( 1 ) THIS appeal is by Sohan Lal and Shiv Ram against the judgment and order dated 31-3-1991 passed by the then VI Additional Sessions Judge, Kanpur Nagar convicting and sentencing the appellants to imprisonment for life under Sec. 302 read with Sec. 34 of the Indian Penal Code. ( 2 ) ACCORDING to the prosecution case a nautanki was being played in the fair held in the Ram Lila ground in village Khujauapur within the circle of police station Mahrajpur District Kanpur Nagar in the night between 4th and 5th of Oct. 1984. In the said fair, head Constable Sohan Lal and Constable Purshottam Das were deputed on duty. It is alleged that both these persons after taking liquor at the house of Shiv Ram went to the residence of village chaukidar Ram Swarup P. W. 3 and they started hurling abuses to chaukidar. The brother of chaukidar Vinod told these persons that chaukidar Ram Swarup was not present and further asked them not to abuse Ram Swarup. On this the police constable declared Ram Swarup as his enemy. It is further alleged that thereafter they went to the betel shop of Radha Kishan and called Raja ram son of Ram Swarup chaukidar from there and took him to the fields of Mewa Lal and shot him dead there. The incident of shooting was witnessed by Babu Ram P. W. 1 and Shri Kishan P. W. 2. The F. I. R. of the said incident was got scribed by Ram Swarup chaukidar and the same was lodged at the police station at 8. 40 a. m. Head Constable Shiv Autar Pandey P. W. 8 prepared check report Ex. Ka5 and registered the case at G. D. No. 11 vide copy Ex. Ka7. The first informant Ram Swarup also deposited an empty cartridge at the police station which he recovered from the place of incident and the same was taken into possession by Head Constable Shiv Autar Pandey through memo Ex Ka7. S. I. Har Bajan Arya P. W. 10 was the station officer of P. S. Narbal. He got information of the present murder on wireless and when he reached the place of incident, Circle Officer, Station Officer of police station Maharajpur, Addl. S. P. and others were already present there. S. I. Har Bajan Arya P. W. 10 was the station officer of P. S. Narbal. He got information of the present murder on wireless and when he reached the place of incident, Circle Officer, Station Officer of police station Maharajpur, Addl. S. P. and others were already present there. Under the oral order of the Circle Officer, he took up investigation and recorded the statement of first informant Ram Swarup. He also inspected the scene of occurrence and prepared site plan Ex. Ka8. The investigating officer arrested Head Constable Sohan lal and Constable Purshottam Das on the same day. The personal gun of Head Constable Sohan Lal was also taken into possession through memo Ex. Ka 9. Further investigation was then entrusted to S. I. S. . under the order of S. S. P. It further appears that during further investigation statements of Babu Ram P. W. 2 were recorded and the recovered gun and cartridges were sent to Forensic Science Laboratory, Agra for examination and in the opinion of Ballistic Expert P. W. 5 Ram Asrey, the recovered cartridge was fired from the gun Ex. Ka1 which was recovered from the custody of accused Sohanlal. The S. I. S. on completion of investigation submitted charge sheet against the appellants alongwith constable Purshottam Das and all the three were then sent for trial before the Sessions Court. ( 3 ) DR. M. P. Garg conducted the autopsy of the dead body of the deceased Raja Ram and found the following ante mortem injuries :- 1. Gun shot wound of entry 3cm x 3cm x chest cavity deep on sternum 8cm below upper end of sternum. Margin inverted blackening, tattooing, charring present around the wound. Direction of wound : Front to left obliquely. After breaking the sternum of 5th, 6th,7th ribs of left side chest, then goes into heart pierces the plura and goes into left lung. This left lung is also badly lacerated then pierces the plura and then pellets lodged into the left side back (obliquely ). 2. Gun shot wound of entry 4 cm x 3. 5cm x abdominal cavity deep on lower end of sternum, and epigastrium, 5. 5 cms below injury No. 1 margin inverted, blackening, tattooing, charring present. Direction : front to left obliquely. After breaking the lower end of sternum then goes into stomach, then backward Lacerated the upper part of liver. 2. Gun shot wound of entry 4 cm x 3. 5cm x abdominal cavity deep on lower end of sternum, and epigastrium, 5. 