JUDGMENT Hon’ble N.A. Moonis, J.—The instant appeal has been filed on behalf of the appellant against the judgment and order dated 28,.9.2006 passed by the Additional Sessions Judge Court No. 8 Kanpur Dehat vide Sessions Trial No. 52 of 2006 under Sections 304 read with Section 34 IPC Police Station Bilhor District Kanpur Nagar (State v. Mohammad Yousuf) whereby the appellant has been convicted and sentenced to undergo ten years rigorous imprisonment with a find of Rs. 5,000/-. In case of default, the appellant had to undergo one year further imprisonment. 2. The genesis of the prosecution story in a nut shell is that a First Information Report was lodged on 9.9.2005 at 9.50 p.m. under Section 307 IPC in respect to the incident happened on 1.9.2005 at 10.30 a.m. by Sri Rishiraj Bhatnagar, Principal Dr. Govind Prasad Rani Devi Patel Degree College G.T.Road Police Station Bilhor District Kanpur Nagar with the allegation that the appellant and his associates had assaulted to Ashutosh Rana a student of B.A.Part-I. On hearing the shriek and alarm of his friend Ashutosh Rana, Amar Deo ran to save him. The appellant and his associates thrashed Amar Dev with lathi and danda as a result of which Amar Dev sustained fatal injuries. The aforesaid First Information Report was lodged on the basis of the application given by the complainant to the Police Station Bilhor District Kanpur Nagar on 7.9.2005 stating therein that on 1.9.2005 at about 9.00 a.m. when all the classes were running smoothly, some altercation took place between the appellant and Amar Dev, a student of B.A. Part-II. The college Administration intervened and pacified the dispute. The classes were again allowed to resume smoothly. At about 10.30 a.m. the appellant called strangers who started beating to Ashutosh Rama, the student of B.A. Part-I who was close associate of Amar Dev. On the alarm and cry of Ashutosh Rana, Amar Dev ran to save his friend. The appellant and his associates began to thrash Amar Dev with lathi and danda as a result of which Amar Dev received serious injuries. The college administration informed the said incident to the police station concern and on the interruption of police personnel, the students were dispersed and the injured Ram Dev was taken to the hospital for first aid. The appellant and his associates began to thrash Amar Dev with lathi and danda as a result of which Amar Dev received serious injuries. The college administration informed the said incident to the police station concern and on the interruption of police personnel, the students were dispersed and the injured Ram Dev was taken to the hospital for first aid. Subsequent thereto, the College Administration taking stock of the situation, decided to lodge the First Information Report agianst the appellant and his associates. The application was moved for taking action on 9.9.2005 at 9.50 p.m. On the said application,the First Information Report was lodged at police station Bilhor District Kanpur Nagar vide Case Crime No. 84 of 2005 under Section 307 IPC. The victim died on 9.9.2005. The inquest of the deceased was prepared on 10.9.2005 at 10.00 a.m. Thereafter the corpus was sent to the mortuary for autopsy. The post-mortem of the deceased was conducted on 10.9.2005 at about 1.15 p.m. at U.H.M. 3. Subsequent thereto, the investigating officer proceeded to record the statement of the witnesses. The witnesses had supported the prosecution case. On the basis of the statement of the witnesses, site plan, post-mortem report and other credible evidence in clinching nature, the investigating officer submitted charge-sheet against the appellant alone under Section 302 IPC. The charges were framed under Section 302 IPC to which the appellant adjured his guilt and pleaded to be tried. 