Judgment : Per Virender Singh, C.J.(Oral): Appellant Mahabir Gosain (hereinafter to be referred to as accused) after suffering conviction for the charges of Section 302 read with Section 34 IPC and under Section 27 of Arms Act vide impugned judgment of learned 1st Additional Sessions Judge dated 07.03.2008 in a case relating to year 2001, when could not file an appeal impugning the said judgment, sought services of Jharkhand Legal Services Authority (for short JHALSA) in year 2012, consequently JHALSA engaged Ms. Shweta Singh to defend the accused. This is how huge delay occurred in filing the instant appeal which now stands condoned by the court vide order dated 18.09.2014. Accused is stated to be in custody for the last more than 14 years, therefore, priority has been given to this case for its final consideration. 2. The deceased in this case is Kedar Gosain and the accused is his son. He is from the first wife of the deceased. The case was initially registered under Sections 307/34 IPC and 27 of Arms Act, on the statement of Kedar Gosain, the deceased only, alleging therein that on 26.08.2000, when he, after finishing his dinner, was sleeping on a cot in the courtyard of his house, at about 1 A.M. his son along with other two persons came their and demanded liquor from him. He gave them liquor to drink and after taking that they demanded more liquor from him which he refused and at that time they started quarreling with him, when in the meantime one of them took out pistol and fired at him which hit below his neck and he sustained injury. It is further alleged that the occurrence attracted his wife P.W Laxmi Hembram who was also sleeping in the house. It attracted certain other persons staying nearby and in the meantime accused fled away. It is further stated in the said statement that due to darkness he could not identify those persons from their face. It is alleged in the said statement that the accused used to quarrel with him for demanding money and allowing him to stay in the house. Finger of suspicion was also raised upon one Bhakwa Munda, the neighbour of the deceased, with regard to his involvement in the present occurrence. 3. Deceased remained hospitalized for five days, developed Septicaemia during the treatment and ultimately died on 05.09.2000. Finger of suspicion was also raised upon one Bhakwa Munda, the neighbour of the deceased, with regard to his involvement in the present occurrence. 3. Deceased remained hospitalized for five days, developed Septicaemia during the treatment and ultimately died on 05.09.2000. The cause of death as one finds from the postmortem report is due to Septicaemia leading to Cardio Respiratory failure. 4. Investigation of the present case was carried out by P.W. M. P. Singh who had initially recorded the statement of deceased. After completion of the investigation, the accused was put to trial for the aforesaid offences for which he stands convicted and sentenced. 5. It needs to be mentioned here that during the investigation, two more assailants, who were allegedly shown along with accused at the time of occurrence, could not be arrested. 6. Prosecution, in support of his case, has examined P.W.1-Dr. Bishambhar Dayal, who had conducted the postmortem of the dead body of the deceased and got the postmortem exhibited, P.W.-2 Dr. P. Kujur, who had initially examined deceased and got the injury report exhibited, P.W.-3 Laxmi Hembrom, the wife of the deceased, who had not supported the case of the prosecution as such declared hostile, P.W.-4 Nandi Kuri, next door neighbour, who was also declared hostile, P.W.-5 Chokeya Ho, witness on hearsay evidence, P.W.-6 Shankar Sarkar, tendered witness and P.W.-7 Mahesh Pd. Singh, the Investigating Officer of the present case. 7. The case of the accused as one finds from his examination under Section 313 Cr. P.C. is of simple denial. However, he has not produced any witness in defence. 8. Heard learned counsel for both the sides and gone through the evidence available on trial Court record. 9. Ms. Singh submitted that conviction of the accused recorded with the aid of Section 34 IPC by the learned Trial Judge is not sustainable even if the prosecution case is taken to be true from the statement of the deceased himself which has ultimately termed as dying declaration. 9. Ms. Singh submitted that conviction of the accused recorded with the aid of Section 34 IPC by the learned Trial Judge is not sustainable even if the prosecution case is taken to be true from the statement of the deceased himself which has ultimately termed as dying declaration. She submitted that the case of prosecution is that the accused used to demand money from the deceased and wanted to stay in the house also which can not be said to be unusual especially in this case when the deceased had married to P.W. Laxmi Hembrom after the death of his first wife (mother of the accused), therefore, on this count there could be any quarrel between the father and the son. She further submitted that at the same time it is quite possible that the accused was in the habit of taking liquor and on the fateful day also, he along with his two friends/associates, had gone to the house of deceased to have liquor which according to the deceased, was served to three persons but when they demanded more liquor and the deceased refused, this resulted into a quarrel between the deceased and three persons which includes the accused and during that quarrel only, one of three (identity not known) took out a pistol and fired upon the deceased. She submitted that it is quite possible that one of the associates of the accused who too was served liquor, on account of refusal of having more liquor, took affront to it and took out the pistol and released one shot on the deceased. Learned counsel submitted that if the present case is seen in its entirety, as brought forward by the prosecution before the trial Court, common intention of all the three accused viz. to commit murder of the father of accused is conspicuously missing. Learned counsel, thus, submitted that it is a case in which conviction of the accused with the aid of Section 34 IPC will not be legally sustainable. 