5 cms below injury No. 1 margin inverted, blackening, tattooing, charring present. Direction : front to left obliquely. After breaking the lower end of sternum then goes into stomach, then backward Lacerated the upper part of liver. ( 4 ) AFTER the framing of charges constable Purshottam Das died during the pendency of the trial and accordingly his case stood abated. ( 5 ) AT the trial, prosecution produced 10 witnesses, namely Babu Ram P. W. 1, Shri Kishan, P. W. 2, Ram Swarup P. W. 3, S. S. Shamsher Bahadur Singh P. W. 4, Shiv Ram Ashrey Pandey, Ballistic Expert P. W. 5, Dr. M. P. Garg P. W. 6, Asha Ram record keeper P. W. 7, Head Constable Sheo Autar Pandey P. W. 8, Shri S. P. Singh. Magistrate who conducted inquest P. W. 9 and S. I. Har Bhajan Arya P. W. 10. ( 6 ) BOTH the appellants in their statements before the Court denied the prosecution allegations. Accused Shiv Ram admitted that the deceased Raja Ram resided near his house and he took up a plea of alibi. He futher stated that one Ram Narain Seth of his village was having about 45 Bighas of land which were being ploughed earlier by Thakur Prasad brother of P. W. 1 Babu Ram but later on the accused took on batai those fields due to which they felt annoyed. According to him he was arrested from his house and was beaten and then falsely implicated in this case Accused Sohan Lal also denied the prosecution allegations and according to him during Mela he was beaten severely as a result of which he became unconscious and his gun fell down and from there the same was collected by the Investigating Officer. ( 7 ) IN support of the defence Head Constable Sohan Lal produced Jai Chand Singh D. W. 1 who stated that some Marpit had occurred between public and the police personnel who were performing their duties in the Ram Lila. ( 7 ) IN support of the defence Head Constable Sohan Lal produced Jai Chand Singh D. W. 1 who stated that some Marpit had occurred between public and the police personnel who were performing their duties in the Ram Lila. ( 8 ) LEARNED Sessions Judge placed total reliance on the evidence of P. W. 1 Babu Ram and P. W. 2 Shri Kishan and convicted the appellants after finding them guilty under Sec. 302 read with Sec. 34 of the I. P. C. ( 9 ) WE have heard Shri P. N. Mishra, learned counsel for the appellants and Shri R. K. Singh, learned A. G. A. appearing for the State. ( 10 ) LEARNED counsel for the appellants raised a number of submissions before us in order to show that the prosecution has not come with true version of the incident. The main thrust of the argument of the learned counsel for the appellants, however, has been that on the basis of evidence on record the appellants could not be convicted under Sec. 302 with the aid of Sec. 34 of the I. P. C. It is submitted by the learned counsel for the appellants that the circumstances which have emerged out from the evidence on record are not such from which inference of prior meeting of mind could be inferred in so far as the appellants are concerned. ( 11 ) WE have carefully examined the evidence on record and find much force in this submission of learned counsel for the appellants. ( 12 ) IT is well established principle that common intention must be anterior in time to the commission of the crime showing a pre arranged plan and prior concert and though it is difficult in most cases to prove intention of an individual, common intention has to be inferred from the act or conduct or other relevant circumstances of the case. The presumption of common intention is also subject to the same restriction as any other presumption and while drawing an inference it must always be remembered that it should not take the form of a bare surmise or conjecture or suspicion. Inference of common intention should never be reached unless it is a necessary inference deducible from the circumstances of the case. Inference of common intention should never be reached unless it is a necessary inference deducible from the circumstances of the case. The common intention should be inferred from the whole conduct of all the accused and not from an individual act done. Direct evidence to prove the intention of an individual accused may not be possible in each and every case and prior concern or pre-arranged plan may be inferred from the act and conduct of the accused in the light of the circumstances appearing in the case. The inference can be gathered by the manner in which the accused persons arrived at the scene and mounted the attack, the determination and concert with which the beating was given or the injuries caused by one or some of them, the others to assist those causing injuries, the concerted conduct subsequent to the commission of the offence for instance that all the accused left the scene of occurrence together and other acts which all or some may have done as would help the Court in determining the common intention. In other words the totality of the circumstances must be taken into consideration in arriving at the conclusion whether or not a particular accused had the common intention to commit an offence with which he could be connected. ( 13 ) IN the present case as per the prosecution story the deceased was shot dead by constable Purshottam Das alone by using the gun belonging to Head Constable Sohan Lal, the present appellant. In order to fasten vicarious liability of the said act on the appellants the prosecution has relied upon three main circumstances : firstly, the Motive, secondly that the appellant Shiv Ram called the deceased Raja Ram from the betel shop of Radha Kishan and took him inside his house where constable Purshottam Das and Head Constable Sohan Lal were also present and after some time the two appellants left the house of Shiv Ram in the company of Constable Purshottam Das and the