4. In support of the prosecution case, Dr.R.R.Bhatnagar who was posted at Principal in the said College was examined as P.W. 1. Ashutosh Rana who was the student of B.Sc. Part-I was examined as P.W. 2. Digvijay who was posted as clerk in the said College was examined as P.W. 3 The prosecution had also examined Constable Arvind Singh as P.W. 4 who had proved the check FIR exhibited as Ka. 2 which was entered in G.D as Report No. 52 and also proved the photo stat copy of the same as Ex. Ka. 3. Dr. R.J. Khanna who had conducted the post-mortem of the deceased on 10.9.2005 at 1.15 p.m. was examined as P.W. 5 who has found the following injuries on the person of the deceased : (1) one stitched wound on right side scalp, 7 stitches & 10 cm in length 9 cm above right ear. Ka. 3. Dr. R.J. Khanna who had conducted the post-mortem of the deceased on 10.9.2005 at 1.15 p.m. was examined as P.W. 5 who has found the following injuries on the person of the deceased : (1) one stitched wound on right side scalp, 7 stitches & 10 cm in length 9 cm above right ear. (2) Multiple punctured wound (10) on front of right side chest in an area of 6 cm x 4 cm each measuring 0.1 cm x 0.1 cm. (3) Multiple punctured wound on front of the right side chest. (4) Multiple punctured wound on front of the left side chest in an area of 1.5 cm x 1.5 cm below of collar bone. Six in each of size 0.1 cm x 0.1 cm. (5) Abraded contusion 26 cm x 7 cm on front of the right chest. 6 cm below. (6) Abraded contusion 2 x 1.5 cm on dorsum of right wrist. Abraded contusion on right foot 8 cm x 3 cm. (7) Abraded contusion 2 x 1.5 cm in dorsum of left wrist. (8) Abraded contusion 6 cm x 5 cm on left side scalp above left ear. 5. The doctor had found that the bone of scalp had fractured and the death had occurred due to coma as a result of ante-mortem head injury. S.I. Ravindra Kishore Pandey who was examined as PW. 6 had conducted inquest of the deceased on 10.9.2005 at about 10.00 a.m. P.W. 6 Ravindra Kishore Pandey had received information through R.T. set about the death of Amar Dev. After conducting inquest, he had prepared the papers for sending the corpus to the mortuary which was proved by him as Ex.Ka.5. Mohammad Sahid who was posted as Constable Moharrir at police Station Bilhor and had received the information about the death of the deceased Amar Dev was examined as P.W.7. During the course of examination, it came into light that on the instructions of the Station Officer concern the case which was registered under Section 307 IPC was converted into Section 302 IPC vide Case Crime No. 284 of 2005. This entry was done at 7.35 a.m. on 10.10.2005 vide Report No. 17. Its carbon copy was proved by him as Ex.Ka.11. Dr. Vikas Shukla was examined as P.W.8 who has given medical treatment to Amardev Singh. According to Dr. This entry was done at 7.35 a.m. on 10.10.2005 vide Report No. 17. Its carbon copy was proved by him as Ex.Ka.11. Dr. Vikas Shukla was examined as P.W.8 who has given medical treatment to Amardev Singh. According to Dr. Vikas Shukla,the injured was brought at the hospital in unconscious condition at 7.30 p.m. on 1.9.2005 and had seen the mark of injury over his head. On account of his serious condition, the injured was referred to ICU. S.I. Radhey Shyam was examined as P.W.9. S.I.Radhey Shyam had taken over the investigation from S.I. Desh Raj Singh and the case was converted under Section 307 IPC. Earlier investigation was being conducted by S.I. Desh Raj Singh. On the transfer of S.I. Desh Raj Singh, S.I. Radhey Shyam was posted and had taken over the investigation. S.I.Desh Raj Singh was examined as P.W.10. The investigation of the aforesaid case was handed over to him. He had investigated after the registration of the First Information Report. The case was converted under Section 302 IPC after the death of the injured. On the transfer of S.I.Desh Raj Singh, erstwhile investigating officer, S.I. Radhey Shyam was handed over the investigation. S.I. Ajit Singh Yadav was examined as P.W.11 who had taken over the investigation from S.I. Radhey Shyam (P.W.9) and submitted charge-sheet which was proved by him as Ex.Ka.13. 6. The appellant was examined under Section 313 Cr.P.C and had absolutely denied the prosecution case and has stated that he is absolutely innocent and has been falsely implicated on account of suspicion. On the fateful day of occurrence, a vehicle was stopped near the school. A number of persons had come in the school after getting off from the said vehicle. They had ensued quarrel. The appellant was neither involved in any quarrel nor in any scuffle. The appellant was roped merely on suspicion on account of quarrel taken place inside the school. 