Judgment Om Prakash, J. 1. The appellants have been convicted for the offence punishable under Section 302 read with Sec. 34, I.P.C. and have been sentenced to imprisonment for life. 2. A sister of appellant Satyanarain was married to Lal Bahadur (P.W. 4) a brother of informant Dhanvir, According to the prosecution, she abandoned Lal Bahadur and went to the house of her brother Satyanarain leaving behind her ornaments. Prior to the occurrence, Satyanarain and Deonarain made repeated attempts to take back her ornaments forcibly but they were repulsed. The above caused enemity between the two families. 3. Further prosecution case, in brief, is that on the night in between, 19th and 20th June, 1977, informant Dhanvir and his brothers Sukhdeo (deceased) and Lal Bahadur (P.W. 4) and one Jangi (P.W. 2) were sleeping on their door near their cattle shed in village Basiha Tola, P.S. Dhaka, District-East Champaran. At about 11 in the night, there was some hulla in informants Janani Kita (female apartment) and he rushed inside his house. His brother Sukhdeo too rushed therein. Informants cousin Parikshan (P.W. 3) also entered into the house. There the informant saw 3 to 4 persons scuffling with the females of the family asking them to disclose where about of his sisters ornaments. He flashed his torch and identified appellants Satyanarain and Deonarain, his brother, and one Prasad. He could not identify the fourth. Satyanarain was armed with a country made gun and his companions had sticks by which they were assaulting the females. As soon as the informant flashed his torch Satyanarain opened fire injuring Parichan. Then the informant and his brother Sukhdeo started fleeing therefrom. The miscreants, too, started fleeing. They were chased by Sukhdeo and co-villager Sahdeo (P.W. 1). Parichan asked them not to chase but Sukhdeo and Sahdeo did not pay heed and continued to chase. Fleeing Satyanarain turned and fired at the chasers injuring Sukhdeo. Sahdeo returned and informed the informant that Sukhdeo had sustained fire arm injury. He further informed the informant that Sukhdeo had disclosed that he had identified the four miscreants. One of whom turned back and opened fire. Thereafter, the informant rushed there and found his brother Sukhdeo lying dead in the field of Nahiyam with firearm injuries on his chest and head. In the meantime Choukidar Ramswaroop (P.W. 7) and other co-villagers arrived who were told the entire happenings. One of whom turned back and opened fire. Thereafter, the informant rushed there and found his brother Sukhdeo lying dead in the field of Nahiyam with firearm injuries on his chest and head. In the meantime Choukidar Ramswaroop (P.W. 7) and other co-villagers arrived who were told the entire happenings. The dead body was removed to informants house where the wives of Sukhdeo and Jangi disclosed that they had identified Satyanarain, Deonarain and Prasad. They further disclosed that it was Satyanarain who had opened fire there. La! Bahadur and Jangi woke up after departure of the miscreants, 4. After recordings fardbeyan (Ext. 3) of informant Dhanvir at 2 a.m. on the same night, police held investigation and submitted chargesheet against Satyanarain, Deonarain and Prasad who, in due course, were charged under Section 302 read with Sec. 34, I.P.C. On consideration of the materials on record, the learned Additional Sessions Judge convicted and sentenced them, as above. 5. In their statements under Sec. 313, Cr. P.C. each of the appellants has denied the allegation and has pleaded that he has been falsely implicated. The defence, as put to P.Ws. is that there was illicit relationship between Lal Bahadur and wife of deceased Sukhdeo and Sukhdeo has been murdered by Lal Bahadur. 6. Evidence of P.W. 6, Dhanvir Rai, the informant, is that his brother Lal Bahadur was married to a sister of Satyanarain but she was in habit of leaving Lal Bahadur to her brothers house. In this connection Satyanarain and others visited him once or twice one year before the occurrence to demand back her ornaments. Informants evidence in his cross-examination shows that Lal Bahadurs wife used to be brought back but she used to leave her husband again and again. In this connection Satyanarain was contacted who disclosed that she would not return to her matrimonial home. She would be married for a second time. Evidence of P.W. 1 Sahdev Rai, informants cousin and next door neighbour, P.W. 2 Jogendra Rai and P.W. 3 Parichhan Rai, close neighbours of the informant, P.W. 5 Rarapati, widow of deceased Sukhdeo, is to the same effect evidence of P.W. 1 further shows that at the time of occurrance, Lal Bahadurs wife was in her mothers home. Evidence of P.W. 3 shows that she did not like to live in her Sasural. 7. Evidence of P.W. 3 shows that she did not like to live in her Sasural. 