JUDGMENT Honble Saroj Bala, J.—This criminal appeal is directed against the judgment and order dated 11.11.82 passed by the Additional Sessions Judge-III, Moradabad in S.T. No. 181 of 1981 whereby convicting the appellants, namely Ram Babu, Ram Autar and Jas Ram for the offence punishable under Section 302 read with 34, I.P.C. and sentencing each of them to rigorous imprisonment for life. Appellants Ram Babu and Jas Ram having died during the pendency of appeal, the appeal against them stood abated vide orders dated 1.11.2007 and 6.8.2008. The appellant No. 2 Ram Autar remains the sole surviving appellant. 2. The prosecution case shorn of unnecessarily details is as follows : On 17.1.80, the first informant Rama Kant Sharma (P.W.4) and his brother-in-law Vishesh Chandra Sharma (P.W. 5) had been irrigating their fields from tube-well (Rehat). At about 12-1 O’clock noon Vimla Devi (deceased), first informant’s mother came at the field to serve meals. She had been washing her hands and face at the tube-well. At the same time appellant alongwith co-accused Rama Shankar, Ram Babu and Jas Ram armed with gun, country-made pistol and lathi came there. Co-accused Ram Babu and Rama Shankar who were armed with gun and country-made pistol opened fire at first informant’s mother. She succumbed to the injuries at the spot. Appellant Ram Autar and co-accused Jas Ram chased the first informant and other witnesses but could not catch them. The motive behind the commission of offence was illicit relationship of Ram Kumar, brother of appellant with Shanti wife of late Jagdish first informant’s cousin brother and murder of Ram Kumar about two months before the incident. Rama Kant Sharma (P.W. 4) scribed the written report of the incident (Ext. Ka-4) and lodged it at Police station Samblal at 3.50 P.M. On the basis of written report chick F.I.R. (Ext. Ka-1) was prepared by H.M. Vishun Dutta Sharma (P.W. 1) and crime was registered at serial number 37 of G.D. (Ext. Ka-2). 3. S.S.I. Mahendra Saxena (P.W. 8) was entrusted with the responsibility to investigate the crime. He visited the spot and conducted inquest on the dead body. He prepared the inquest report (Ext. Ka-9), challan lash (Ext. Ka-10) letter to C.M.O. (Ext. Ka. 11) and handed over the sealed bundle containing the dead body alongwith police papers to constables Surendra Pal (P.W. 2) and Ranjit Singh for transportation to mortuary for post-mortem. 4. He visited the spot and conducted inquest on the dead body. He prepared the inquest report (Ext. Ka-9), challan lash (Ext. Ka-10) letter to C.M.O. (Ext. Ka. 11) and handed over the sealed bundle containing the dead body alongwith police papers to constables Surendra Pal (P.W. 2) and Ranjit Singh for transportation to mortuary for post-mortem. 4. The autopsy on the dead body was conducted by Dr. M.C. Tripathi (P.W. 3) on 18.1.80 at 4.30 P.M. and following ante-mortem injuries were found on the person of deceased : (1) Two rounded abrasions over left inferior axillary region near posterior fold of axilla 1.5 cm. x 1 cm. to 2.5 cm x 1.2 cm, 1 cm. apart from each other. Blackening present on the posterior inferior margins of these injuries. (2) Two gun shot wounds of entry just above the middle of outer posterior aspect of left arm 1.5 cm. apart from each other measuring 1.5 cm. x 1.5 cm to 1.5 cm x 1 cm on probing each of these inner surface of arm deep communicating to the wounds of exit 2 cm x 1.5 cm. to 2.2 cm x 1.5 cm exactly and directly under the above wounds of entries. Blackening and slight scorching was present around the wounds of entries on the outer aspect. (3) Abrasion 3 cm x 1 cm on upper part of back of left side of chest. Slight blackening present around it. (4) Incised wounds 3 cm x 1.5 cm. to 3 cm x 2 cm. x muscle deep each; 1 cm apart from each other over root of left side of neck 7 cm behind and below left ear. (5) Abrasion 1.2 cm x 1 cm on left infra clavicular region of chest. Blachening present on latero inferior margin of wound. (6) Wound of gun shot entry 1.2 cm x 1 cm, tatooing present all around x communicating to wound of exit over upper wall of chest near shoulder joint. Wound of entry at left upper part of upper arm 6 cm. above injury No. 2. Wound of exit size being 2.2 cm x 1.5 cm. Direction left to right and medially. (7) Abrasion 1 cm x 1 cm over top of left shoulder near injury no. 6 entry. Slight blackening present around it. (8) Gun shot wound of entry 2.5 cm x 2.2 cm near left inferior angle of scapula on back. Wound of exit size being 2.2 cm x 1.5 cm. Direction left to right and medially. (7) Abrasion 1 cm x 1 cm over top of left shoulder near injury no. 6 entry. Slight blackening present around it. (8) Gun shot wound of entry 2.5 cm x 2.2 cm near left inferior angle of scapula on back. Blackening and slight scorching present all around the wound. On probing and dissection the underlying tissues of back of chest wall left pleura and left lung were lacerated. Direction from back to front and medially. Two big metallic distorted shots were removed from upper lobe of left lung. The left pleural cavity contained about one pint of blood. Injury No. 4 was caused by sharp edged weapon. All other injuries were due to discharge of fire arm weapon. The death was caused due to shock and haemorrhage as a result of ante-mortem injuries. The post-mortem certificate was Ext. Ka.