Judgment T.P. Sharma, J. 1. Since the above criminal appeals arise out of the common incident, the same are being disposed of by this common judgment. By filing Cr. Appeal Nos. 449, 663 & 667 of 2010, the appellants have challenged the legality and propriety of judgment of conviction and order of sentence dated 25.06.2010 passed by the 7th Additional Sessions Judge (FTC) Durg in S.T. No. 145/2008 whereby & whereunder the trial Court after holding the appellants guilty for kidnapping deceased Ravi Sharma and thereafter committing his homicidal death, amounting to murder, in sharing common intention, convicted them under Sections murder, in sharing common intention, convicted them under Sections 302/34 & 364 of the Indian Penal Code (for short 'the IPC') and sentenced to undergo R.I. for life imprisonment and fine of Rs. 1,000/-, in default to undergo R.I. for 02 months and R.I. for 10 years and fine of Rs. 1000/-, in default to undergo additional R.I. for 02 months respectively. 2. As per case of the prosecution, on 31.3.2008 Vimal @ Bablu (PW-1), Pankaj (PW-2), Yogesh (PW-5) & Rinku (PW-6) and deceased Ravi Sharma after consuming liquor went to Hotel Shivprasad at Supela Chowk, Bhilai for eating meals where appellant Prabhat was sitting. On account of love marriage of appellant Prabhat, some talks took place between him and the deceased. Thereafter without taking meals they were returning by motorcycles. Deceased Ravi Sharma & Pankaj (PW-2) were sitting in one motorcycle and Vimal (PW-1), Yogesh (PW-2) & appellant Prabhat were sitting in one motorcycle. Appellant Prabhat tried to overtake motorcycle of deceased Ravi Sharma and in that process his motorcycle slipped and appellant Prabhat, Vimal (PW-1) & Yogesh (PW-2) fell down from the motorcycle and received injuries. Appellant Prabhat received more injuries and he became semi-unconscious. They obtained water from one ice-cream vendor and provided the same to Prabhat. While they were taking appellant Prabhat to the hospital, appellant Sakib & Babbi @ Malkit Singh came by motorcycle and asked from appellant Prabhat about the persons whereupon he informed them that they are persons and then they assaulted Bablu @ Vimal (PW-1) as a result he fled from the spot. They were assaulting deceased Ravi Sharma by kicks. All of a sudden, appellant Babbi @ Milkit Singh took out knife and caused injuries to deceased Ravi Sharma. They also chased the deceased to some distance. They were assaulting deceased Ravi Sharma by kicks. All of a sudden, appellant Babbi @ Milkit Singh took out knife and caused injuries to deceased Ravi Sharma. They also chased the deceased to some distance. Other witnesses fled from the spot. They informed the police-and Pawan Sharma (PW-7), brother of the deceased. They again came on the spot and searched the deceased but did not find him. Initially Bablu @ Vimal (PW-1) lodged FIR vide Ex. P-1 for the offence punishable under Section 364 of the IPC. On 1.4.2008 at about 6.00 a.m. dead body of the deceased was noticed near Laxmi Market then Pawan Sharma (PW-7), brother of the deceased, went to Police Station Supela and lodged Merg vide Ex. P-14. The Investigating Officer left for scene of occurrence and after summoning the witnesses vide Ex. P-15, inquest over the dead body of the deceased was prepared vide Ex. P-2. Spot map was prepared vide Ex. P-3. Bloodstained soil, plain soil & dried blood were recovered from the spot vide Ex. P-7. Dead body was sent for autopsy to the District Hospital, Durg where Dr. Lal Mohammed (PW-11) conducted autopsy vide Ex. P-11 and noticed following injuries:- Abrasion of 1 x 1 c.m. on the right knee. Incised wound of 2 x 1 x 2 c.m. on the right thigh Incised wound lateral to sternum bone & 7 c.m. below left nipple size of which was 3 x 1 1/2 x 7 c.m. Blood clot below sternum and under mediastina. Mode of death was shock. Clothes & viscera of the deceased were sealed and seized vide Ex. P-6. During the course of investigation, appellant Prabhat was taken into custody, he made disclosure statement of motorcycle vide Ex. P-8 and the same was recovered at his instance vide Ex. P-12, appellant Babbi @ Malkit Singh was taken into custody, he made disclosure statement of Knife vide Ex. P-9 and the same was recovered at his instance, vide Ex. P-13, appellant Sakib was taken into custody, he made disclosure statement of TVS Star motorcycle vide Ex. P-10 and the same was recovered at his instance vide Ex. P-11, Seized articles were sent for chemical examination to the Forensic Science Laboratory vide Ex. P-23 and as per report of Ex. P-26, presence of blood has been affirmed on the knife and other clothing. P-10 and the same was recovered at his instance vide Ex. P-11, Seized articles were