7. Further evidence of P.W. 6 the informant shows that on the eventful night he along with deceased Sukhdeo, P.W. 4 Lal Bahadur and P.W. 2 Jangi was sleeping outside his Janani kita near cattle shed. Hearing hulla raised by the females of the family he woke up and rushed inside the house with a torch. Sukhdeo and P.W. 1 Sahdeo followed P.W. 3 Parichhan flashed a torch raising protest and nameing Satan alias Satyanarain. He (P.W. 6), too, flashed his torch whereupon Satyanarain opened fire injuring Parichhan. P.W. 6 claims to have identified the three appellants out of the four miscreansts. His evidence shows that Satyanarain was armed with a gun and his companions had sticks. After injuring Parichhan, the appellants ran towards the west. He too came out Sukhdeo and Sahdeo chased the fleeing miscreants inspite of Parichhans advise not to chase. A little thereafter he heard report of gun fire. On his return, P.W. 1 Sahdeo disclosed that Sukhdeo had been shot dead by Satyanarain. But in his fardbeyan, Ext. 3, P.W. 6 does not say that Sahdeo had disclosed that Satyanarain had shot Sukhdeo. This is a material omission amounting to contradiction. That apart, P.W. 1 Sahdeo does not say in his evidence that he made such a disclosure to any P.W. Hence such evidence of P.W. 6 or any other P.W. on the point of disclosure of the name of the shooter by P.W. 1 Sahdeo Rai must be excluded from consideration. Further evidence of the informant is that the females of the house disclosed that it was Satan who had opened fire there in the house. Evidence of P.W. 5 Rampati, a sister in law of the informant, shows that she had disclosed the names of the assailants. 8. Corroborating the informant, P.W. 3 Parichhan whose house is amalgamated with that of the informant, says that he woke up hearing cries raised by the females in the house and rushed into the angan with his torch. He found the three appellants there with their fourth companion whom he could not identify. Satyanarain was armed with a gun. When he raised protest and Satyanarain opened injuring him in presence of P.W. 6 Dhanvir. P.W. 1 Sahdeo and P.W. 3 Jogi and others also arrived there. They chased the fleeing inttruders. He found the three appellants there with their fourth companion whom he could not identify. Satyanarain was armed with a gun. When he raised protest and Satyanarain opened injuring him in presence of P.W. 6 Dhanvir. P.W. 1 Sahdeo and P.W. 3 Jogi and others also arrived there. They chased the fleeing inttruders. A little thereafter he heard report of gun fire again. Jogi P.W. 2 returned and disclosed that Satan had opened fire killing Sukhdeo. Evidence of P.W. 2 Jogendra Rai shows that he had made such a disclosure. 9. P.W. 1 Sahdeo Rai, a cousin of the informant, has his house to the East to that of the informant intervened by three other houses. His evidence shows that on the eventful night hearing the report of gun fire he woke up and moved with a torch towards informants house to find that deceased Sukhdeo was chasing miscreants. Sukhdeo told him that Satyanarain, Deban and Prasad were fleeing away and asked him to chase them and accordingly, he started chasing them. His evidence further shows that when Sukhdeo named the three appellants, Satyanarain opened fire and Sukhdeo who was two laggies ahead of him (P.W. 1) fell down sustaining fire arm injuries on his head and chest, He died then and there P.W. 1 adds that he, too, flashed his two cell torch and identified the three appellants. Later on, villagers assembled and he disclosed the names of the three appellants to them. He returned to informants house and found P.W. 3 Parichhan having a gun shot injury on his thiegh. The females of informants house disclosed that they had identified the three appellants in the house. 10. Evidence of P.W. 2, Jogendar Rai, shows that on the eventful night he was sleeping at his Darwaza situated to the West of informants house intervened by only one house. Hearing Hulla he woke up moved towards informants house with a two cell torch where P.W. 3 Parichan disclosed that he was shot at and the miscreants had fled towards West P.W. 3 advised him not to chase the miscreants but he was not deterred. Sukhdeo and P.W. 1 Sahdeo were chasing the miscreants ahead of him. When Sukhdeo who was 5 to 6 laggies ahead of him, shouted that Satan was fleeing he (Satyanarain) who was behind his three fleeing companions, opened fire causing injury to Sukhdeo who died instantaneously. Sukhdeo and P.W. 1 Sahdeo were chasing the miscreants ahead of him. When Sukhdeo who was 5 to 6 laggies ahead of him, shouted that Satan was fleeing he (Satyanarain) who was behind his three fleeing companions, opened fire causing injury to Sukhdeo who died instantaneously. P.W. 2 asserts that in torch light he identified the three appellants of whom Satan was armed with a gun Further evidence of P.W. 2 shows that he returned to the informants Darwaza and disclosed that Satan had murdered Sukhdeo. The females of the informants house, too, disclosed that Satan, Devan and others had indulged in the assault in the house. His torch was seized by the investigating officer, who prepared seizure list which bears his signature Ext-1/1. 