JUDGMENT By the Court.—Criminal Appeal No. 556 of 1983 was sent by the accused appellants Shyam Pyare, Fatte and Ram Dhani from Central Jail, Varanasi through the Superintendent of Jail. In the meantime learned counsel for the appellants Shyam Pyare, Fatte and Ram Dhani had also filed criminal appeal which was admitted and after registration it was numbered as Criminal Appeal No. 464 of 1983. Since both these appeals have been filed against the same judgment and order dated 25.11.1982 passed by Sri R.C. Gupta, then Addl. Sessions Judge, Mirzapur in Session Trial No. 138 of 1982 (State v. Shyam Pyare and others), we have heard them together and now we are deciding them jointly. It may also be mentioned that the appellants Shyam Pyare and Fatte have died during pendency of the appeal, so the appeals on their behalf have stood abated. The accused appellant Ram Dhani was released on bail, but thereafter he disappeared, and so non-bailable warrant was issued against him and he was arrested. At present he is in prison. Dr. Abida Sayeed, amicus curiae, was appointed to argue the appeal on behalf of Ram Dhani. 2. The brief facts of the case are that on 2.12.1981 at 2.15 a.m. Kamla who is resident of village Patti Kalan, Kasba Ahraura, District Mirzapur lodged a First Information Report at P.S. Aharwara, District Mirzapur with the allegation that he was residing with his father and other family members of Billo Kund, Hamlet of village Latifpur, and several labourers were employed by his father for stone digging. They were given money in advance to do this job. On 2.12.1981 at about 9.00 p.m. Kamla alongwith his family members was taking dinner in his hut. His relative Ram Avadh had also come there. The accused Shyam Pyare accompanied by his 3-4 companions came near his father Chhabban and asked him to give money for doing the work. The deceased Chhabban replied that he (Shyam Pyare) had already taken sufficient money in advance and had not done the work and asked him to complete the work as a large sum of money was due on him and then only he would pay any amount. Then there took place some quarrel and Shyam Pyare fired on Chhabban from his country made pistol and the other persons accompanying him exhorted him to kill all the family members. Then there took place some quarrel and Shyam Pyare fired on Chhabban from his country made pistol and the other persons accompanying him exhorted him to kill all the family members. Then the complainant, his mother, sister and Ram Awadh ran away from the house and shouted for help. On hearing the alarm the neighbours Ram Murti and Kalloo etc. reached there and they saw Shyam Pyare and other persons running away from the spot. The complainant and his family members also reached there and saw that Chhabban had died as a result of the fire-arm injury. They took the dead-body to the police station and lodged the report and Case Crime No. 188 of 1981 was registered under Sections 147, 148, 149 and 302, I.P.C., P.S. Ahraura, District Mirzapur against Shyam Pyare and 3-4 other unknown persons. After completion of investigation, the police submitted charge-sheet against Shyam Pyare, Fatte and Ram Dhani. 3. The case was committed to the Court of Sessions and the 2nd Additional Sessions Judge, Mirzapur framed charges under Sections 148 and 302, I.P.C. against Shyam Pyare, and under Sections 147 and 302 read with 149, I.P.C. against Fatte and Ram Dhani. After taking evidence he was of the view that the abovenoted charges were sufficiently proved against the accused persons, and therefore, he convicted Shyam Pyare under Sections 148 and 302, I.P.C. and Fatte and Ram Dhani under Sections 147 and 302/149, I.P.C. and sentenced the accused Shyam Pyare under Section 148, I.P.C. to 2 years R.I. and under Section 302, I.P.C. to life imprisonment. Fatte and Ram Dhani were sentenced under Section 147, I.P.C. to one year’s R.I. and under Section 302/149, I.P.C. to life imprisonment. Against this judgment and order, the accused appellants filed the above appeals. 4. As already pointed out the accused appellants Shyam Pyare and Fatte have died and the appeal on their behalf has stood abated. Now we are concerned with the appellant Ram Dhani only in these appeals. 5. Heard Dr. Abida Sayeed for accused appellant Ram Dhani and learned A.G.A. for the State and also perused the trial Court record. 6. It is apparent that accused appellant Shyam Pyare only was named in the First Information Report who was allegedly accompanied by 3-4 persons. Now we are concerned with the appellant Ram Dhani only in these appeals. 5. Heard Dr. Abida Sayeed for accused appellant Ram Dhani and learned A.G.A. for the State and also perused the trial Court record. 6. It is apparent that accused appellant Shyam Pyare only was named in the First Information Report who was allegedly accompanied by 3-4 persons. Fatte and Ram Dhani were subsequently implicated as companions of accused appellant Shyam Pyare and on appreciation of evidence on record, they have been convicted by the learned Addl. Sessions Judge. 