7. Dr. R.R. Bhatnagar who was examined as P.W.1 stated that on 1.9.2005 at about 10.30 when the classes were going on, some altercation took place between Mohd. Yusuf, the present appellant, the student of B.A. Part II, and Ashutosh Rana, student of B.A.Part-I, Sharad Kushwaha student of B.A.Part.I and Ankur Kumar. On receiving the information, Dr. R.R. Bhagnagar alongwith 12 other persons reached on the spot and mollified the dispute. Yusuf, the present appellant, the student of B.A. Part II, and Ashutosh Rana, student of B.A.Part-I, Sharad Kushwaha student of B.A.Part.I and Ankur Kumar. On receiving the information, Dr. R.R. Bhagnagar alongwith 12 other persons reached on the spot and mollified the dispute. Thereafter the said students went out side the college where they again began to quarrel. Amar Deo, who was the friend of Ashutosh Rana had gone out so as to save his friend and in the meantime the appellant called some outsiders and attacked upon Amar Dev as a result of which Amar Dev sustained fatal injuries. The assailants were armed with lathi, danda, rod and other weapons. He had not seen anything in the hand of the appellant Yusuf. There was active participation of the all the assailants in assaulting to Amar Dev. The said incident was seen by him and the information was given to Arail Chauki Incharge on 7.9.2005 which was proved by him as Ex.Ka.1. His statement was recorded by the police after the death of Amar Dev who died in Kanpur Nursing Home on 10.9.2005. In his cross-examination, he had deposed that all the five persons had gone out of the college, He had himself witnessed the said incident which happened inside the gate of the college. He has also deposed that students of different college had come on DCM Toyota. They were about 150 students who had started assaulting. The victim Amar Dev had also reached in that melee. He had seen from his class room that students were assaulting to Amar Dev and Ashutosh Rana. He cannot decipher the actual role of the assailants who were assaulting to Amar Dev and Ashutosh Rana. Injured Amar Dev and Ashutosh Rana were not brought in the school. There was profuse bleeding from their head therefore, they were sent to Bilhaur for giving first aid. He had also stated that discord continued about half an hour ensuing from 11.30 a.m. to 12.00 p.m. The Chauki Incharge was informed at about 11.00 ‘O’ clock who reached at about 15 to 20 minutes. It was further deposed by him that Chauki Incharge had dispelled the outsiders. The injured was taken to Hospital. He had not narrated this fact in his application. It was further deposed by him that Chauki Incharge had dispelled the outsiders. The injured was taken to Hospital. He had not narrated this fact in his application. It was further deposed by him in his cross-examination that in order to save Ashotosh, Amar Dev had jumped stairs which was about 6 feet high. From there he scaled out the wall and had also narrated this fact to the police and the same was not mentioned in the First Information Report. He has totally denied the suggestion that he is falsely implicating the appellant and no such incident had taken place and he is lodging the First Information Report on the basis of information received through his employees and had not seen the occurrence. 8. The P.W.2 Ashutosh Rana who was the student of B.Sc. Part-I is said to be the eye-witness of the occurrence. He stated in his examination in chief that on 1.9.2005, some dispute arose between him and the appellant and the college administration came and thereafter one group of students were sent outside the school while the one group remained inside. The Principal of the said college had taken written explanation from Amar Dev (deceased). Out side the college, Sarad Kushwaha and one unknown person had attacked upon him with danda and bottle. On his shriek and alarm Amar Dev came out and Yusuf (appellant) and Sheeloo Katiyar, Sarad Kushwaha and one unknown persons followed and attacked upon Amar Dev. The appellant Yusuf was armed with iron rod. Sheeloo was having bottle. Sarad and the unknown person were equipped with danda.In the said discord, he had sustained simple injuries. Amar Dev had received fatal injuries. The incident had taken place at about 10.30 a.m inside the school. Amar Dev was unconscious till 9.9.2005 and succumbed to injuries on the same day i.e.9.9.2005. The injured Amar Dev was firstly being treated in Chandni Nursing Home and thereafter he was referred to Haivar Hospital where he succumbed to injuries. It was deposed that he has received