M. K. MUKHERJEE, J, J. ( 1 ) TEJ Pal, Munshi and Chiranji, the three appellants before us, along with Ramesh and Neksey were placed on trial before the learned Additional Sessions Judge, Third Court, Etah. Against Ramcsh Charges under sections 148 and 302 of the Indian Penal Code were framed for committing the offence of rioting, armed with a deadly weapon, with the common object of murdering one Keval Singh and for committing flis murder and against the other four accused, charges under section 147 and 149 read with section 302 of the Indian Penal Code were framed. Against appellants Tej Pal and Neksey, charge under section 302 read with section 115 of the Indian Penal Code was also framed for the self-same murder. On conclusion of the trial, the learned Judge recorded an order of acquittal in favour of Ramesh and Neksey in respect of all the charges framed against them and in favour of appellant Tej Pal in respect of the charge under section 302 read with section 110 of the Indian Penal Code. He, however, convicted and sentenced the three appellants under sections 147 and 149 read with section 302 of the Indian Penal Code. Hence this appeal at their instance. ( 2 ) THERE can be no manner of doubt that Tej Pal, Munshi and Chiranji could not have been convicted under section 302 with the aid of section 149 of the Indian Penal Code when the Prosecution case was that the five accused only formed the unlawful assembly and two of them, namely, Ramesh, who allegedly shot Keval dead, and Naksey, who exhorted him, had been acquitted and there is no Government appeal against their acquittal. In spite of our above finding, let us examine the evidence adduced during the trial in the light of the observations made by the Supreme Court in the case of Mohan Singh v. State of Punjab, to ascertain whether the appellants were actuated by any common intention to murder Keval. There is on record the following three dying declarations of deceased Keval (i) the First Information Report which Narsing Pal (P,w. 3) claimed to have taken down on the dictation of his brother Keval Singh and lodged in the police station Avagarh with his signature thereon. There is on record the following three dying declarations of deceased Keval (i) the First Information Report which Narsing Pal (P,w. 3) claimed to have taken down on the dictation of his brother Keval Singh and lodged in the police station Avagarh with his signature thereon. (ii) the statement of the deceased Keval Singh recorded by the Investigating Officer under section 161 of the Code of Criminal Procedure and (iii) the statement of Keval recorded by Dr. S. Prasad, Superintendent, District Hospital, Bahriach (P. W. 6 ). ( 3 ) THE Additional Sessions Judge while dealing with the above dying declarations has not found them reliable at all in respect of the accused Ramesh and Naksey and he observed that they had been implicated as a result of tutoring. So far as the appellants are concerned, he proceeded to hold them guilty on the finding that they shared the common intention to murder Keval. The Additional Sessions Judge, in view of the Supreme Court decision in Godhu and another v. State of Rajasthan, could certainly examine, in spite of the dying declarations having been found to be unreliable with regard to Ramesh and Neksey, whether the appellants had made a plan and acted in concert to bring about the murder of Keval. But then, we find that the Additional Sessions Judge has totally misconstrued, and even misquoted, the evidence including the above dying declarations to record his finding of their guilt. ( 4 ) THE allegations against the appellants Tej Pal, Munshi and Chiranji in the First Information Report are that they had taken the informant Keval Singh to village Sarani for paying back the loan they had taken from him and Tej Pal after he had died, took him to his shop and at about 9. 00 P. M. Ramesh with them he had a quarrel in the morning, came along with neksey and on the investigation of the latter, shot at him whereby he sustained injuries and, thereafter, they both fled away. In the dying declaration recorded by Dr. S. Prasad (P. W. 6) it has been pointed out that Tej Pal appellant on the protext that there would be accounting in respect of the loan taken, took him to his shop along with the other two appellants. They told him that as it was very late, he might rest there. He acceded to their request. S. Prasad (P. W. 6) it has been pointed out that Tej Pal appellant on the protext that there would be accounting in respect of the loan taken, took him to his shop along with the other two appellants. They told him that as it was very late, he might rest there. He acceded to their request. While he was sleeping, the door of Tej Pals shop was knocked. He got up and enquired as to what was the matter. They told him that they wanted to gamble. It was at that time that the accused Raffiesh shot at him and that Neksey was accompanying him. They both fled away after he had sustained injuries. He chased them along with others up to some distance and fell down, thereafter. He was brought by some one to his village and, thereafter, was taken to the police station. ( 5 ) A critical examination of the above dying declarations would show that in the F. I. R. no suspicion had been expressed against the appellants of their having a hand in the crime in question. On the other hand, Ramesh and Neksey only were alleged to have been involved in the crime in question and Ramesh was said to have a motive became the deceased Keval had a quarrel with him in the morning. In the dying declaration recorded by Dr. S. Prasad, suspicion has been expressed that the deceased had been taken by Tej Pal to his shop seemingly for accounting but really with ulterior motive. In none of the dying declarations, however, there is any indication that there was the existence of a pre-arranged plan or that there had been a prior meeting of the mind. Even if the dying declarations were to be believed, it would only go to show that the appellants were indicted to the deceased, and nothing more. The Investigating Officer, Masood Murtaza (P. W. 8) in his deposition pointed that he did not find nay blood inside the shop of Tej Pal. The Additional Sessions Judge. In his judgment, has himself observed that the incident did not take place where it has been shown in the site plan Ex. Ka-5 prepared by the 1. 0. The Investigating Officer, Masood Murtaza (P. W. 8) in his deposition pointed that he did not find nay blood inside the shop of Tej Pal. The Additional Sessions Judge. In his judgment, has himself observed that the incident did not take place where it has been shown in the site plan Ex. Ka-5 prepared by the 1. 0. and in his own inspection note paper No. 56/a. He also had found Shaitan Singh P. W. 1, the only witness of fact relating to occurrence examined by the prosecution, to be unworthy of credit for a score of reasons, including these that Shaitan Singh of the F. I. R. may be a different person and his statement had been recorded under section 161, Criminal Procedure Code, more than a year after the incident. Besides Shaltan Singh had only stated that the appellants had taken Keval to Tej Pals shop for accounting in examination with the amount pays to by then, and nothing more from which it could be inferred that they could have planned the murder of Kava!. The Additional Sessions Judge, without there being any evidence, excluded that the deceased had been forcibly taken by the appellants inside the Baithak of Tej Pal. The appellants had been convicted as above the Additional Sessions Judge merely to the basis of conjecture and surmise and not as any incriminating evidence against them. ( 6 ) ON the conclusions as above, we allow this appeal and set aside the order of conviction and sentence recorded against the appellant. They are discharged from their respective bail bonds. Appeal allowed. .