11. Evidence of P.W. 5, Rampati, the widow of deceased Sukhdeo, shows that on the eventful night, she was sleeping in the house. She woke up hearing the report of breaking of killi (wooden bolt) of the door and found the three appellant with a fourth unidentified person there Satan was armed with a gun and others had sticks. They had torches. She was assaulted by Deven, Satan opened fire at Parichan causing injury on his thigh. Thereafter, the miscreants fled away towards West. Evidence of P. W. 7. Ramsaroop Rai, a village Choukidar, shows that while on patrolling duty in the village, he heard report of gun fire and he visited informants house. Then he learnt about the occurrence and the names of the miscreants i.e. the appellants. He finds corroboration from P.W. 1 Sahdeo Rai. 12. Ext. 2. Post Mortem Examination Report, shows that Doctor Sita Ram Prasad, Civil Assistant Surgeon, Sadar Hospital, Motihari, District East Champaran, held post mortem examination on the dead body of deceased Sukhdeo on 20-6-1977 at 4-30 p.m. and found a number of pillet injuries on forehead, nose, cheek, neck, upper part of arm and chest all caused by gun shot and such injuries caused the death. 13. From the above discussion, I came to the conclusion that the prosecution has proved satisfactorily by cogent, reliable and consistant evidence of competent and natural witnesses beyond reasonable doubt that the three appellants along with their fourth unidentified companion entered into informants females apartment and indulged in assault. 13. From the above discussion, I came to the conclusion that the prosecution has proved satisfactorily by cogent, reliable and consistant evidence of competent and natural witnesses beyond reasonable doubt that the three appellants along with their fourth unidentified companion entered into informants females apartment and indulged in assault. Satyanarain was armed with a gun and he opened fire at Parichhan (when he made a protest) injuring him and thereafter they stared fleeing to be chased by deceased Sukhdeo and P.Ws. 1 and 2 and when Sukhdeo named Satan who was fleeing behind his three associates, he turned and opened fire at Sukhdeo leading to his death then and there. The fact that P.Ws. are cousins or relations of the informant is no good reason to reject this consistant and reliable evidence. Evidence of such witnesses is to be examined with due care and caution and it has been so scrutinised. 14. I am therefore of opinion that charge under Sec. 302 is fully established against Satyanarain. But in my view none of Deban and Prasad can reasonably and legally be held guilty of the offence punishable under Sec. 302 read with Sec. 34, I.P.C. simply because there is nothing on the record to show satisfactorily that any of them committed any act infurtherance of common intention of Satyanarain and theirs. Nothing on the record shows satisfactorily that there was any pre-planning by the three to commit murder of Sukhdeo or there was any rior meeting of minds of the three appellants to murder Sukhdeo. None of Deban and Prasad appears to have committed any act at all while fleeing. For liability under Sec. 34, I.P.C. commission of some overt act as well as prior meeting of minds to commit such act is necessary. The conduct of Deban and Prasad either before shooting of Sukhdeo by Satyanarain or subsequent to such shooting does not indicate that there was any prior meeting of their minds with that of Satyanarain to commit murder of Sukhdeo. In view of the evidence on the record, probabilities and circumstances, I am of considered view that it was an act committed by Satyanarain alone and individually without sharing any common intention with Deban and Prasad to murder Sukhdeo. In view of the evidence on the record, probabilities and circumstances, I am of considered view that it was an act committed by Satyanarain alone and individually without sharing any common intention with Deban and Prasad to murder Sukhdeo. I am therefore of opinion that both Deban and Prasad are entitled to be acquitted of the charge under Sec. 302 read with Sec. 34, I.P.C. No other charge with regard to occurrence in the female apartment of informants house has been framed by the Court below. Hence they cannot be held guilty of any other offence without having faced any charge framed by the trial court. 15. In Hari Krishna Singh V/s. State of Bihar 1988 BLJ 599, it has been held by the Supreme Court that mere common intention by itself is not an offence. Overtact infurtherance of such common intention by co-accused persons is necessary for application of Sec. 34 (in a murder case). 