JUDGMENT : Servesh Kumar Gupta, J. By way of this appeal, the appellant has challenged the judgment and order dated 29.05.2009, rendered by learned Additional Sessions Judge, Kashipur, District U.S. Nagar in Sessions Trial No.231 of 2004, titled as “State Vs. Mohsin and others”. The said trial pertains to crime no.196 of 2004 u/s 302/34 IPC, registered at P.S. Kashipur, wherein four accused persons were tried. Out of those four, one Darpan Saraswat was acquitted by the trial court; at the same time, appellant/accused Deepak @ DM along with co-accused Mohsin and Iqbal were convicted for the offences under Section 302/34 IPC, wherefor they have appropriately been sentenced. 2. Here it is relevant to mention that the instant appeal has been filed only by the accused Deepak, whereas rest of the convicts, viz. Mohsin and Iqbal, have not preferred any appeal so far, as apprised by learned counsel for the appellant. 3. The questioned incident relates back to 10.3.2004 which took place at 10 PM on the road in front of a shop known as ‘Goswami Electronics Store’, Subhash Nagar, Kashipur (U.S. Nagar), when the appellant Deepak @ DM, with co-accused Mohsin, Darpan Saraswat and Iqbal, were indulged in quarreling with Bhuwan Puri (deceased) under intoxicated state. Complainant Govindi Puri, on being informed about the said occurrence by PW3 Harendra Singh Bisht @ Moni (friend of deceased), rushed to the spot with her brother-in-law Harish Puri and son Lalit Puri. In the electric streetlight, complainant and other witnesses saw all the four accused having a scuffle with the victim. As soon as the complainant raised an alarm, appellant/accused Deepak allegedly exhorted Mohsin to shoot Bhuwan Puri, as his family members had arrived. On such exhortation, accused Mohsin shot a fire upon complainant’s son Bhuwan Puri. Soon after, accused Iqbal too opened fire upon the victim. At that time, one Satendra @ Sonu R/o old Avas Vikas, was also present, who along with victim’s family members began shouting. The accused persons then re-loaded their respective weapons, and brandishing them, took to their heels from the spot. Victim Bhuwan Puri succumbed to his injuries at the spot itself. Complainant (PW2) then got the FIR (Ex.Ka-1) scribed by one Gopal Giri Goswami. She handed over the same to the police just after one and a quarter hour i.e. on 10.3.2004 at 11:15 PM. Chick report thereof is Ex.Ka.4. 4. Victim Bhuwan Puri succumbed to his injuries at the spot itself. Complainant (PW2) then got the FIR (Ex.Ka-1) scribed by one Gopal Giri Goswami. She handed over the same to the police just after one and a quarter hour i.e. on 10.3.2004 at 11:15 PM. Chick report thereof is Ex.Ka.4. 4. The police then swung into action and prepared the inquest report (Ex.Ka-1), which came to be concluded on 11.3.2004 at 7:30 AM. In the opinion of the members of inquest, death had taken place due to firearm injuries, nonetheless they recommended for autopsy. 5. Post-mortem on the dead body was conducted by PW4 Dr. B.C. Joshi on 11.3.2004 at 11:15 AM. The following ante-mortem injuries were recorded in the report (Ex.Ka-3): - “1.Firearm injury with (wound of entry) inverted margins and fracture of under laying bone size 2.00 cm in diameter with slight blackening all around. Excessive bleeding marks present on left parietal region 4 cm above the pinna of left ear. 2. Firearm injury (wound of entry) 2. 0 cm in diameter on right chest, 4.0 cm below and medial to right nipple at 4 o’clock position with blackening all around it. Excessive bleeding marks present. On dissection of head, multiple fracture bone particles seen inside the skull with laceration of brain matter. 21 metallic particles were recovered from the brain cavity which is full with blood. Cause of death due to shock and haemorrhage as a result of ante-mortem firearm injuries.” 6. From the place of occurrence, the police recovered an empty cartridge of 12 bore, recovery memo thereof is Ex.Ka-6. Memo of recovery of empty liquor bottles besides glasses is Ex.Ka-7. On 17.3.2004, on arrest of accused Mohsin, a country-made pistol of 12 bore was recovered from his possession. Its recovery memo is Ex.Ka-13. On 26.3.2004, a country-made pistol of 12 bore was recovered at the instance of accused Iqbal. Memo of said recovery is Ex.Ka-16. The I.O., after obtaining sanction from the concerned District Magistrate to prosecute the accused Iqbal and Mohsin u/s 25 Arms Act, (Ex.Ka-19 and Ka-20 respectively), culminated investigation into submission of a charge-sheet (Ex.Ka-25) against all the four accused persons, as afore-mentioned. 7. Memo of said recovery is Ex.Ka-16. The I.O., after obtaining sanction from the concerned District Magistrate to prosecute the accused Iqbal and Mohsin u/s 25 Arms Act, (Ex.Ka-19 and Ka-20 respectively), culminated investigation into submission of a charge-sheet (Ex.Ka-25) against all the four accused persons, as afore-mentioned. 7. On 9.8.2004, learned Additional Sessions Judge, U.S. Nagar framed charge against the accused Iqbal, Deepak and Darpan Saraswat for the offences u/s 302/34 IPC, whereas a separate charge, for the offence u/s 302 IPC, was leveled against the accused Mohsin. They abjured their guilt and claimed trial. It, however, appears that for no just reason, charge u/s 25 Arms Act was not leveled against the accused Mohsin and Iqbal, though being charge-sheeted for the said offence. 