deceased Raja Ram and they all went towards the field of Mewa Lal and thirdly, that when they all reached in the field of Mewa Lal Constable Purshottam Das fired two shots on Raja Ram and shot him dead then and there. The firing was done by Constable Purshottam Das from the gun Ex. I belonging to Head Constable Sohan Lal appellant. The firing was done by Constable Purshottam Das from the gun Ex. I belonging to Head Constable Sohan Lal appellant. ( 14 ) AS far as motive part is concerned the case of the prosecution is that soon before the occurrence Head Constable Sohan Lal and Constable Purshottam Das had gone to the house of chaukidar Ram Swarup and they both started hurling abuses. They were told by Vinod that Ram Swarup was not present at the house at that hour and asked them not to hurl abuses whereupon Sohan Lal and Purshottam Das told that Ram Swarup chaukidar would be their enemy. P. W. 3. Ram Swarup narrated the said fact in his examination in chief but in cross examination he admitted that he was not present at his house nor any such conversation took place in his presence and he was told all this by his brother Vinod. This part of his statement is thus hear-say and is not admissible in evidence. For the reasons best known to the prosecution, Vinod was not examined as a witness at the trial. Thus the motive factor as alleged by the prosecution has not been at all established. ( 15 ) THE other circumstance relied upon is that when Raja Ram was present at the betel shop of Radha Kishan, he was called by appellant Shiv Ram and they both went together inside the house of Shiv Ram where appellant Sohan Lal and Purshottam Das were also present. In order to prove this circumstance prosecution has relied upon the evidence of P. W. 1 Babu Ram and P. W. 2 Shri Kishan. They both admitted that they were interrogated by the Investigating Officer 18-19 days after the date of occurrence. P. W. 1 Babu Ram stated that he and P. W. 2 Shri Kishan were both present at the betel shop of Radha Kishan since 1. 30a. m. No plausible explanation has been advanced by either of them as to why they having waited at the same shop for about one and half hours upto 3a. m. when appellant Shiv Ram is alleged to have taken the deceased Raja Ram with him to his house. 30a. m. No plausible explanation has been advanced by either of them as to why they having waited at the same shop for about one and half hours upto 3a. m. when appellant Shiv Ram is alleged to have taken the deceased Raja Ram with him to his house. We are not at all impressed with the claim of both these witnesses that they were present at the shop of Radha Kishan at the relevant time particularly in view of the fact that both these witnesses in their statements recorded under Sec. 161 Cr. P. C. after 18 -19 days of the date of occurrence had not stated of such a fact. Both these witnesses in clear words before the trial Court admitted that they had not told such a fact either to the investigating Officer or to any other person and the said fact has been advanced by them for the first time in Court. They are admittedly next door neighbour of the informant yet surprisingly none of them conveyed this information to the first informant. At this juncture we may also point out that in the F. I. R. it is not mentioned specially that accused Shiv Ram had taken Raja Ram with him in his house from the betel shop. The name of Shiv Ram was conspicuous by its absence in the F. I. R. Rather the F. I. R. mentioned that after when Head Constable Sohan Lal and Constable Purshottam Das hurled abuses at the house of Ram Swarup they both went to the betel shop and took Raja Ram deceased with them to the field of Mewa Lal and then Raja Ram was shot dead. To us it appears that the theory that Raja Ram deceased was first called by Siv Ram to his house and from there the deceased went in the company of head Constable Sohan Lal, Constable Purshottam Das and Shiv Ram towards the field of Mewa Lal was developed during investigation in order to implicate Shiv Ram also and to make the presence of these two witnesses probable. In any view of the matter the aforesaid circumstance is not established beyond doubt. In any view of the matter the aforesaid circumstance is not established beyond doubt. ( 16 ) THE other circumstance on which reliance is placed is that after the four aforesaid persons had remained inside the house of Shiv Ram for about 15 minutes they all went together towards the field of Mewa Lal and there Constable Purshottam Das opened fired on Raja Ram with the gun belonging to Sohan Lal. Again in order to prove this circumstance the prosecution case depended entirely upon the testimony of the two aforesaid witnesses namely, Babu Ram P. W. 1 and Shri Kishan P. W. 2. We have already shown above that the presence of these two witnesses at the relevant time was not free from doubt and they appeared to be got up witnesses. In any view of the matter it does not sound to reason why these two witnesses would have kept on waiting outside the house of Shiv Ram specially when before their eyes both Shiv Ram and Raja Ram had gone inside the