Judgment B.K.Jha, J. 1. The abovenamed both the appellants, Rinku Paswan and Brajesh Kumar Thakur @ Brajesh Thakur have been convicted under Sections 302/34 of the Indian Penal Code and sentenced to rigorous imprisonment for life. They have further been convicted under Section 27 of the Arms Act and sentenced to rigorous imprisonment for two years with a direction to run the awarded sentences concurrently. 2. Briefly the case of the prosecution is that on 6.10.1997 at about 8 a.m. the informant, Pankaj Ram of Village Mauzmabad P.S. Bhawanipur, District-Bhagalpur proceeded to his field situated on Mauzama Diyara for showing maize crops. On the way he met his co-villagers, Gunanand Ram, PW 9, Manoj Sah, PW 2 and Sulekha Kumari who were also going to their field in the said Diyara. At about 9 a.m. when he reached near old Dih of Mauzamabad Diyara he noticed that both the appellants were also coming behind him. The appellants reached near the informant and the appellant, Rinku Paswan, fired from his countrymade pistol at him from behind causing injury on the right side of his waist. Thereafter both of them made good escape in the west side. The motive behind the occurrence was a quarrel between the both sides one month prior to the incident on account of demand of subscription for Bajrangbali by the accused-appellants. 3. On the same day, i.e. 6.10.1997 at about 10.15 a.m., the informant, Pankaj Ram alongwith Gunanand Ram, PW 9, Manoj Sah PW 2 and others went to the Bhawanipur Police Station and lodged fardbeyan. On the basis of his fardbeyan a formal FIR was drawn up and a case was registered under Sections 324/307/34 of the Indian Penal Code and Section 27 of the Arms Act against both the accused-appellants. On the death of the informant Pankaj Ram, Section 302 of the Indian Penal Code, was added in this case. On completion of the investigation the I.O. submitted charge-sheet under Section 302/34 of the Indian Penal Code and Section 27 of the Arms Act against both the accused appellants. After cognizance of the offence and commitment of the case both the accused-appellants faced trial before the learned Additional Sessions Judge-I,Naugachia. 4. The defence of the appellants was plea of innocence and false implication due to dirty village politics. On behalf of the defence no witness was examined. 5. After cognizance of the offence and commitment of the case both the accused-appellants faced trial before the learned Additional Sessions Judge-I,Naugachia. 4. The defence of the appellants was plea of innocence and false implication due to dirty village politics. On behalf of the defence no witness was examined. 5. At trial the prosecution examined altogether 16 witnesses in support of its case. They are Madan Ram, PW 1, Manoj Sah. PW 2, Narayan Das, PW 3, Sulekha Devi, PW 4, Ruby Kumari, PW 5, Arjun Das, PW 6, Chhotey Ram, PW 7, Chhaguri Ram, PW 8, Gunanand Ram PW 9, Wirgun Das, PW 10, Suman Kumari Bharti, PW 11, Upendra Das, PW 12, Pinki Das, PW 13, Gita Devi, PW 14, the wife of the deceased- informant, Pankaj Ram, Pankaj Das, PW 15 and Dr. Pramod Kumar, PW 16, who conducted autopsy on the dead body of the deceased-informant, Pankaj Ram. 6. On consideration of the evidence and other materials adduced the learned trial Court accepted the prosecution case and convicted the accused-appellants as referred above. 7. As stated above the prosecution has examined altogether 16 witnesses. Out of them PW 2, Manoj Sah and PW 14, Gita Devi, the wife of the deceased-informant, Pankaj Ram are the material witnesses in this case. PW 1, Madan Ram, PW 3, Narayan Das, PW 4, Sulekha Devi, PW 5, Ruby Kumari, PW 6, Arjun Das, PW 8, Chhaguri Ram, PW 10, Wirgun Das, PW 12, Upendra Das, PW 13, Pinki Das PW 15, Pankaj Das, are the hostile witnesses and nothing material has come in their cross examination. PW 7, Chhotey Ram is a hearsay witness. PW 9, Gunanand Ram is an attesting witness of the fardbeyan of the deceased-informant, Pankaj Ram. His evidence is that the injured, Pankaj Ram, was taken to the Police Station and his fardbeyan was recorded there. He (this witness) put his signature thereon (Ext. No. 1). In cross examination he has given a go-bye to the above statements. He has stated that the statement of the informant, Pankaj Ram, was not recorded in his presence and later on his signature was obtained by the police. PW 11, Suman Kumar Bharti is an inquest report witness and has proved his signature (Ext. No. 2). PW 16 is Dr.Pramod Kumar, who conducted autopsy on the dead body of the deceased-informant, Pankaj Ram. PW 11, Suman Kumar