8. Prosecution has examined as many as six witnesses in this case, who are; PW1 Lalit Puri (brother of deceased), PW2 Smt. Govindi Puri (mother of deceased), PW3 Harendra Singh Bisht (deceased’s friend who informed about the occurrence to PW2), PW4 Dr. B.C. Joshi (who conducted autopsy), PW5 S.O. Suresh Chandra Joshi (I.O. of the case) and PW6 Constable Hardeep Singh (witness of recovery of country-made pistol at the instance of accused Iqbal). 9. After the prosecution evidence, statements of accused persons u/s 313 Cr. P.C. were recorded. Appellant/accused Deepak has simply denied each and every prosecution evidence. However, no oral or documentary evidence was led in defence. 10. We have heard learned counsel for the appellant as well as learned State counsel nay perused the entire material available on record before us. 11. In this case, PW1 Lalit Puri is the brother of deceased. He has proved that on being informed about the occurrence by PW3 Harendra Singh Bisht (deceased’s friend), he along with his mother Smt. Govindi Puri (PW2) reached at the spot. He has deposed that appellant Deepak exhorted his companions to shoot the deceased Bhuwan Puri in view of the fact that his family members had arrived. 12. PW2 Smt. Govindi is the mother of deceased, as also of PW1. She has led the similar evidence in respect of the appellant Deepak, as has been deposed by PW1. 13. PW3 Harendra Singh Bisht, who is the resident of same locality. He has stated that all four accused, namely, Mohsin, Iqbal, Deepak and Darpan were consuming liquor with deceased Bhuvan Puri. She has led the similar evidence in respect of the appellant Deepak, as has been deposed by PW1. 13. PW3 Harendra Singh Bisht, who is the resident of same locality. He has stated that all four accused, namely, Mohsin, Iqbal, Deepak and Darpan were consuming liquor with deceased Bhuvan Puri. Meanwhile, Satendra reached there who also participated with the accused persons in consuming liquor. The witness has stated that all the accused persons were indulged in exchange of heated arguments, and were also hurling abuses to each other. In this scenario, PW3 went to the victim’s house and informed his mother besides other family members regarding the scene. He (PW3) asked complainant and his family members to fetch Bhuvan from the spot. After giving such information, he went to his house. In the light of above-evidence, it is amply proved that this witness (PW3) has not seen the incident of opening fire by the accused upon Bhuwan Puri, much less any exhortation on the part of the appellant. 14. PW4 is Dr. B.C. Joshi, who conducted autopsy on the person of deceased. In his opinion, death of deceased took place due to shock and haemhoragge as a result of ante-mortem firearm injuries. 15. PW5 S.O. Suresh Chandra Joshi is the I.O. of the case. He has proved the submission of charge-sheet against the accused persons on culmination of investigation. 16. PW6 is Constable Hardeep Singh. He is the witness of recovery of firearm at the instance of accused Iqbal. He has proved the recovery memo (Ex.Ka-16). 17. The main submission, as has been put forth by learned counsel for the appellant, is that in the first information report, the role assigned to the appellant is only of exhortation. No further role has been ascribed to the appellant in commission of the crime. The report explicitly highlights that on noticing the arrival of members of victim’s family, appellant/accused Deepak exhorted the accused Mohsin to open the fire. On his exhortation, firstly accused Mohsin, and subsequently Iqbal, opened fire, which resulted into the death of victim. In this case, the appellant has been found guilty for the offence u/s 302/34 IPC. At this stage, Section 34 IPC is relevant to mention which is as follows:- “34. On his exhortation, firstly accused Mohsin, and subsequently Iqbal, opened fire, which resulted into the death of victim. In this case, the appellant has been found guilty for the offence u/s 302/34 IPC. At this stage, Section 34 IPC is relevant to mention which is as follows:- “34. Acts done by several persons in furtherance of common intention- When a criminal act is done by several persons in furtherance of the common intention of all, each of such persons is liable for that act in the same manner as if it were done by him alone.” 18. As regards the conviction of the appellant u/s 302 IPC with the application of Section 34 IPC is concerned, it has been held by the Hon’ble Apex Court in a catena of judgments that the essential condition to invoke the provision of Section 34 IPC is the existence of ‘common intention’ of all the accused persons named in the crime. The said Section makes liable each accused for the Criminal act if committed by him in furtherance of a common intention alike the one who had done that act alone. A common intention pre-supposes prior concert. It requires a pre-arranged plan. The common intention can be determined by the words or from subsequent conduct i.e. by a systematic plan of campaign unfolding itself during the course of action which could only be referable to prior concert and pre-arrangement. However, the entire evidence, so relied upon by the prosecution, do not suggest any prior concert or pre-arrangement on the part of the appellant with co-accused persons. 