7. Learned amicus curiae challenged the conviction order passed against the appellant Ram Dhani and submitted that there is no reliable evidence against him, therefore, he should be acquitted. It is to be seen that as per the F.I.R. allegations, 3-4 persons accompanying Shyam Pyare had gone to the house of Chhabban and as per the prosecution allegation the appellant Ram Dhani was also one of them, though he is not named in the First Information Report. However, the allegation against these companions in the F.I.R. is that they had accompanied Shyam Pyare to the house of Chhabban but there is no allegation to this effect that they in any way hit or did any overt act and participated in the incident. The allegation in the F.I.R. is that after the quarrel between Shyam Pyare and Chhabban, Shyam Pyare fired upon Chhabban from the pistol in his hand with intent to kill him and thereafter the remaining persons, who were accompanying him, exhorted that the entire family members of Chhabban should be killed but there is no allegation to this effect that any fire was done by Shyam Pyare on their exhortation. There is no allegation to this effect that these companions of Shyam Pyare had any weapon with them. 8. Kamla who has been examined as P.W. 1 has repeated the same allegations which were stated in the F.I.R. and there is no allegation of any overt act against the persons accompanying Shyam Pyare. 9. P.W. 2 Kallu and P.W. 3 Ram Murat have stated that when they reached the house of Chhabban, they saw Shyam Pyare and 3-4 more persons running away from the house of Chhabban. They have stated that Shyam Pyare had a pistol in his hand but there is no allegation to the effect that his companions also had weapons with them. 10. They have stated that Shyam Pyare had a pistol in his hand but there is no allegation to the effect that his companions also had weapons with them. 10. Under these circumstances, even if the entire prosecution evidence regarding presence of Ram Dhani and other companions is believed, it is to be seen that there is no allegation to the effect that they did any overt act. They had allegedly accompanied Shyam Pyare but they had no weapon in their hands. They had not exhorted Shyam Pyare for committing murder of Chhabban. The only allegation against them is that after Shyam Pyare had fired upon Chhabban, they asked him to commit murder of all family members of Chhabban, but that was not done by Shyam Pyare, and when Kamla shouted for help and the witnesses reached the spot, they were seen running away from the spot without committing any offensive act. They had no weapon with them and they had not done any overt act in commission of the offence. Hence it could not be concluded that there was any common object of the entire gathering to commit the offence, and under these circumstances Shyam Pyare alone could be held guilty for the offence done by him. It may also be pointed out that it was also not sufficiently proved that there was presence of 5 persons on the spot which is an essential requirement for the offences under Sections 147 and 148, I.P.C. as well as for convicting the persons under Section 149, I.P.C. Kamla, P.W. 1 has not stated with definiteness that 4 persons were accompanying Shyam Pyare but has stated that 3-4 persons had accompanied Shyam Pyare and the same version has been stated by P.W. 3 who stated that he had seen Shyam Pyare running away accompanied by 3-4 persons but there is specific statement of P.W. 2 who has stated that only 3 persons were running away alongwith Shyam Pyare. P.W. 1, Kamla and P.W. 3 Ram Murat are not certain on the point of presence of 5 persons on the spot and when according to statement of P.W. 2 Kallu only 4 persons were present there, no offence under Sections 147 and 148, I.P.C. is made out and Section 149, I.P.C. is also not applicable in the absence of presence of at least 5 persons. There is also no evidence to this effect that all the accused persons had any common intention to kill Chhabban, and so it is not possible to convict the companions of Shyam Pyare under Section 302/34, I.P.C. 11. The position in this way is that no offence was made out against the accused appellant Ram Dhani and the learned Addl. District Judge fell in error while convicting the appellant Ram Dhani under Sections 147 and 302/149, I.P.C. His judgment on the point cannot be upheld and it is liable to be set aside. 12. In view of the above, both the appeals so far as they pertain to accused Ram Dhani are allowed and his conviction under Sections 147 and 302/149, I.P.C. is set aside and the sentences awarded against him are also set aside. He is acquitted of the charges under Sections 147 and 302/149, I.P.C. He is in jail and he be released forthwith if he is not wanted in any other case. 13. Dr. Abida Sayeed, amicus curiae, assisted the Court very well in disposal of these appeals. She shall be paid Rs. 10,000/- (Rupees ten thousand) as fees by the State exchequer. 14. Office is directed to send a copy of this order to the concerned Chief Judicial Magistrate forthwith for compliance. ————