the information with respect to death of Amar Dev on 9.9.2005 at 7.00 a.m. In his cross-examination he had stated that he had sustained injuries and got his injuries examined at Private Hospital but he did not disclose the name of the doctor. It was deposed that he has received the information with respect to death of Amar Dev on 9.9.2005 at 7.00 a.m. In his cross-examination he had stated that he had sustained injuries and got his injuries examined at Private Hospital but he did not disclose the name of the doctor. In his cross-examination he has deposed that after the first incident in the class, he and Amar Dev were ousted from the class. They had gone outside from the premises of the college. At that time Yusuf and his friends were present inside the college when they came at 8.30 a.m. his friend Sarad went to call his other friends. He has admitted that he had not filed injury report. He has also denied suggestion that at the time of scuffle, Amar Dev reached thereafter after scaling out the well who had received injury on his leg and he fell on iron rod lying there. He has further stated that he had gone to school since the day of occurrence. He had also gone to lodge the First Information Report but his report was not lodged. He had not given any information to higher authorities. He had confirmed that there was some scuffle between the students at about 10.00 ‘O’ clock on 1.9.2005. 9. P.W. 3 Digvijay Singh who was working as Head Clerk of the School was informed by another clerk of the college that some scuffle had taken place at 10.30 a.m. He was informed that some scuffle had taken place in which Amar Dev and Ashutosh Rana were beaten by some outsider. P.W.3 Digvijay Singh had not seen who had assaulted them. He had only heard that there was some scuffle between Yusuf and Ashutosh Rana inside the class. Amar Dev and Ashutosh Rana were beaten by the friends of the appellant Mohd. Yusuf. P.W.3 Digvijay Singh was declared hostile. In his cross-examination by defence, he had stated that at the time of occurrence about 100 to 200 peoples were gathered there. The trial Court came at the conclusion that the appellant alongwith his associates is guilty of causing injury which resulted into death of Amar Dev Singh and convicted under Section 304 IPC read with Section 34 IPC. It was strongly argued by the learned counsel for the appellant that the conviction recorded by the trial Court is absolutely unsustainable in the eyes of law. It was strongly argued by the learned counsel for the appellant that the conviction recorded by the trial Court is absolutely unsustainable in the eyes of law. There is material contradiction in the prosecution case. The incident is alleged to have taken place at 10.30 a.m. on 1.5.2005. The victim Amar Dev Singh is alleged to have been assaulted by several persons including the appellant while in the statement under Section 161 Cr.P.C.it has been stated that all the persons who were beating the victim were armed with lathi, danda and iron rod. P.W. 1 Dr.R.R. Bhatnagar has stated that at about 10.30 a.m. some students including Mohd. Yusuf B.Sc Part-II, Ashutosh Rana B.Sc. Part—Gaurav Tripathi, B.Sc. Part-I,, Sarad Kushwaha B.A.Part-I and Ankur Kumar were quarrelling. On getting the said information, P.W.1 Dr.R.R.Bhagnagar alongwith some staffs went at the place of occurrence and got the dispute pacified. Amar Dev Singh Rana who was the friend of Ashutosh Rana went out to save his friend. In the meantime Mohd. Yusuf with the help of outsiders assaulted Amar Dev Singh as a result of which Amar Dev Singh sustained fatal injuries. He is not able to say as to who had assaulted the victim. The victim was admitted in injured condition at Sharma Nursing Home in Kanpur where Dr. Vikas Shukla P.W.8 was treating him. He was summoned by the prosecution during trial and proved that he had treated Amar Dev Singh from 1.9.5 to 9.9.2005. Neither any injury report of P.W.2. Ashutosh Rana nor of deceased Amar Dev Singh was adduced in evidence. 