10. Learned counsel submits that but for the aforesaid piece of evidence i.e. the statement of deceased given to the police on the date of occurrence only, the prosecution has no other incriminating evidence connecting the accused with the commission of the main offence of Section 302 IPC as even the wife of the deceased has also not supported the case of the prosecution. 11. 11. In the same breath learned counsel submitted that charge of Section 27 of Arms Act also cannot be said to be proved against the accused as the fire arm was with someone else who was allegedly with the accused in the house of the deceased. The weapon of offence has not been recovered by the police during the investigation. She, thus, submitted that the accused deserves acquittal even for this charge also. 12. Per contra, learned State counsel submits that no doubt the prosecution has not been able to nab the two co-accused of the accused who were accompanying him when all three entered the house of deceased and demanded liquor but that fact by itself would not demolish the case of the prosecution so far as involvement of the present accused is concerned. According to learned State counsel it is the accused only who used to quarrel with the deceased and on the date of occurrence also, he along with his two associates, entered the house of deceased and then on refusal by the deceased to serve liquor to them, he was killed by one of them. Learned State counsel submitted that the accused has availed the services of his co-accused in killing his father, therefore, he has no escape. He, thus, prays for dismissal of the appeal. 13. It appears that the learned State counsel wants that the Court be swayed by sentiments as the allegation against the accused is of serious nature of allegedly killing his father, but sentiments have no place in criminal jurisprudence. The prosecution is supposed to prove the charge against the accused beyond any shadow of reasonable doubt, is the settled principle of criminal jurisprudence and in the case at hand, in our considered view, the prosecution is on a very slippery wicket to seek conviction of the accused with the aid of Section 34 IPC. 14. Admittedly, there is no evidence available on record that before the main accused who had released the shot from his pistol was instigated by the accused. 14. Admittedly, there is no evidence available on record that before the main accused who had released the shot from his pistol was instigated by the accused. What appears to us is from the evidence available on record is that when all the three persons including the accused entered the house of the deceased, they only wanted liquor and it was served to them also by the deceased and it is only when more demand of liquor was made by them upon which the deceased refused, a quarrel ensued between the deceased, accused and other two persons and at that time, one of them took out the pistol and released a shot hitting the vital part of the deceased i.e neck which ultimately proved fatal. From all what is available on record, it can be comfortably said that the accused along with his two associates had entered the house of the deceased to have liquor only and not with an intention to kill the deceased. Had anyone of them released the shot from the firearm immediately after entering the house of the deceased, one could gather the common intention to kill the deceased on account of some tiff between the deceased and his son, the accused herein. At the cost of the repetition, we may state here that here is a case in which three persons are entering the house of the deceased with a demand of liquor only and what happened thereafter, is a subsequent event which takes the common intention viz. to commit murder out of context. The case of the prosecution, when appreciated in that perspective, it can be safely said that it is a case in which the accused cannot be held guilty for the main charge of Section 302 IPC with the aid of Section 34 IPC. His conviction as recorded by the learned Trial Court, thus deserves to be disturbed. 15. So far as charge of Section 27 of Arms Act is concerned, learned State counsel has also fairly conceded that it is not proved against the accused. We, for our satisfaction, have also perused the evidence and find that the said charge is not proved against the accused and he deserves acquittal on that count also. 16. 15. So far as charge of Section 27 of Arms Act is concerned, learned State counsel has also fairly conceded that it is not proved against the accused. We, for our satisfaction, have also perused the evidence and find that the said charge is not proved against the accused and he deserves acquittal on that count also. 16. The net result now surfaces is that the prosecution has not been able to prove its case against the accused for the charge of Sections 302/34 IPC and even for Section 27 of Arms Act. Viewed thus, the instant appeal filed by the accused deserves to be allowed. Ordered accordingly. The impugned judgment of conviction and sentence slapped upon him is set aside and he is acquitted of all the charges framed against him. 17. Accused is stated to be in custody for the last 14 years. He shall be released forthwith, if not required in any other case. Registry is directed to convey the order to the concerned jail authority without any waste of time. Learned trial Court shall also be informed of the outcome of the instant appeal. 18. Before parting with the judgment, we, hereby leave a note of appreciation for Ms. Shweta Singh who has assisted the Court after being engaged from Jharkhand Legal Services Authority. We appreciate the labour made by her in this case. JHALSA should engage such like energetic lawyers, that too in a case of serious nature like the one on hand. 19. Copy of the judgment be also placed before Hon'ble Executive Chairperson, JHALSA.