sent for chemical examination to the Forensic Science Laboratory vide Ex. P-23 and as per report of Ex. P-26, presence of blood has been affirmed on the knife and other clothing. Statements of witnesses were recorded under Section 161 of Cr.P.C. 3. After completion of investigation, charge-sheet was filed in the Court of Judicial Magistrate 1st Class, Durg, who, in turn, committed the case to the Court of Sessions Judge from where the learned Additional Sessions Judge has received the case on transfer for trial. In order to prove guilt of the appellants, the prosecution had examined as many as 13 witnesses. Statements of the appellants were recorded under Section 313of the Cr.P.C., in which they denied the circumstances appearing against them and pleaded innocence & false implication in the crime in question. They have also examined defence witnesses Dr. M. Rajsekhar (DW-1), G. Almesh Ram (DW-2) & Malkit Singh (DW-3) i.e. appellant in Cr.A. No. 663/10, and have taken the defence that name of appellant in Cr.A. No. 663/10 is not Babbi @ Malkit Singh but his name is only Malkit Singh. They also tried to prove that on the date of incident Sakib was ill and he was treated by Dr. M. Rajsekhar (DW-1). 4. After providing opportunity of hearing to the parties, the trial Court vide impugned judgment convicted and sentenced the appellants herein as mentioned above. 5. We have heard learned counsel for the parties and perused the judgment Impugned & record of the trial Court. 6. Mr. Singh, Senior Advocate, Mr. Kochar & Mr. Paranjpe, Advocates for the appellants vehemently argued that conviction of the appellants is substantially based on the evidence of Vimal @ Bablu (PW-1), Pankaj (PW-2), Yogesh, (PW-5) & Rinku (PW-6) but their evidence does not inspire confidence and trustworthy. As per their evidence, there was no motive for commission of offence. They were having some grudge against appellant Prabhat but they had taken meals along with Prabhat and were coming back along with Prabhat by motorcycle and during the process of overtaking motorcycle by Prabhat, they fell down and Prabhat received injuries and became semi-unconscious. They have not adduced any evidence to show that appellant Prabhat had called other two appellants and it was co-incident that-appellant Prabhat was sitting in Hotel Shivprasad. They have not adduced any evidence to show that appellant Prabhat had called other two appellants and it was co-incident that-appellant Prabhat was sitting in Hotel Shivprasad. It was further coincident that other appellants came by motorcycle. As per their evidence, all the appellants were known to them but reasons best known, Babbu @ Vimal (PW-1) had not mentioned the names of appellant Shakib & Babbi @ Malkit Singh in the body of FIR (Ex. P-1) and their names only find place in the first page of the FIR (Ex. P-1). As per their evidence, the deceased was assaulted by knife but the FIR was not registered for the offence committed by the use of arm and only offence under Section364 of the IPC was registered. Evidence of these witnesses are not sufficient for drawing inference that other appellants Babbi @ Malkit Singh came to the spot and thereafter all the appellants have caused injuries in sharing common intention. They failed to depose that which appellant had caused which injuries and at which place. As per their evidence, injury was caused near Laxmi Market but dead body of the deceased was found 200 meter away from the said place. As per evidence of the doctor, there was injury upon the ventricle (heart), therefore, it was not possible for the deceased to move even for 5-6 feet. Even otherwise bloodstained soil has not been recovered from the place of incident where the deceased had allegedly received injury. These evidences clearly reveal that appellant Babbi @ Malkit Singh & Shakib were not present on the spot. Appellant Prabhat has not caused any injury and even he was not in a position to cause any injury. Therefore, all the appellants are entitled for acquittal. Reliance is placed in the matter of Sajjan Sharma Vs. State of Bihar, AIR 2011 SC 632 & Ram Kumar Pande Vs. The State of M.P., AIR 1975 SC 1026 in which the Supreme Court has held that in case name of appellant is not mentioned in the FIR and no overt act as regard the appellant is proved then his conviction cannot be sustained. Further place reliance in the matters of Sripathi & others Vs. State of Karnataka, AIR 2010 SC 249 ; State of U.P. Vs. Gajadhar Singh & Ors., AIR 2009 SC 1935 ; Kashmira Singh Vs. Further place reliance in the matters of Sripathi & others Vs. State of Karnataka, AIR 2010 SC 249 ; State of U.P. Vs. Gajadhar Singh & Ors., AIR 2009 SC 1935 ; Kashmira Singh Vs. State of Punjab, AIR 1994 SC 1651 & Rambilas Singh & others Vs. State of Bihar, AIR 1989 SC 1593 in which the Supreme Court has held that in case out of several accused persons, one accused took out some dangerous weapon and caused injuries then other accused persons cannot be held liable for causing such offence in sharing common intention unless the overt act of the other accused persons are specifically proved. Reliance is also placed in the matter of Munna Chanda Vs. State of Assam, (2006) 3 SCC 752 in which the Supreme Court has held that the deceased was caught hold by the accused, but after freeing himself the deceased ran away from the spot and thereafter the deceased was chased by the accused along with other persons, then, in absence of specific proof that who had caused injuries after chasing the deceased, the accused persons cannot be held liable. 7. On the other hand, learned counsel for the respondent-State opposed the appeals and submits that evidence of Vimal @ Bablu (PW-1), Pankaj (PW-2) & Yogesh (PW-5) & Rinku (PW-6) are sufficient for proving the guilt of the appellants. The appellants have chased the deceased and caused injuries. No other person was present at the time of chasing. They were friends, they gathered at one place and their common intention developed on the spot. Therefore, all the appellants are liable for commission of offence of kidnapping and murder of the deceased in sharing common intention. 8. In order to appreciate arguments advanced on behalf of the parties, we have to examine evidence adduced on behalf of the prosecution. 9. In the present case homicidal death of the deceased as a result of fatal injuries found on the vital part of his dead body has not been substantially disputed on behalf of the appellants. Even otherwise from the evidence of Vimal @ Bablu (PW-1), Pankaj (PW-2), Yogesh (PW-5), Rinku (PW-6), FIR (Ex. P-1), Merg (Ex. P-14). Dr. Lal Mohammed (PW-11) and autopsy report (Ex. P-17), it is established that death of the deceased was homicidal in nature. 10. Even otherwise from the evidence of Vimal @ Bablu (PW-1), Pankaj (PW-2), Yogesh (PW-5), Rinku (PW-6), FIR (Ex. P-1), Merg (Ex. P-14). Dr. Lal Mohammed (PW-11) and autopsy report (Ex. P-17), it is established that death of the deceased was homicidal in nature. 10. As regards the complicity of the appellants in crime in question, conviction of the appellants is substantially based on the evidence of Vimal @ Bablu (PW-1), Pankaj (PW-2) & Yogesh (PW-5). As per evidence of Vimal @ Bablu (PW-1), after consuming liquor, he along with Pankaj (PW-2), Yogesh (PW-5), Rinku (PW-6) and the deceased went to Hotel Shivprasad for taking meals where appellant Prabhat was sitting. Some discussions between the deceased and appellant Prabhat took place and thereafter they took their meals. Thereafter deceased Ravi Sharma and Pankaj (PW-2) were returning by one motorcycle and he, Yogesh (PW-5) & appellant Prabhat were returning in one motorcycle. Appellant Prabhat tried to overtake motorcycle of deceased Ravi Sharma and in that process his motorcycle slipped and they fell down from the motorcycle as a result appellant Prabhat became semi-unconscious. They provided water to him. At that time two other appellants came by motorcycle, they asked appellant Prabhat that who are the persons, then, he said these are the persons and thereafter appellant Sakib caught hold him and Babbi caught hold Ravi and thereafter took out knife whereupon Ravi shouted that they are having weapons. When appellant Babbi waved the knife, they fled from the spot. After some time they came back to the spot but they did not find the appellants or Ravi Sharma on the spot. He informed Pawan Sharma (PW-7), brother of Ravi Sharma. He also lodged the FIR vide Ex. P-1. On the second day morning, they noticed dead body of deceased Ravi Sharma. Pankaj (PW-2) & Yogesh (PW-5) have substantially supported the evidence of Vimal @ Bablu (PW-1). 11. FIR has been lodged by Vimal @ Bablu (PW-1) and names of all the appellants have been mentioned in the front page of the FIR but did not find place in the body of FIR. In the body of FIR it has been mentioned that "appellant Prabhat and his two friends". Body of FIR also contained that "two persons have caused injuries to Ravi Sharma by weapon like dagger". FIR has been lodged on 1.4.2008 at 3.05 a.m. i.e. after four hours of the incident. In the body of FIR it has been mentioned that "appellant Prabhat and his two friends". Body of FIR also contained that "two persons have caused injuries to Ravi Sharma by weapon like dagger". FIR has been lodged on 1.4.2008 at 3.05 a.m. i.e. after four hours of the incident. Statements of witnesses under Section 161 of Cr.P.C. have been recorded on the same day vide Ex. D-1 & D-2 (PW-1 