JUDGMENT Hon’ble Shiv Shanker, J.—This criminal appeal has been preferred by appellants against the impugned judgment and order dated 21.9.1981 passed by Additional Sessions Judge, Azamgarh in Sessions Trial No. 262 of 1980 convicting appellants Vishwa Ram, under Section 304 (2) I.P.C. and sentencing him to 5 years R.I. and further convicting appellants Sagram and Surendra under Section 304 (2), I.P.C. read with Section 34, I.P.C. and sentencing them 3 years R.I. 2. Brief facts arising out of this appeal are that Seeta Pasi S/o Sundar Pasi registered F.I.R. on 29.4.1980 at 5.30 p.m. against three accused Vishwa Ram, Sagram and Surendra wherein it has been stated that on 29.4.1980 at about 2.00 p.m. some quarrel took place in between Syama aged about 8 years and one boy 5-6 years relating to the house of Visrambhar. Therefore, Munnar, uncle of the first informant reached there to pacify the matter in between them. Same time accused persons Vishwa Ram, Sagram and Surendra also reached there and some quarrel also took place in between Munnar (deceased) and accused persons. Thereafter, he was beaten by all the accused persons and took him at the door of Vishwa Ram. After raising alarm, first informant, his sister-in-law and neighbourers of the informant Babu Ram, Hunnar reached at the place of occurrence and saw that all the three accused persons were beating to Munnar wherein Vishwa Ram was armed with Moosar and he was beating with Moosar while other accused Sagram and Surendra were beating to Munnar with kicks and fists. Consequently, he died on the spot due to sustaining injuries at the door of accused Vishwa Ram. After leaving the dead-body of the deceased, first informant lodged the F.I.R. Thereafter, inquest report, photo chalan etc. were prepared. After sealing the dead-body of the deceased, it was sent for conducting autopsy. Following ante-mortem injuries were found on the dead-body of the deceased : (1) Abrasion 5 cm x 4 cm. Outer part of upper part of left thigh just below gluted fold. (2) Abrasion 2 cm. x 1.5 cm. Back of left elbow. (3) Contusion swelling 6 cm. x 5 cm. Left side head 2 cm. above left ear. 3. Cause of death has been opined by Doctor coma as a result of anti- mortem injuries. Post-mortem report was also prepared. 4. (2) Abrasion 2 cm. x 1.5 cm. Back of left elbow. (3) Contusion swelling 6 cm. x 5 cm. Left side head 2 cm. above left ear. 3. Cause of death has been opined by Doctor coma as a result of anti- mortem injuries. Post-mortem report was also prepared. 4. After completing the investigation, charge-sheet was filed against all the three accused persons under Section 302, I.P.C. upon which cognizance was taken and case of the three accused persons was committed to the Court of session. Thereafter trial Court framed charge under Section 302 read with Section 34, I.P.C. against all the three accused persons, who pleaded not guilty and claimed to be tried. 5. Prosecution examined witnesses for proving its case P.W. 1 Seeta, P.W. 2 Smt. Kisuni, P.W. 3 Babu Ram who are the fact witnesses. P.W. 4 A.K. Singh, I.O. P.W.5 Sri S.N. Sinha, Medical Officer, who proved the post-mortem report of the deceased. 6. D.W. 1 Umashanker and D.W.2 Sunari have been examined on behalf of the accused persons in their defence. 7. Statements of the accused were recorded under Section 313 Cr.P.C. which was not admitted. Thereafter they have stated that they have been falsely implicated in this case. 8. After hearing the arguments of learned Counsel for both the parties and perused the record, appellant Viswa Ram was found guilty for the charge under Section 304 (2), I.P.C. and other accused Sagram and Surendra were also found guilty for the offence under Section 304 (2) I.P.C. read with Section 34, I.P.C. and above sentences were awarded to them. Thereafter, they were taken into custody after cancelling their bail bonds. They were released on bail in this criminal appeal. 9. Heard learned Counsel for both the parties and perused the whole record. 