N. C. Jain, C. J. (Acting) — This appeal has been filed by the appellant against the judgment of the learned Sessions Judge, Jorhat, convicting him under section 302/34IPC and sentencing him to undergo imprisonment for life. He has further been directed to pay a fine of Rs.200/-, in default of which he is to undergo rigorous imprisonment for 3 (three) months more. The prosecution story, as has been unfolded in the First Information Report lodged by Smti Pratima Bala, wife of the deceased is that her husband Amulya Das, while coming back from the house of his elder brother was attacked with sharp weapons by opposite party. The First Information Report, Ext 2 dated 22.7.87 reads as under : "The Officer-in-charge, Teok Police Station. Petitioner : Smti Pratima Bala as, W/o late Amulya Das, Teok Telia Gaon. Opposite party : (1) Shri Lokeswar Das, S/o Jairam Das. Shri Sushil Das, S/o Shri Manik Das. A muslim unknown boy, Teok Telia Gaon. Sir, Humble submission is that on 21.7.87 at about 10 PM while my husband, Amiilya Das was on his way back home from the house of his elder brother Sri Mitharam Das, a co-villager, the aforesaid accused person attacked him with sharp weapons, causing him severe injury, on his head on the National High Way, running through Teok Teliya Gaon. They assaulted my husband's elder brother Mitharam Das too with lathi and caused severe injury on the leg when the latter came to the place of occurrence on hearing the alarm raised by my husband upon being attacked by the opposite party. On hearing the complete description of the occurrence from my husband's elder brother Sri Mitharam I lodged an ejahar. My husband died in an injured condition while he was being taken to PS. It is therefore prayed that proper steps be taken. I the scribe, do not know about the occurrence. I wrote the ejahar as dictated by the petitioner, read it over to her and obtained her signature thereon. Ext 2 (I) Sd/- Illegible, Sd/- Smti Pratima Bala Das Sessions Judge, Jorhat6.5.91 22.7.87" 2. At very outset, it deserves to be noticed that the other two accused absconded during trial compelling the trial Court to proceed against the appellant alone who has been convicted and found guilty under section 302 with the aid of section 34 of the lPC. 3. At very outset, it deserves to be noticed that the other two accused absconded during trial compelling the trial Court to proceed against the appellant alone who has been convicted and found guilty under section 302 with the aid of section 34 of the lPC. 3. The prosecution, during trial has produced PW 1 Mitharam Das, the real brother of the deceased. He has stated that about 3 years back, at about 7/8 PM on a Wednesday night, Amulya Das (deceased) went to his house at about 6 PM and invited him to see his new house. The witness went with Amulya to see his newly constructed house and after seeing it, they came together. The witness further stated that on a point about 30/40 feet away they separated to go to their respective houses when he heard the cry of Amulya. He lighted the torch and rushed towards the place and found appellant/accused Lokeswar catching hold of Amulya when absconding accused Sushil gave a dao blow on his head from behind. The witness further stated that he raised the alarm when the Muslim accused gave a blow on his leg with an iron rod. This witness, PW 1 went on to state that on receipt of the blow, Amulya (deceased) gagged Lokeswar. On the raising of the alarm, Chandrakanta, son of the witness reached the place of occurrence and he fell down on receipt of the blow. Barring Lokeswar (appellant) the other two accuseds fled away. Lokeswar (appellant) remained gagging with Amulya as he died instantaneously. The witness remained in hospital for 3 months , as his bones of right leg were broken. The accused were identified by the witness, his son Chandrakanta. In cross examination, the witness denied that Lokeswar (appellant) was not gagging Amulya (deceased). It was admitted by PW 1 that they had good relations with the family of Lokeswar (appellant) before the occurrence. The witness pleaded ignorance regarding Sushil having a quarrel at the house of Amulya (deceased) four days before the occurrence regarding his daughter. PW 2 is Chandrakanta Das, the son of PW 1. He has supported the version given by his father. In cross-examination, he has denied that the appellant had any injury on his person. He has further stated in cross-examination that he was the first person to reach the place of occurrence after hearing the alarm. PW 2 is Chandrakanta Das, the son of PW 1. He has supported the version given by his father. In cross-examination, he has denied that the appellant had any injury on his person. He has further stated in cross-examination that he was the first person to reach the place of occurrence after hearing the alarm. He was constrained to admit that Sushil, the other accused had no enmity with Amulya (deceased). He has pleaded lack of knowledge whether deceased had any enmity with Lokeswar (appellant). Dulal, PW 3 is the other nephew of the deceased. He has also