10. According to prosecution witness, P.W. 3 Digvijay Singh, Head Clerk of the School 150 to 200 people came on the spot. They were armed with lathi, danda and iron rod. It cannot be said that the appellant Mohd. Yusuf alone had caused injury. P.W.2 Ashutosh Rana specifically stated that Mohd. Yusuf and Sheeloo Katiyar Sharad Kushwaha and other persons attacked on Amar Dev Singh but none of them were arrested or charge-sheeted or stood for trial. The appellant alone was convicted under Section 304 IPC read with Section 34 IPC. It cannot be said that he was the anchor of the fatal injury on the head of the victim. Lastly it was stated that the appellant is in jail since the date of his arrest. The appellant alone was convicted under Section 304 IPC read with Section 34 IPC. It cannot be said that he was the anchor of the fatal injury on the head of the victim. Lastly it was stated that the appellant is in jail since the date of his arrest. More than five years have elapsed hence he may be released on the period already undergone. 11. Per contra learned AGA supported the finding of the trial Court and contended that it cannot be said to be a case of false implication. The appellant who was specifically named in the First Information Report at the very initial stage with respect to the quarrel having taken place between him and the P.W.2. The P.W.1 Dr.R.R.Bhatnagar and the P.W.2 Ashutosh Rana are the only ocular and independent witness who has no enmity with the appellant. The trial Court has rightly convicted the appellant. 12. Having considered the submissions advanced by the learned counsel for the parties and going through the record, it transpires that no doubt death had taken place of an innocent student in the incident occurred on 1.9.2005. The trial Judge on the basis of presumption convicted the appellant, such presumption cannot take place of proof on the basis of which conviction can be recorded. When there are serious lacunae and contradiction in the prosecution case, the Principal of the College had taken the entire incident very lightly and after the incident of assault he had not made any endeavour to lodge the FIR promptly or inform the parents of the victim. In his application moved on 79.2005, it was mentioned that after consulting with school administration, it was decided to lodge the FIR against the appellant and his associates. This itself shows that the part of the Principal for taking the incident in very casual manner. Even in the said application on the basis of which prosecution was set in motion, it has not been mentioned as to what was the cause of dispute which had prompted two groups whether it was ragging or some personal dispute whatsoever. This material aspect was over sighted by the prosecution. There are various contradictions in the statement of the P.W. 1 and P.W.2 who claim to be the eye-witness of the incident as to the manner of assault which has been later developed Nothing was mentioned in the FIR. This material aspect was over sighted by the prosecution. There are various contradictions in the statement of the P.W. 1 and P.W.2 who claim to be the eye-witness of the incident as to the manner of assault which has been later developed Nothing was mentioned in the FIR. The trial Court had found the appellant alone of causing injury over the head of the deceased. Though other persons were also named by the prosecution witnesses for causing injury with danda and bottle yet none of them were presented and the appellant was convicted by the trial Court under Section 304 IPC with the aid of Section 34 IPC. To apply Section 34 IPC apart from that there should be two or more accused and two factors must be established (i) common intention and (ii) participation of the accused in the commission of the crime. The presence or participation of other accused in the commission of offence which the prosecution had utterly failed to explain yet to convict the appellant under Section 304 read with Section 34 IPC is unwarranted. The appellant could not be imputed with the intention to cause death or the intention to cause that particular injury which has proved fatal. The appellant could not be convicted for having committed murder of the victim Amar Dev. It is not permissible to make interference that the appellant be imputed with knowledge that he was likely to cause an injury which was likely to cause death. In the result, the appeal is allowed. The judgment and order passed by the Additional Sessions Judge Court No. 8 Kanpur Dehat in Sessions Trial No. 52 of 2006 (State v. Mohammad Yousf) is hereby set aside. The appellant is directed to be released forthwith. Bail bonds are discharged. —————