Rakesh Tiwari, J.:- In S.T. 344 of 1982, three accused persons namely, Jai Prakash, Amar Nath and Chandra Bhushan were tried for the offence punishable under Section 302 /34 IPC. By the impugned judgment and order dated 11.10.1983, Special Judge, Varanasi while convicting accused Jai Prakash and Amar Nath, has acquitted Chandra Bhushan. Aggrieved by the acquittal of Chandra Bhushan, State of U.P. has filed the present Government appeal while complainant of the case has filed Criminal Revision no. 80 of 1984. Since both the appeal and the revision arise out of the same judgment and order, they have been heard together and are being disposed of by this common judgment. 2. Sri Arvind Kumar, Advocate practicing on criminal side for last about 10 years has been appointed as Amicus curiae to represent the case of respondent-accused as none of the Advocates of his choice appointed by him have put in appearance to pursue the case on his behalf. 3. We have heard Sri S.N. Tripathi, learned AGA for the appellant-state in government appeal, Sri C.S. Singh, learned counsel for the revisionist-applicant in criminal revision, Sri Arvind Kumar, Amicus curiae, representing the case of respondent-accused Chandra Bhushan and perused the record. 4. The facts, in brief, as culled out from the record are that first informant Markandey Tiwari son of Rampati Tiwari resident of village Kharwan P.S. Badagaon District Meerut submitted a written report at police station Badagaon on 11.6.82 at about 6.15 P.M., inter alia, stating that on 29.10.80 accused Amar Nath, his brother Awadhesh, his cousin Sheonath and his Pattidar Mewa assaulted him, his father Rampat and also his son Rajbali. A report in this regard under Sections 325,504 and 506 IPC was lodged at police station against Amarnath who is facing his trial. 5. A report in this regard under Sections 325,504 and 506 IPC was lodged at police station against Amarnath who is facing his trial. 5. It is averred in the FIR that in front of 'Osara of the first informant there is a well; that on 11.6.1982 at about 11.30 A.M. when the first informant along with Mool Chand Tiwari, Deonarain and one Ram Alam were sitting in his 'Osara, and his son Virendra alias Bullu was taking bath at the well, accused Amar Nath and Jai Prakash each armed with 'Katta' and Chandra Bhushan along with an unknown person, armed with 'Gandasa' came from south giving exhortation to kill Virendra, Jai Prakash and Amar Nath fired with their country made pistols upon Virendra who fell down near the 'Dalan' of Ram Adhar. This incident was seen by Mool Chand son of Raja Ram, Deonarain son of Mannan, Ram Alam son of Bachcha, mother and wife of Virendra and many persons of the village. Thereafter, all the three accused along with their associates firing in the air left the place of occurrence. Virendra was smarting. The first informant arranged a taxi of one Bankey Lal for carrying his injured son Virendra to Shiv Prasad Gupta Hospital, Varanasi but before the injured could reach the hospital he on the way succumbed to the injuries. 6. On the basis of written report the check report was scribed by Head constable Lala Ram Sachan. After making G.D. entry FIR was registered at case crime no. 78/1982, under Sections 302 IPC against accused persons Amar Nath, Jai Prakash, Chandra Bhushan and one unknown person on 11.6.82 at about 11.30 A.M. 7. S.I. Satya Narain Tiwari prepared the inquest report ( Ex.Ka-2) of deceased Virendra in presence of first informant and Mool Chand. He also written a letter ( Ex.Ka-4) to the C.M.O. along with police form no.13 ( Ex.Ka-5), photo lash ( Ex.Ka-6) and challan lash ( Ex.Ka-7) and handed over the dead body in a sealed wrapper for post mortem examination to constables Prem Chand Bharti and Ramji Thakur. 8. S.I. Ram Sundar Nishad recorded the statements of the statements and prepared site plan ( Ex.Ka-18) of the place of occurrence. He collected the blood stained and simple earth from the place of occurrence and prepared the recovery memo ( Ex.Ka-19). 9. Dr. 8. S.I. Ram Sundar Nishad recorded the statements of the statements and prepared site plan ( Ex.Ka-18) of the place of occurrence. He collected the blood stained and simple earth from the place of occurrence and prepared the recovery memo ( Ex.Ka-19). 