house of the former. There was no previous enmity between Shiv Ram and Raja Ram. These witnesses as per their own statements had no concern with accused Shiv Ram. Further it is noteworthy that P. W. 2 Shri Kishan in his cross examination admitted that the fact that Sohan Lal and Purshottam Das had also joined the company of Shiv Ram and Raja Ram from the house of Shiv Ram was not stated by him to the Investigating Officer or to any other person before his statement was recorded at the trial. Therefore, this part of the prosecution story also appears to have been developed at the trial. ( 17 ) WE have closely examined the statements of these witnesses and we do not find anything in their testimony which could convince us that these witnesses had some suspicion in their mind against the present appellants at the time when Shiv Ram is alleged to have called Raja Ram from the betel shop. ( 17 ) WE have closely examined the statements of these witnesses and we do not find anything in their testimony which could convince us that these witnesses had some suspicion in their mind against the present appellants at the time when Shiv Ram is alleged to have called Raja Ram from the betel shop. As already pointed out above it does not appear to be reasonable that these witnesses for no rhyme or reason would have followed Shiv Ram and Raja Ram for a distance of more than 200 paces from the betel shop to the house of Shiv Ram and then again to have covered a distance of more than 400 paces after waiting for about 10 to 15 minutes outside the house of Shiv Ram. These two witnesses to us appear to be got up witnesses and seem to have been introduced during investigation as a result of the brain work of the Investigation Officer. ( 18 ) IT may also be pointed out that P. W. 2 Shri Kishan in cross examination also stated that when Raja Ram came out of the house of Shiv Ram and started proceeding towards west in the company of accused persons he did not ask him as to where he was going and for what purpose. It is further admitted by him that when all the four reached in the field of Mewa Lal only Purshottam Das suddenly opened fire on Raja Ram and nothing was uttered by any of the appellants. Even no role of exhortation or catching hold is assigned to either of the appellants. Thus as per the evidence on record they were mere silent spectators. It has also come in evidence that soon after firing the shots Constable Purshottam Das ran away from the scene of occurrence carrying the gun with him with which he had fired upon the deceased. It was only after when hue and cry was raised that the two appellants also took to their heels. It is not the case of the prosecution that all the three accused had run together in the same direction. it may be that Head Constable Sohan Lal on seeing constable Purshottam Das using his gun might have run to apprehend Constable Purshottam Das, the possibility of the same cannot be ruled out. It is not the case of the prosecution that all the three accused had run together in the same direction. it may be that Head Constable Sohan Lal on seeing constable Purshottam Das using his gun might have run to apprehend Constable Purshottam Das, the possibility of the same cannot be ruled out. From the circumstances appearing in the case it cannot be reasonably inferred that the two appellants had shared the common intention with constable Purshottam Das in the commission of murder of Raja Ram deceased. From the mere fact that the gun of appellant Head Constable Sohan Lal was used by accused constable Purshottam Das, it cannot be safely inferred that the appellant Sohan Lal and constable Purshottam Das had a pre concert or prior meeting of mind for eliminating deceased Raja Ram. This view of our is further fortified from the fact that it has come in evidence of Babu Ram P. W1 that constable Purshottam Das had been often using and keeping the gun of Head Constable Sohan Lal even prior to the incident in question. Thus in the circumstances of the present case the mere fact that constable Purshottam Das fired the gun which belonged to Head Constable Sohan Lal would not lead to the only inference that accused Sohan Lal had lent it out to constable Purshottam Das for the purpose of killing Raja Ram. ( 19 ) ON a careful analysis of evidence on record, we find that the evidence regarding the sharing of common intention by the present appellants is not convincing and trustworthy and we are inclined to take a different view from the one taken by the learned Sessions Judge. From the circumstances appearing in the case it may not be just and proper to draw an inference of common intention against the appellants and to hold them vicariously guilty for the individual act of constable Purshottam Das in causing the death of Raja Ram. ( 20 ) FOR the reasons stated above, this appeal is allowed, the conviction and sentence of the appellants under Sec. 302 read with Sec. 34 I. P. C. are set aside and they are acquitted of the offence charged for. The appellants are on bail. They need not surrender, and their bail bonds are cancelled and sureties discharged. Appeal allowed. .