-3. 5. Investigating officer collected the samples of blood stained earth and plain earth (Exts. 6 and 7) from the scene of offence under the memo (Ext. Ka-13). He prepared the site plan of the place of offence (Ext. Ka. 14). He interrogated the relevant witnesses. On 20.1.80 Inspector I/c Jag Vir Singh (P.W. 7) took the investigation. After completing the necessary formalities he submitted the charge-sheet (Ext. Ka. 5) against four accused persons. Co-accused Rama Shankar, brother of sole surviving appellant was murdered before the committal of this case. 6. The C.J.M., Moradabad committed the accused to the Court of Sessions for standing trial for the offence under Section 302, I.P.C. The accused were charged for the offence under Section 302/34, I.P.C. by the Additional Sessions Judge-Ill. They pleaded not guilty and claimed to be tried. 7. The prosecution in order to support the charge examined as many as eight witnesses. Rama Kant (P.W4), Vishesh Chandra Sharma (P.W.5) and Rajendra Sharma (P.W. 6) were witnesses of fact. H.C. Vishnoo Dutt Mishra (P.W.1), C.P. Surendra Pal (P.W. 2), Dr. M.C.Tripathi (P.W. 3), Inspector Jag Vir Singh (P.W. 7) and S.S.I. Mahendra Saxena (P.W. 8) were formal witnesses. 8. The accused in their statements under Section 313, Cr.P.C. stated that they were falsely implicated due to enmity. 9. The trial Court on appraisal of evidence recorded the finding of conviction against the accused persons. 10. M.C.Tripathi (P.W. 3), Inspector Jag Vir Singh (P.W. 7) and S.S.I. Mahendra Saxena (P.W. 8) were formal witnesses. 8. The accused in their statements under Section 313, Cr.P.C. stated that they were falsely implicated due to enmity. 9. The trial Court on appraisal of evidence recorded the finding of conviction against the accused persons. 10. We have heard Sri Akhilesh Singh, learned counsel for the appellant No. 2 Ram Autar, the learned A.G.A. and have gone through the trial Court record. 11. The learned counsel for the appellant has challenged the finding of conviction on the grounds: the eye-witness account does not receive corroboration from the medical evidence; Rajendra Sharma (P.W. 6) being an accused in the case of murder of co-accused Rama Shankar, he is an interested witness; the appellant did not share common intention with co­accused nor he actively participated in the commission of offence, the prosecution case was not proved against him; the incident took place in broad day light but no independent witnesses were examined. The learned counsel in support of his arguments placed reliance on the decisions in Harjit Singh and others v. State of Punjab, 2003 (47) ACC 388 (SC) and Mohan Singh and another v. State of Madhya Pradesh,1999 Cri LJ 1334 (SC). 12. The eye-witness account narrated by Rama Kant (P.W. 4), Vishesh Chandra (P.W.5) and Rajendra Sharma (P.W.6) at the trial is required to be stated in necessary details for the purpose of appreciation and evaluation of the prosecution case. 13. Rama Kant (P.W 4) is the first informant and the son of deceased. He deposed that at the time of incident he was cleaning the irrigation drain. His brother-in-law was operating the tube-well (Rehat) and his mother was washing her face and hands at the tube-well. On that day they were irrigating their wheat field. At about 12-1 O’clock noon Rama Shankar, Ram Autar, Ram Babu and Jas Ram came there. Ram Babu was armed with gun, Rama Shankar had country-made pistol and remaining two were carrying lathis. On seeing them they moved towards western side. No sooner his mother got up and stood straight the accused Ram Babu and Rama Shankar opened fire from gun and country-made pistol which hit her. On sustaining injuries his mother ran towards the field of Rameshwar and fell-down at a short distance. On seeing them they moved towards western side. No sooner his mother got up and stood straight the accused Ram Babu and Rama Shankar opened fire from gun and country-made pistol which hit her. On sustaining injuries his mother ran towards the field of Rameshwar and fell-down at a short distance. The accused opened another shot of fire at her from close range. The accused Ram Autar and Jas Ram chased them while they ran away towards western direction for safety. He admitted that Pooran was his real uncle and Veerpal brother of Pooran was accused in the case of murder of Ram Kumar. His third uncle Har