19. Now, when the facts of the instant case are looked into, we are of the considered view that though the appellant Deepak was present in the company of rest of the convicts (who are not the appellants before us) and had also consumed liquor with them, but the element of ‘common intention’ has nowhere been adverted either in the facts stated in the first information report or in the evidence of any of the prosecution witnesses. During the course of consuming liquor, heated exchange of words nay hurling abuses to each other commenced between the accused persons and the victim. But the same does not reflect any pre-arranged or a well-meditated plan made by all the accused persons, along with the appellant, so as to kill the victim Bhuwan Puri. 20. During the course of consuming liquor, heated exchange of words nay hurling abuses to each other commenced between the accused persons and the victim. But the same does not reflect any pre-arranged or a well-meditated plan made by all the accused persons, along with the appellant, so as to kill the victim Bhuwan Puri. 20. That apart, informant Govindi Puri has admitted in her statement that except instigating his companions, appellant Deepak did nothing nor did he take any part in the crime and that he remained standing by the side of the witnesses. We are required to see whether there was any need for exhortation in the present case and had the appellant not exhorted his companions to assault the deceased, could the incident be avoided. 21. In the present case the Appellant is said to have exhorted the actual assailants and thereafter he remained standing as a spectator at the scene of occurrence. He did not participate in the incident, nor did he cause any injury to the deceased or any witness present at the scene of occurrence. No overt act has been attributed to him except the exhortation. Exhortation made to kill the deceased Bhuwan Puri is attributed to the appellant and that by itself is not a strong evidence to prove his complicity. The evidence of exhortation is, in the very nature of things, a weak piece of evidence. Unless the evidence in this respect be clear, cogent and reliable, no conviction for abetment can be recorded against the person alleged to have exhorted the actual assailant. On a careful perusal of the entire evidence on record, we find no evidence to show that the exhortation was actually required for the commission of the offence. 22. The role of the appellant of exhorting co-accused persons to open fire upon the victim, at best, could have been covered within the provisions of section 107 IPC viz. abetment of a thing, punishment whereof has been provided u/s 109 IPC, but unfortunately neither the Investigating Officer has submitted any charge-sheet for the same nor the trial court, at its own motion, leveled the charge therefor, against the appellant. In absence thereof, we feel that the accused cannot be held guilty for the offence even u/s 109 IPC. 23. Learned counsel for the appellant has cited the following pronouncements of the Hon’ble Apex Court in his defence: - 1. In absence thereof, we feel that the accused cannot be held guilty for the offence even u/s 109 IPC. 23. Learned counsel for the appellant has cited the following pronouncements of the Hon’ble Apex Court in his defence: - 1. Jag Narain Prasad Vs. State of Bihar, 1998 SCC (Cri) 1346. 2. Hem Raj and others Vs. Raja Ram and others, (2004) 9 SCC 18 . 3. Bikramaditya Singh Vs. State of Bihar, (2010) 15 SCC 211. 24 We have given our anxious consideration to the above-quoted authorities. Though in all cases, the appellants, being assigned the role of exhortation, were acquitted by the Apex Court by extending benefit of doubt, but it is accepted everywhere that fact of every criminal case are hardly similar to each other. They differ from each other in one respect or the other. The decisions by the Apex Court in those cases were entirely in different contexts. Neither the facts of the instant case are similar nor the role of the present appellant has any similarity with the appellants in the three quoted precedents. Hence, we do not want to burden our judgment by comparing, and then distinguishing each one of them, with the case in hand. 25. We also do not find any necessity to discuss the evidence relating to recovery memos besides the report given by the Forensic Science Laboratory, as the same are at all not relevant to adjudicate the present appeal. 26. In view of the above, we feel that the trial court has gone wrong in holding the appellant guilty for the offence of Section 302 IPC with the assistance of Section 34 IPC and thus, his conviction and sentence, as awarded by the impugned judgment, are liable to be set aside. 27. Accordingly, the appeal is allowed. Impugned judgment and order of conviction, so far as it relates to the appellant Deepak @ D.M. only, is hereby set aside. He is on bail. He needs not to surrender. His bail bonds are cancelled and sureties are discharged. 28. Let the lower court record with copy of this judgment be sent to the court concerned.