9. Dr. C.B. Tripathi, ( PW-3) lecturer, Department of Forensic Medicine, Institute of Medical Sciences, B.H.U. Varanasi conducted the post mortem examination on the body of deceased Virendra on 12.6.82 at 11.00 A.M. On external examination he found that the deceased was a young man of about 28 years and he had met his death a day prior to the autopsy. Rigor mortis was present all over the body. Bleeding from the nostril was coming out. On internal examination it was found that 9th, 10th and 12th ribs were fractured. The cavity contained one liter blood. Digested food was present in small intestine and faecal matter was present in large intestine. The liver was found also punctured. 10. Following ante-mortem injuries were found on the person of the deceased. 1.Four gun shot entry wounds in an area of 8 cm. x 3-1/2 cm. over left side chest outer aspect 2 cm. below left axila 25 cm. outer to mid line and 126 cm. about left heal. Individually three wounds were 1-1/2 cm. x 3/4 cm. and inside each and one higher in chest was 2 cm. x 2-1/2 cm. in diameters margin contused and inverted. Direction- left to right ( in words) up to down and back to front surrounding skin showed tattooing more towards back side. 2. One gun shot entry wound 1 cm. in diameter circular over left side supra, clavicular region 3 cm. above on outer to external end of clinty and outer to mid line and 35 cm. from left heal. Direction- Front to back above to down and right to left. 3. Abraded contusion 5 cm. x 7 cm. over right shoulder. 4. Contusion 4 cm.x 2 cm. over right cheek. 5.Multiple abraded contusion 12 cm. x 5 cm. over front of right side chest 4 cm. below clavicle 6 cm. outer to mid line. 6 .Contusion 3-1/2 cm. x 4-1/2 cm. over lids of left eye. 7. One linear abraded contusion 14 cm. x 1/2 cm. horizontally placed over front of abdomen 14 cm. above umbilicus. 8. Gun shot exit wound circular 1-1/2 cm. in diameter over left side chest 3cm. below clavicle 6 cm. outer to mid line. 6 .Contusion 3-1/2 cm. x 4-1/2 cm. over lids of left eye. 7. One linear abraded contusion 14 cm. x 1/2 cm. horizontally placed over front of abdomen 14 cm. above umbilicus. 8. Gun shot exit wound circular 1-1/2 cm. in diameter over left side chest 3cm. below left axila and 26 cm. outer to mid line. 11. In the opinion of the Doctor the death had occurred due to shock and haemorrhage as a result of gun shot injuries to lungs and liver. 12. After completing the investigation, the I.O. submitted charge sheet ( Ex.Ka-20) under Section 302 IPC against all the three accused persons in the Court of Magistrate. Since the alleged offence under Section 302 IPC was exclusively triable by the court of Sessions, the Magistrate concerned committed the case to the Court of Session. Charge under Section 302 IPC was framed against accused Jai Prakash and Amar Nath and charge under Section 302 IPC read with Section 34 IPC was framed against accused Chandra Bhushan to which they pleaded not guilty and claimed to be tried. 13. In order to prove its case, the prosecution examined ten witnesses namely, Markandey Tiwari ( P.W.1), Mool Chand Tiwari ( P.W.2), Cr. C.B. Tripathi ( P.W.3), Deo Narain Tiwari ( P.W.4), H.C. Lala Ram Sachan ( P.W.5), Constable no. 2048, Prem Chand Bharti ( P.W.6), S.I. Satya Narain Tiwari ( P.W.7), H.C. Haridwar Rai ( P.W.8), Constable no.873, Mohd. Jabid ( P.W.9) and S.I. Ram Sunder Nishad ( P.W.10) whereas in defence the accused persons did not adduce any oral and documentary evidence. 14. In their statements under Section 313 Cr.P.C. the accused persons denied the charges and stated that they have been falsely implicated in this case due to enmity. 15. By the impugned judgment and order dated 11.10.83 the learned Special Judge, Varanasi acquitted the respondent-accused Chandra Bhushan giving him benefit of doubt. 16. 14. In their statements under Section 313 Cr.P.C. the accused persons denied the charges and stated that they have been falsely implicated in this case due to enmity. 15. By the impugned judgment and order dated 11.10.83 the learned Special Judge, Varanasi acquitted the respondent-accused Chandra Bhushan giving him benefit of doubt. 16. Learned AGA has submitted that all the three eye-witnesses, Markandey Tiwari ( PW-1), Mool Chandra ( PW-2) and Deo Narain ( PW-3) were consistent in their statements that respondent-accused Chandra Bhushan came to the place of occurrence along with other co-accused Jai Prakash and Amarnath with common intention to kill Virendra ( deceased), hence he was liable to be convicted for the offence under Section 302 /34 IPC; that the learned trial Court has erred in acquitting the respondent-accused Chandra Bhushan on the ground that his participation in the incident was not at all established. He further submits that the learned trial Court has erred in rejecting the testimony of Mool Chandra ( PW-2) and Deo Narain ( PW-4) on the ground that they were highly partisan and interested witnesses who had enmity with the accused. 