Bharti is an inquest report witness and has proved his signature (Ext. No. 2). PW 16 is Dr.Pramod Kumar, who conducted autopsy on the dead body of the deceased-informant, Pankaj Ram. The Investigating Officer has not been examined in this case. 8. The evidence of PW 16, Dr. Pramod Kumar, is that on 9.10.1997, he conducted autopsy on the dead body of the deceased- informant, Pankaj Ram and found the following injuries : (i) Lacerated injury over right side of abdomen margin inverted with black charred, size 1/2" x 1/2" x whole abdominal wall, i.e. wound of entry. (ii) Lacerated injury over back of lower portion of abdomen right side margin overts, size 1" x 1/2" communicated wound to the wound of entry, I.e., wound of exist. There was a stitch wound on the right side of abdomen 4" x 1/2" having drainage tube inserted. In his opinion the death was due to shock and haemorrhage caused by fire arm. The time elapsed since death and post-mortem examination held was found within 24 hours. According to him the direction and distance of firing was from front to back and from more than 4 feets. He proved the post-mortem report(Ext.No.3). In cross-examination he has stated that the first medical report was not sent to him. Thus, the medical evidence is suggestive of the fact that the injured-informant, Pankaj Ram, died of the fire arm injuries and defence has also not disputed his homicidal, death. The defence has only challenged the involvement of the appellants in causing his homicidal death. 9. Now, I advert to the evidence of the material witnesses in this case. The evidence of PW 2, Manoj.Sah, is that on the sound of firing he came near the injured informant, Pankaj Ram and learnt the names of his both shooters, Brajesh Kumar Thakur and Rinku Paswan. Thereafter the informant, Pankaj Ram, was taken to his house and from there to the Police Station where he lodged the fardbey an. In cross-examination he has stated that he was not examined by the police. Thereafter the informant, Pankaj Ram, was taken to his house and from there to the Police Station where he lodged the fardbey an. In cross-examination he has stated that he was not examined by the police. The evidence of Gita Devi, PW 14, the wife of the deceased- informant, Pankaj Ram, is that on the alleged date while she was in her house at about 10 A.M., Gunanand Ram, PW 9, Manoj Sah, PW 2, Sulekha Devi, PW 4, Rubi Kumari, PW 5 and Pinki Das, PW 13, brought her injured- husband at the house. Then he was taken to the Police Station and gave statement there. She was also examined by the police. In cross-examination she has admitted to have stated before the police that her husband had disclosed the names of both the appellants as his assailants. She has further stated that she learnt about the occurrence from her husband. 10. From the aforesaid discussed evidence it is clear that there is no eye witness to the incident. The prosecution has relied upon the statement made by the deceased-informant, Pankaj Ram which was treated as FIR as well as dying declaration. It was made by the deceased-informant within about 2 hours of the incident. He clearly explained that on 6.10.1997 at about 9 a.m. when he reached near old Dih of Mauzabad Diyara he noticed that both the appellants were also coming behind him. The appellants reached near him and the appellant, Rinku Paswan, fired from his country made pistol at him from behind causing injury on the right side of his waist. The evidence of PW 2, Manoj Sah and PW 14, Gita Devi, the wife of the deceased is that after the in cidence the informant, Pankaj Ram, was brought to his house and from there he was taken to the Police Station. At the Police Station he lodged the fardbeyan in their presence. On post mortem examination, PW 16, Dr. Pramod Kumar, found entry wound over the right side of abdomen and exist wound over the back of lower portion of abdomen right side both communicating to each other. Thus, the medical evidence corroborates the version of dying declaration as regards the manner in which the injury was caused to the deceased-informant, Pankaj Ram. 11. Pramod Kumar, found entry wound over the right side of abdomen and exist wound over the back of lower portion of abdomen right side both communicating to each other. Thus, the medical evidence corroborates the version of dying declaration as regards the manner in which the injury was caused to the deceased-informant, Pankaj Ram. 11. The learned counsel for the appellants submitted that the fardbeyan should not be treated as dying declaration as it was recorded by the Police as