supported the prosecution version. PW 4 is the wife of the deceased. However, she being not an eye witness, her statement does not improve prosecution case. 4. PW 7 is the Investigating Officer. He has stated that after the receipt of the information regarding the commission of the crime, he visited the place of occurrence and learnt there that the injured had already been taken to the police station by the public and that the assailant Lokeswar Das was also caught hold and made over to the police. He further stated that he seized one wooden buttom, one 3 batteries torch light, one kapi dao, one howai sandal and one markin dhoti with blood marks vide seizure list Ext 1. At the police station, he received written ejahar (report) Ext 2. He made inquest over the dead body and sent it for post mortem examination. He has deposed that he arrested Lokeswar Das and that the other two accuseds remained absconding. In cross-examination, he stated that at the actual place of occurrence, there was no dwelling house. However, near that place there was newly constructed house of deceased Amulya. He further admitted in cross-examination that PW 4 Pratima Das did not tell him that she saw Lokeswar Das being caught hold of by Chandrakanta and others for handing him over to the police. 5. PW 9 is the doctor, Sayed Akbar Hussain who performed post mortem examination over the dead boy of the deceased. He found the following injury: "One sharp cut injury over the skull extending posteriorly from the external occipital protuberage to the face 1" away from lateral canthas of left eye over the left ear, size 8" x 3" x 4"." On dissection, he found a sharp cut injury over the skull. He found the following injury: "One sharp cut injury over the skull extending posteriorly from the external occipital protuberage to the face 1" away from lateral canthas of left eye over the left ear, size 8" x 3" x 4"." On dissection, he found a sharp cut injury over the skull. He further found that there was rupture of mananges over the said area with laceration and haemotoma over the brain on the left side of celebrum of the said level. The skull was found to be cut. The injury was antemortem and death in the opinion of the doctor was due to coma following the injury sustained by the deceased. The injury was caused by heavy sharp cutting weapon like 'dao'. The doctor was of the opinion, that the injury might have caused instantaneous death in the ordinary course of nature. No cross-examination was levelled against the doctor. 6. The appellant in his statement under section 313 claimed to be tried and pleaded innocence. According to him, he was falsely implicated in the case. He led no evidence. 7. As has been noticed above, the appellant has been found guilty of the charge under section 302 with the aid of section-34 of the Indian Penal Code. 8. The counsel for the appellant has strenuously argued that admittedly the appellant did not give any blow either to the deceased or to the witness. He was not even armed. He was alleged to be catching hold of Amulya when a single blow was inflicted by Sushil The precise argument of the counsel is that in view of the aforementioned case of the prosecution, the accused could have no common intention to kill the deceased and, therefore, he could not be convicted under section 34 of the IPC. The counsel has cited several judicial pronouncements in order to contend that the appellant could not be convicted with the aid of section 34 of the IPC. The nearest to the case in hand is a decision of the Supreme Court reported in AIR 1997 SC 3501 (Chhotu & others vs. State of Maharashtra). In Chhotu & others (supra), the Apex Court gave benefit of doubt to an accused who was seen standing with a knife in his hand along with other accuseds who had given repeated blows to the deceased. In Chhotu & others (supra), the Apex Court gave benefit of doubt to an accused who was seen standing with a knife in his hand along with other accuseds who had given repeated blows to the deceased. It was held by the Apex Court that an accused standing with a knife could not be held to have shared the common intention. The following observations of the Apex Court can be quoted with advantage : "13. That brings us to the role played by A4 in the incident. According to PWs 3 and 8 at the time of assault he was standing with a knife. From the cross-examination of PW 3 we, however, find that before the Investigating Officer he did not state that A4 was holding a knife in his hand though he spoke of his presence. Even if we proceed on the assumption that A4 was there with knife still we feel that we will not be justified in reaching the firm conclusion that he shared the common intention with A1 to A3 to commit the murder. As earlier noticed the deceased had sustained 55 incised injuries on his person which indicates that Al to A3 had given repeated blows upon him for sometime. Considered in that context it was expected of A4, if really he was sharing the common intention of the other three to commit the murder, to assault the deceased with the knife he was allegedly carrying. He is, therefore, entitled to atleast the benefit of reasonable doubt. 