17. Sri C.S. Singh, learned counsel for the complainant-revisionist in criminal revision aforesaid has submitted that there was overwhelming cogent evidence on record that the respondent-accused came at the spot armed with 'Gandasa' and exhorted to kill Virendra ( deceased) which shows that there was a pre-planning to finish Virendra and he shared common intention along with other co-accused. He also submits that in the case of an offence involving physical violence, it is essential for the application of Section 34 IPC that the person who instigates or acts the commission of crime must be present for the purposes of facilitating or promoting the offence, the commission of which is the aim of the joint criminal venture. Such presence of those, who in one way or the other way facilitate the execution of the common design, is itself tantamounts to actual participation in the criminal acts. 18. He also submits that there was consistent evidence of eye-witnesses that the incident commenced with the exhortation of the accused, hence the impugned judgment acquitting accused Chandra Bhushan has resulted in miscarriage of justice and is against the weight of evidence on record, and as such the same is liable to be set aside. 19. 18. He also submits that there was consistent evidence of eye-witnesses that the incident commenced with the exhortation of the accused, hence the impugned judgment acquitting accused Chandra Bhushan has resulted in miscarriage of justice and is against the weight of evidence on record, and as such the same is liable to be set aside. 19. Sri Arvind Kumar, Amicus curiae appearing for respondent-accused Chandra Bhushan in government appeal has supported the impugned judgment of acquittal and submitted that the respondent-accused is said to have reached the place of occurrence armed with 'Gandsa' and but no injury of 'Gandasa was found on the person of the deceased, hence the participation of the respondent-accused Chandra Bhushan is not at all established, and as such, the learned trial Court has rightly acquitted the respondent-accused, hence no interference is required by this Court. 20. After hearing learned counsel for the parties and on perusal of record it appears that the learned trial Court has committed no illegality or infirmity in acquitting respondent-accused Chandra Bhushan by giving him benefit of doubt as it has come in the evidence that he along with other co-accused came at the spot armed with 'Gandasa' but no role whatsoever was assigned to him that he had made any assault with 'Gandasa'. Even no injury inflicted by 'Gandasa' was found on the person of the deceased. Learned AGA could not show from the evidence on record that the respondent-accused could not have been falsely implicated or had committed any overact in the murder of Virendra ( deceased) and the prosecution story that the respondent-accused along with other co-accused had come at the spot in a premeditated and planned manner to commit the offence, therefore, we do not find any basis that on coming at the residence of deceased where he was taking bath from the well to have exhorted the other assailants to kill him. 21. The law in this regard is settled by the apex Court that sometimes a person may be falsely implicated only in order to take out hidden enmity or vengeance upon him though he may not have played an active or any role in the commission of the offence. 22. 21. The law in this regard is settled by the apex Court that sometimes a person may be falsely implicated only in order to take out hidden enmity or vengeance upon him though he may not have played an active or any role in the commission of the offence. 22. We have minutely scrutinized the evidence of all the witnesses and find that this is one of such case where benefit of doubt has rightly been extended by the learned trial Court to the respondent-accused and has acquitted him. No incriminating material has been found against him. Therefore, in the facts and circumstances of the case, we uphold the impugned judgment and order of acquittal of the respondent-accused passed by the learned trial Court. The government appeal as well as the criminal revision both are accordingly, dismissed. 23. Let a copy of this judgment be placed on the record of Criminal Revision No. 80 of 1984 ( Markandey Tiwari versus Chandra Bhushan and another) 24. Sri Arvind Kumar, Advocate appointed as Amicus curiae to conduct the case on behalf of respondent-accused Chandra Bhushan in government appeal shall be paid Rs.2100/- as his remuneration which shall be paid by the State within a period of three weeks.