FIR. In this context a reliance has been placed on a case of Sukhar V/s. State of U.P., reported in 2000 (1) Cr LJ 29 (SC) : 2000 (1) East Cr C 319 (SC) wherein it has been held that "the statement given by injured to Investigating Officer and also FIR lodged by him is not admissible as dying declaration under Section 32 of the Evidence Act". I find no merit in this contention of the learned counsel for the appellants. In the cited case the injured, Nakkal lodged the FIR on the date of occurrence, i.e., 17.4.1978 and while the trial was pending he died. The prosecution did not make any attempt to establish how he died or his death was in any way connected with the injury sustained by him on the relevant date of occurrence. In this way, the facts of the referred case are not similar to the facts of the case in hand. In the present case, the informant, Pankaj Ram, received assault on 6.10.1997 and he died on 8.10.1997. On the other hand, Sri Bhagya Narayan Gupta, the learned counsel for the State, submitted that the statement of the deceased- informant recorded by the police was only a complaint which his suggestive that he was mentally fit to make statement. After his death it was rightly treated as dying declaration under Section 32(f) of the Evidence Act. He placed his reliance on a case of Prakash and another V/s. State of Madhya Pradesh, reported in AIR 1993 SC 65 . In this case, it has been held that "victim alive for about , 1/2 hour after assault-absence of medical evidence to indicate that he was not in position to make dying declaration. Victim knowing the assailants. Reasonable to expect that he would give names of assailants to his family members at first opportunity. Dying declaration could be relied upon". 12. In this case, it has been held that "victim alive for about , 1/2 hour after assault-absence of medical evidence to indicate that he was not in position to make dying declaration. Victim knowing the assailants. Reasonable to expect that he would give names of assailants to his family members at first opportunity. Dying declaration could be relied upon". 12. The learned counsel for the ap- pellant, Brajesh Kumar Thakur @ Brajesh Thakur in Criminal Appeal No. 289 of 2000 submitted that there is no evidence on record to hold that this appellant was having any common intention and there is no material on the record from which common intention could be inferred. The evidence of prosecution witnesses is wholly inconsistent with regard to the role played by this appellant, so the trial Court wrongly convicted him under Section 302 with the aid of Section 34 of the Indian Penal Code. There is merit in this contention. In the FIR lodged by the deceased-informant, the alleged dying declaration, he clearly assigned the role played by the appellant, Rinku Paswan. The appellant, Brajesh Kumar Thakur @ Brajesh Kumar was accompanying him without any arm and no overtaet whatsoever has been attributed against him. The evidence of PW 2, Manoj Sah that he learnt from the deceased-informant the names of both the appellants as his assailants is wholly inconsistent with the version of the dying declaration. In this context, I refer the case reported in 2000 (2) SCC (Cri) 991 wherein it has been held that "under Section 34 of the Indian Penal Code physical presence and promotion or facilitation on the crime in furtherance of common intention are essential". 13. Thus, I am of the view that the prosecution has been able to prove its case beyond all reasonable doubts against the appellant, Rinku Paswan only and not against the appellant Brajesh Kumar Thakur @ Brajesh Thakur. I hold the appellant, Brajesh Kumar Thakur @ Brajesh Thakur, not guilty of charge framed against him. 14. In the result, the Criminal Appeal No. 289 of 2000 is allowed. The order of conviction and sentence passed against the appellant, Brajesh Kumar Thakur @ Brajesh Thakur is set aside. He is on bail, so he is discharged from the liability of his executed bail bonds. There is no merit in Criminal Appeal No. 357 of 2000 and it is dismissed. The order of conviction and sentence passed against the appellant, Brajesh Kumar Thakur @ Brajesh Thakur is set aside. He is on bail, so he is discharged from the liability of his executed bail bonds. There is no merit in Criminal Appeal No. 357 of 2000 and it is dismissed. The order of conviction and sentence passed against the appellant, Rinku Paswan, is confirmed. He is in custody, so he is ordered to serve out the sentence imposed upon him. A.K.Sinha, J. 15 I agree. Appeal 289/2000 allowed. Appeal 357/2000 dismissed.