14. On the conclusions as above we uphold the convictions of Chhotu alias Umesh (Al), Ramu Dawre (A2) and Deepak ajias Balya (A3) under section 302/ 34 IPC and sentences of imprisonment for life awarded to them by the High Court. We, however, set aside the conviction of Prashant Jadav (A4) for the above offence and acquit him. Let him be released fortwith unless wanted in connection with some other case. The appeal is thus disposed of." In the case of Pirichhat & others vs. State of Madhya Pradesh, AIR 1972 SC 535 , the Apex Court had observed : "... We, however, set aside the conviction of Prashant Jadav (A4) for the above offence and acquit him. Let him be released fortwith unless wanted in connection with some other case. The appeal is thus disposed of." In the case of Pirichhat & others vs. State of Madhya Pradesh, AIR 1972 SC 535 , the Apex Court had observed : "... Several persons can simultaneously attack a man and each can have the same intention to kill and can individually inflict a separate injury but yet none would have the common intention required by section 34 IPC because there was no prior meeting of minds to form a pre arranged plan and, therefore, none would be vicariously liable and convicted for the act of any other person and, therefore, they were entitled to be acquitted." 9. In the case of Rangaswamy vs. State of Tamil Nadu, AIR 1989 SC 1137 the appellant was found accompanying the accused who committed the murder. But considering that the appellant had no enmity with the victim and no instigatory words were uttered and the appellant later on surrendered before the police, the Apex Court held that it could not be said that there was any pre-meeting of minds and that the appellant could not be vicariously held responsible. 10. Adverting to the case in hand, it deserves to be noted that it has come in evidence that the appellant had good relation with the deceased before the occurrence. If the appellant had any pre conceived plan along with other two accused he would have fled away like the other two. His post crime conduct of not running away after the occurrence also shows that he had no common intention with the main accused to commit the murder. The allegation against the appellant of his catching hold the deceased is no doubt proved but this act alone does not prove his common intention or pre meeting of the mind with the other accuseds to commit the murder. It has come in evidence that the deceased remained gagging with the appellant even after the receipt of the injury. May be both the appellant and the deceased caught hold of each other simultaneously. The appellant did suffer an injury on his person and he was even sent to doctor for treatment as is evident from the injury report available with the case diary. May be both the appellant and the deceased caught hold of each other simultaneously. The appellant did suffer an injury on his person and he was even sent to doctor for treatment as is evident from the injury report available with the case diary. May be, PW 2 has denied regarding sufferance of injury by the appellant, but it is so mentioned even in the forwarding report of the investigating police officer. It was dark as has been admitted by PW 2. Therefore, the chances of the deceased giving some injury while gagging with him cannot be ruled out. 11. In view of the aforementioned factual position, the case law quoted above apply on all force upon the facts of the instant case. Rather the present case, in our considered view, stands on a better footing, inasmuch as, the appellant herein was unarmed. He did not even give a slap or a first blow to the deceased. 12. For the reasons recorded above, section 34, in our considered view, could not be applied to the facts of the instant case and the appellant could not be convicted with the aid of section 34 of the Penal Code. While exonerating the appellant of the guilt, we are conscious of the case law as has been cited by the counsel for the State including one of the earliest cases decided by the Honble Supreme Court which stands reported in AIR 1955 SC 287 (Shreekantiah Ramayya Munipalli & another vs. State of Bombay) for the proposition that for invoking section 34 of the Indian Penal Code it is not necessary for a particular accused to actively participate in the commission of the crime and that one accused may only stand as a guard to prevent any other person coming to the relief of a victim or to otherwise facilitate the execution of the common design and that such a person also commits an 'act' as much as his co-participants actually commit the planned crime. However, in the present case, evidence though creates serious suspicion in our mind, but it does fall short of establishing the guilt against the appellant beyond reasonable doubt and, therefore, no case cited by the counsel for the State is applicable. 13. For the reasons recorded above, the appeal is allowed, the conviction and sentence is set aside and the appellant is ordered to be set at liberty.