10. Learned Counsel for the appellants has contended that there was no motive and intention to cause death of the deceased. There was no pre concert for committing such offence. Appellant Nos. 2 and 3 have been shown bare handed at the time of alleged occurrence. In such circumstances, there cannot be a common intention to commit the murder of the deceased along with co-accused Vishwa Ram. 11. Role of the present appellants has been shown to beat the deceased with kicks and fists but no any injury would be caused on the body of the deceased with kicks and fists. In such circumstances, there cannot be a common intention to commit the murder of the deceased along with co-accused Vishwa Ram. 11. Role of the present appellants has been shown to beat the deceased with kicks and fists but no any injury would be caused on the body of the deceased with kicks and fists. However, appellant Nos. 2 and 3 have been illegally convicted for the said charge. It is further contended that appellant accused Vishwa Ram had expired, who allegedly caused fatal injury on the head of the deceased and his case has already been abated as per order dated 28.10.2006. Therefore, this appeal deserves to be allowed. 12. On the other hand, it is submitted that there was common intention of the appellant Nos. 2 and 3 with the appellant No. 1 in furtherance and common intention. Such offence has been committed by three appellants. Therefore, appellant Nos. 2 and 3 are also responsible for the act of appellant No. 1 in furtherance of common intention of all There is no force in the arguments made on behalf of the respondents. 13. It has come in the testimony of P.W. 1, 2 and 3 above that some quarrel had taken place in between children from the side of both the parties. Therefore, Munnar reached there to pacify the matter but same time all the three appellants also reached there wherein Viswa Ram was holding Moosar. It is blunt object and other appellants were bare handed and without any weapon. Munnar was beaten by them with Moosar, kick and fists. According to the post-mortem report three ante-mortem injuries were found on the dead-body of the deceased. P.W. 5 S.N. Singh has specifically stated that deceased had died due to sustaining ante-mortem injuries. Injury No. 3 is on head. Therefore, ante-mortem injury No. 3 was found fatal, which was caused by co-accused against whom the case has been abated in the appeal. Ante-mortem injury Nos. 2 and 3 were found as abrasions on outer part of left thigh just below glutted fold and back of left elbow. These two ante-mortem injuries could not be caused with kicks and fists. Therefore, it is also worthwhile to mention here that only question was asked to P.W. 5 regarding injury No. 5 whether such injury could be caused by Moosar? These two ante-mortem injuries could not be caused with kicks and fists. Therefore, it is also worthwhile to mention here that only question was asked to P.W. 5 regarding injury No. 5 whether such injury could be caused by Moosar? wherein he has replied ‘Yes’ but no any question was asked on behalf of the prosecution in his examination-in-chief that ante-mortem injury No. 1 and 2, who were abrasion would be caused by kicks and fists. P.W. 5 Doctor has not stated that injury Nos. 1 and 2 were caused by kick and fists. 14. Therefore, role of the appellant Nos. 2 and 3 has been shown to cause injury by kicks and fists upon the dead-body of the deceased has become falsified. It is also worthwhile to mention here that no one can commit any offence in furtherance of common intention bare handed and without having any weapon. This is not the prosecution case according to the evidence of fact witnesses that appellant Nos. 2 and 3 had raised alarm to kill the deceased upon which he was killed by appellant No. 1, in such circumstances, appellants No. 2 and 3 had not participated in committing the crime in furtherance of common intention with the appellant No. 1. Therefore, the case is not proved against appellant Nos. 2 and 3 for the offence under Section 304(2), I.P.C. and read with Section 34, I.P.C. However, Court below has convicted both appellants wrongly, illegally and against the provision of law. In such circumstances, they are liable to be acquitted. 15. After considering the facts and circumstances of the case, I am of the view that this appeal is liable to be allowed and conviction made by trial Court against appellant Nos. 2 and 3 is deserves to be set aside. 16. In the end this criminal appeal is allowed and conviction of appellant No. 2 and 3 is set aside. They are hereby acquitted for the offence under Section 304(2) read with Section 34, I.P.C. 17. They are on bail. Their bail bonds are cancelled and their sureties are discharged. There is no need to surrender in the case in future. ————