VIRENDRA SARAN, J. ( 1 ) AJIT Kumar Bajpai Pramod Kumar have filed this appeal against the judgment and order dated 24. 10. 1983 of Sri. Rudresh Kumar, VIlith Addi. Sessions Judge, Lucknow, convicting the appellants under Sections 307/34 and 307 IPC respectively and sentencing them to 3 years R. I. and a fine of Rs. 250/- each. In default of payment of fine, they have further been sentenced to two months R. I. ( 2 ) MR. Imtiyaz Murtaza, learned Counsel informed that Ajit Kumar Bajpai, appellant No. 1 has died and, therefore, his appeal abates. I have heard learned Counsel on behalf of appellant No. 2 and the learned State Counsel. ( 3 ) ACCORDING to the prosecution case, on 25. 3. 1981 there was some altercation between the informant Arun Kumar and Ajit Kumar Bajpai (since dead) regarding the theft of some Ranga (a metal used for shouldering ). Ajit Kumar Bajpai who was an employee of Navjeevan Press was in the habit of stealing the same and he was seen by the informant on 25. 3. 81. Informant threatened him that he would inform the Press Authorities. This annoyed Ajit Kumar Bajpai and he, in his turn, threatened the informant with dire consequences. Due to the above altercation, Ajit Kumar Bajpai alongwith the Pramod Kumar arrived at the canteen of the informant situated at the gate of Navjeevan Press on 28. 3. 1981 at about 9. 30 a. m. At that time informant Arun Kumar alongwith his servant Munna was busy in cleaning the tables and counter of the canteen. Both the appellants suddenly appeared there. Ajit Kumar Bajpai had a country-made pistol. There was some exchange of hot words between the accused and the informant and appellant Pramod Kumar exhorted Ajit Kumar Bajpai to fire at the informant Arun Kumar. On seeing this, Munna swung into action and hit on the hand of Ajit Kumar Bajpai with the result the pistol went off in the direction of the ground. No one received any injury. Hearing the sound of firing many persons rushed towards the canteen and the appellants left the scene. A report of the incident was lodged by Arun Kumar at P. S. Qaiserbagh, Lucknow, on 28. 3. 199 1 at 11. 30 a. m. which was registered as Case Crime No. 206 of 1981. No one received any injury. Hearing the sound of firing many persons rushed towards the canteen and the appellants left the scene. A report of the incident was lodged by Arun Kumar at P. S. Qaiserbagh, Lucknow, on 28. 3. 199 1 at 11. 30 a. m. which was registered as Case Crime No. 206 of 1981. ( 4 ) AFTER completion of the investigation a charge sheet was submitted against the appellants and they were committed to the Court of Sessions. The appellants pleaded not guilty and claimed to be tried. ( 5 ) IN support of its case the prosecution examined Saghir (PW 1), Sharafat (PW2), Mohd. Yunus (PW 3), Munna (PW 4), Zahir (PW 5), Prithvi Pal Singh, HC (PW 8), Vijai Bahadur Singh (PW3) and Arun Kumar informant (PW8 ). Out of these Saghir (PW1) and Mohd. Yunus (PW 3) did not support the prosecution case and were declared hostile. The appellant did not adduce any oral evidence in their defence. ( 6 ) AFTER the appraisal of evidence the learned Sessions Judge found the appellants guilty and has convicted and sentenced them as mentioned earlier. ( 7 ) I have heard Mr. Imtiaz Murtaza learned Counsel for the appellants and the learned Counsel for the State. I have also gone through the evidence on the record. ( 8 ) APPELLANT Ajit Kumar Bajpai has already died. We are now left with the case of appellant pramod Kumar. It is admitted case of the prosecution that Pramod Kumar was not even armed at the time of the incident and the incident of firing was preceded by a verbal altercation during which Ajit Kumar Bajpai whipped out a pistol and Munna warded off the shot aimed at Arun Kumar by hitting at the hand of Ajit Kumar Bajpai. The only allegation against the appellant is of exhortation. It is not uncommon that some exaggerations are made to fasten guilt to all accused. In its very nature the firing, if any, was due to the exchange of hot words between Ajit Kumar and informant Arun Kumar and there does not appear that there was prior meeting of minds between the two appellants Hence it cannot be said that the firing was done with the common intention to commit murder. In its very nature the firing, if any, was due to the exchange of hot words between Ajit Kumar and informant Arun Kumar and there does not appear that there was prior meeting of minds between the two appellants Hence it cannot be said that the firing was done with the common intention to commit murder. It appears to be an individual act of Ajit Kumar and by adding up the role of exhortation the liability of appellant Pramod Kumar is being sought to be fixed up. Ajit Kumar was already armed with a loaded pistol and he did not stand in the need of any exhortation. The entire circumstances emerging from the evidence go to show that the story of exhortation is of doubtful nature. In the result, the appeal filed by Ajit Kumar Bajpai abates. The appeal of Pramod Kumar is allowed and he is acquitted. Pramod Kumar is on bail. He need not surrender. His bail bonds are discharged. Appeal allowed. .