16. In Vishwanath Singh V/s. State of Bihar 1987 BLJ 695 , it has been held by a Division Bench of this Court that common intention to commit murder has to be inferred from subsequent conduct of the accused and their previous behaviour. 17. In Rambilash Singh V/s. State of Bihar 1989 PLJR 72, it has been held by the Supreme Court that there must be material to show that the overtact of one or more accused was done in furtherance of the common intention of all accused. Where such evidence is lacking, the appellants cannot be held liable under Sec. 302 read with Sec. 34, IPC. 18. Learned Counsel for the State has referred to a decision in the case of Ramyya V/s. State of Bombay -- , wherein it has been held that it is the essence of Sec. 34, IPC that the person must be physically present at the scene of occurrence and must actually participate in commission of the offence. But there must be some sort of preliminary planning by the accused and actual participation also with the intention of assisting in furtherance of the common intention of them all. It is essential that the accused join in the actual doing of the act and not merely in planning its perpetration. In my view, this decision is of no assistance to the State counsel. It is essential that the accused join in the actual doing of the act and not merely in planning its perpetration. In my view, this decision is of no assistance to the State counsel. Even if fleeing Deban and Prasad are considered to be present when their companion Satyanarain shot at Sukhdeo leading to his death, there is nothing to show at all that any of them had some planning with Satyanarain to murder Sukhdeo or Deban and Prasad committed any act to assist Satya Narain in committing murder of Sukhdeo. 19. True, neither the doctor who held post mortem examination nor the Investigating officer has been examined. But it has not been shown as to what material prejudice to the defence has been caused by their non-examination. Ordersheet of the learned Additional Sessions Judge shows that efforts were repeatedly made to procure their attendance. Summons were repeatedly issued to them. Letters were written to the Director, Health Services, Bihar, referring to previous correspondence and requesting him to direct Dr. Sita Ram Prasad Singh who had held post mortem examination, to appear for evidence. Similarly, Superintendent of police concerned was requested by a letter to direct the Investigating Officer who had already retired from the service to appear for evidence. In these circumstances, prosecution examined Dr. K. D. Singh, Civil Assistant Surgeon, as P. W. 8 to prove post mortem examination report Ext. 2, who was an expert and competent to reply to technical questions. 20. In Ganesh Ram V/s. State of Bihar 1990 (1) BLJR 462 it has been held by a Division Bench of this Court that Sec. 32 of the Evidence Act provides exception to the General Rule about post mortem examination report. If doctor is not easily available or is not likely to come within reasonable time and that there will be delay in disposal of the case then the post mortem examination report may be brought on the record through some person having technical knowledge of medical science and jurisprudence or through some doctor who may be able to answer the question, put by the prosecution as well as defence in respect of the writings of the doctor of post mortem examination report. 21. That apart, the defence has not challenged the shooting of Sukhdeo at the place of the shooting in the field. 21. That apart, the defence has not challenged the shooting of Sukhdeo at the place of the shooting in the field. Its case is that Sukhdeo was murdered not by Satyanarain but by P. W. 4 Lal Bahadur Singh. In such circumstances non-examination of the doctor or the Investigating Officer or absence of evidence of finding of blood or empty cartridge at the place of murder looses all its significance. 22. The defence case, appears to be highly improbale. It is surprising that no question on such defence has been put to P. W. 4 Lal Bahadur Singh in his cross-examination by the defence. It strongly suggests that such defence case is imaginary and a concoction. Had there been an iota of substance in such defence case, in all probabilities, it would have surely been put to P. W. 4 Lal Bahadur Singh himself that the murder was committed by him and not by Satyanarain, In such situation mere giving of such suggestion to other witnesses is of no consequence. 23. In view of the above, conviction of appellant Satyanarain Rai is altered to under Sec. 302, I.P.C. and his appeal is dismissed. But the appeal preferred by appellants Deonarain Rai and Prasad Rai succeeds and is hereby allowed. Both of them are acquitted of the charge under Sec. 302 read with Sec. 34, I.P.C. and are discharged from their bail bonds. A.N.Chaturvedi, J. 24 I agree.