Charan alias Sahukar was murdered. Ram Kumar was son of real sister of mother of Pooran. Ram Kumar resided in Peepal wali Madaiya and owned 100 bighas agricultural land and a tube-well. His sister-in-law had called Ram Kumar to look after her agricultural land. He admitted that after this incident accused Rama Shankar was killed and witnesses of present case namely, Rajendra (P.W. 6) and Maqsood were accused in the said case. 14. Vishesh Chandra Sharma (P.W. 5) testified that about two years four months before at about 12-1 O’Clock noon he was operating the tube-well in the field of his brother-in-law (Jeeja). The mother of his brother-in-law came at the field to serve meals to them. She was washing her face and hands at the drain of the tube-well. At the same time Ram Babu, Ram Autar and Rama Shankar came from the eastern side. Co-accused Jas Ram was seen coming at a distance from them. Ram Babu and Rama Shankar opened fire with gun and country-made pistol at Vimla Devi. When they ran away for safety towards eastern direction accused Jas Ram and Ram Autar chased them. He went on to state that while running away they were seeing behind by turning their back and saw the accused opening another shot at Vimla Devi. The remaining accused pursued them but they could not catch them. In his cross-examination he deposed that Ram Autar and Jas Ram chased them with lathis but they continued running through the fields. Both the accused chased them to a distance of 15-20 paces. They were running 2-1/2 to 3 yards ahead of the accused. 15. The remaining accused pursued them but they could not catch them. In his cross-examination he deposed that Ram Autar and Jas Ram chased them with lathis but they continued running through the fields. Both the accused chased them to a distance of 15-20 paces. They were running 2-1/2 to 3 yards ahead of the accused. 15. Rajendra Sharma (P.W. 6) stated that he alongwith Maqsood was cutting sugar-cane in the field of Bihari situated towards the northern side of the field of Rama Kant. Accused Ram Autar and Jas Ram chased the witnesses Rama Kant and Vishesh Chandra Sharma but they could not catch them. He admitted that he owned 100 bighas agricultural land and a flour mill. He admitted that he was an accused in the case of murder of Rama Shankar. 16. The evidence of eye-witnesses brings out that three shots were fired at the deceased by co-accused Ram Babu and Rama Shankar. Co-accused Rama Shankar was murdered during the pendency of committal proceedings and Rajendra Sharma (P.W. 6) and Maqsood are accused in the said case. Co-accused Ram Babu appellant No. 1 and Jas Ram appellant No. 3 died during the pendency of appeal. Ram Kumar brother of co-accused Rama Shankar and appellant was killed two or three months before the incident and Veerpal uncle of Rama Kant (P.W. 4) was accused in the said case. The witness Vishesh Chandra Sharma (P.W. 5) is a resident of village Sirohi situated within the territorial limits of police station Behjoi whereas witness Rajendra Sharma (P.W. 6) resided at Sherpur, police station Hayat Nagar. The incident took place in the village Akhtiyarpur within the territorial limits of police station Hayat Nagar. The father of Vishesh Chandra Sharma owned 125 bigha land and he (P.W. 5) is real brother-in­law of Rama Kant (P.W 4). According to the medical evidence there was more possibility of the injuries having been caused by more than three shots of fire. The appellant Ram Autar was armed with lathi. According to the eye-witnesses he alongwith co-accused Jas Ram (since deceased) chased Rama Kant (P.W 4) and Vishesh Chandra Sharma (P.W. 5) but could not catch them. They had pursued them to a distance of 15-20 paces. There is no independent witness of the incident. The witnesses examined are interested persons. The appellant and co-accused chased the witnesses after the firing of two shots at the deceased. They had pursued them to a distance of 15-20 paces. There is no independent witness of the incident. The witnesses examined are interested persons. The appellant and co-accused chased the witnesses after the firing of two shots at the deceased. 