Khan and Munawwar Khan had caught hold of the deceased Zahoor and then on their inciting Mahmood fired a shot, it may be noted that the accused would be taking too much of risk in being close to the deceased and thus making themselves available `or being hit by the same cartridge or pellets. If three persons had really caught hold of the deceased there would be hardly any space left for shooting at by Mahmood appellant. Therefore, the theory as propounded by the prosecution concerning inciting and then catching hold of the deceased by the two appellants appears to be over doing and does not inspire confidence. Munawwar Khan having already been extended the benefit of doubt by the learned trial Judge, it stands to reason to accept the argument of the learned counsel for the appellants that the appellants Nabban Khan and Shabban Khan may also be extended the same benefit. 13. In view of the aforesaid discussion it has to be held that even if the prosecution ease is believed vis-a-vis firing at Zahoor deceased by Mahmood the case against the appellants Nabban Khan and Shabban Khan appears to be doubtful and they are entitled to its benefit. The charge against them cannot be said to have been proved beyond reasonable doubt. The appeal of appellant Mahmood for the reasons stated above abates. 14. The appeal of Mahmood abates. The appeal Nabban Khan and Shabban Khan appellants is allowed. Their conviction under Sections 302/34, I.P.C. and sentence of imprisonment for life is set aside and they are acquitted of the charges levelled against them. They are on bail, they need not surrender and their bail bonds are discharged.