17. In the background of the abovementioned facts we switch over to the question of joint liability of conviction of accused appellant No. 2 Ram Autar under Section 302/34, I.P.C. 18. The prosecution witnesses have not attributed any overt act to the accused appellant. The appellant was armed with lathi. He alongwith co­accused chased the witnesses P.W. 4 and P.W.5 to a distance of 15-20 paces but no injury was caused to them. The question for consideration is whether the inference of sharing common intention to cause death with co-accused Rama Shankar and Ram Babu could be drawn. In order to establish the charge under Section 302 with the aid of Section 34, I.P.C. it is to be established that the criminal act was done by one of the accused in furtherance of common intention of all. Section 34, I.P.C. enjoins the principle of joint liability in doing the criminal act based on common intention. The common intention can be inferred from the manner in which the accused reached at the scene of crime and mounted assault, injuries caused by one or some of them and subsequent conduct after the death. The co-accused who opened fire at the deceased were related to each other as maternal uncle and nephew. The appellant and co-accused armed with lathis did not scare the witnesses while the main shooters were opening fire. The witnesses being inimically deposed against the appellant, the possibility of his false implication with main assailants cannot be ruled out. There is nothing on the record for drawing an inference that the intention of co-accused of causing death was known to the appellant. 19. The Apex Court in Suresh and another v. State of U.P., 2001 (42) ACC 770 (SC), has held that “the accused who is to be fastened with liability on the strength of Section 34, I.P.C. should have done some act which has nexus with the offence. Such act need not be very substantial, it is enough that the act is only for guarding the scene for facilitating the crime. Such act need not be very substantial, it is enough that the act is only for guarding the scene for facilitating the crime. The act need not necessarily be overt, even it it is only a covert act it is enough, provided such a covert act is proved to have been done by the co-accused in furtherance of the common intention. Even an omission can, in certain circumstances, amount to an act.” It was further held that “an act, whether overt or covert, is indispensable to be done by a co-accused to be fastened with the liability under the section. But if no such act is done by a person. even if he has common intention with the others for the accomplishment of the crime, Section 34 IPC cannot be invoked for convicting that person. In other words, the accused who only keeps the common intention in his mind, but does not do any act at the scene, cannot be convicted the aid of Section 34 IPC.” 20. In Mithu Singh v. State of Punjab, 2001 (4) SCC 193 , the Apex Court has held that the common intention has to be distinguished from same or similar intention on the basis of facts of each case. In that case the Court opined that merely because the appellant armed with pistol alongwith co-accused came to the place of deceased did not indicate the common intention of the appellant for causing death of deceased. 21. In Ramashish Yadav and others v. State of Bihar, 1999 (8) SCC 555 , and Ajai Sharma v. State of Rajasthan, 1999 (1) SCC 174 , the Apex Court held that accused caught hold of the deceased whereas the co­accused mounted assault did not indicate that the accused who caught hold the deceased shared common intention of main accused. 22. In the instant case there is no evidence that the appellant Ram Autar shared common intention with co-accused, the main assailants. There is every possibility of the witnesses falsely implicating the appellant alongwith main assailants with the commission of offence. The testimony of eye-witnesses that the appellant alongwith co-accused pursued them cannot be accepted. It is remarkable to observe that in the first part of examination-in-chief the eye-witnesses stated that the appellants came armed with lathi but there is omission in the latter part that the appellant was carrying a lathi while chasing them. The testimony of eye-witnesses that the appellant alongwith co-accused pursued them cannot be accepted. It is remarkable to observe that in the first part of examination-in-chief the eye-witnesses stated that the appellants came armed with lathi but there is omission in the latter part that the appellant was carrying a lathi while chasing them. There is no evidence to draw an inference that the co-accused went to the tube-well with the intention to cause death and such intention was known to the appellant. Looking to the involvement of uncle of first informant and of witness Rajendra (P. W. 6) in the murder of two brothers of appellant in two separate incidents the possibility of his false implication cannot be ruled out. Thus, we conclude that the prosecution has failed to prove beyond all reasonable doubt that the appellant Ram Autar shared common intention with co-accused to kill the deceased. 23. In view of the aforesaid findings the appeal of appellant No. 2 Ram Autar is allowed and his conviction and sentence under Section 302 read with 34 I.P.C. are set aside. The appellant is accordingly acquitted. The appellant is on bail to which he need not surrender. His bail bonds are cancelled and sureties are discharged. Certify the judgment to the lower Court within a week. The record of the case be also transmitted to the Court below immediately. —————