Bablu @ Vimal), Ex. D-3 (PW-3 Pankaj) & Ex. D-4 (PW-5 Yogesh) which show presence of these witnesses on the spot. Defence had cross-examined these witnesses at length, there were contradictions & omissions but their evidences are very specific that appellant Prabhat was present in the Hotel Shivprasad and while they were coming back from the hotel, on account of slip of motorcycle they fell down and appellant Prabhat received injuries. At that time other two accused persons had come, they asked about the persons from appellant Prabhat and thereafter they caused injuries. Appellant Babbi @ Malkit Singh took out knife and chased the deceased. Their evidence reveal that they chased the deceased upto some extent and thereafter injuries might have been caused. These evidences clearly revealed that initially in Hotel Ramprasad there was no cause for causing homicidal death of the deceased and even at the time of felling from the motorcycle also there was no cause for causing homicidal death of deceased Ravi Sharma. Their evidences do not reflect that it was pre-planned or they were well informed. It appears that it was co-incident when appellants Babbi @ Malkit Singh & Shakib came to know about some incident with appellant Prabhat, then, they got annoyed and tried to cause injury and in that process appellant Babbi took out knife and caused injuries to Ravi Sharma who died and his dead body was found about 200 meter away from the place of incident. 12. As per Ex. P-17, there was penetrating injury upon ventricle (heart) which shows that the deceased was not in a position to move for 100-150 meter and thus it is clear that the deceased had received injuries near the place where his dead body was found. 12. As per Ex. P-17, there was penetrating injury upon ventricle (heart) which shows that the deceased was not in a position to move for 100-150 meter and thus it is clear that the deceased had received injuries near the place where his dead body was found. Evidence of the aforesaid witnesses does not show that all the appellants were sharing common intention in causing such injury or they were having knowledge that Babbi @ Malkit Singh is having knife or that he will take out the knife and caused injuries to the deceased, but the fact remains that Babbi @ Malkit had caused injuries. 13. As held in the case of Ram Kumar Pande, AIR 1975 SC 1026 (supra), name of appellant Babbi @ Malkit Singh did not find place in the body of FIR but it finds place in the front page of FIR. Even otherwise non-mentioning of name in the body of FIR has been properly explained by the witnesses. Statements of the witnesses under Section 161 of Cr.P.C. have been recorded on the same day which further finds name of appellant Babbi @ Malkit Singh. In the present name of appellant Babbi @ Malkit Singh has been mentioned in the FIR and it has also been explained by the prosecution witnesses. Therefore, the case of Ram Kumar Pande, AIR 1975 SC 1026 (supra) is distinguishable on facts of the present case. 14. As held in the matters of Munna Chanda, (2006) 3 SCC 752 (supra), in the present case the prosecution had failed to prove sharing of common intention or knowledge to other appellants about keeping of knife by appellant Babbi @ Malkit Singh or his further act. This is a criminal prosecution and burden to prove the case, beyond shadows of doubt was upon the prosecution but the prosecution failed to prove the fact that keeping of knife by appellant Babbi was well within the knowledge of other appellants or at their instance he was keeping knife or at their instance, he had caused injuries to the deceased. In absence of such evidence it would be difficult to hold that all the appellants have caused homicidal death of the deceased in sharing common intention but the fact remains that appellant Babbi @ Malkit had caused fatal injuries to the deceased which has resulted into his death. 15. In absence of such evidence it would be difficult to hold that all the appellants have caused homicidal death of the deceased in sharing common intention but the fact remains that appellant Babbi @ Malkit had caused fatal injuries to the deceased which has resulted into his death. 15. As regards the motive, it only aids in criminality and can be inferred on the basis of nature of injury, kind of weapon used, part of the body affected and other similar circumstances. In the present case as per evidence of Vimal @ Bablu (PW-1), Pankaj (PW-2) & Yogesh (PW-5), there was no previous enmity between the deceased and the appellant, Even it was a co-incident that appellant Babbi @ Malkit Singh came on the spot where appellant Prabhat was lying in semi-unconscious condition after receiving injuries. He asked from Prabhat and after hearing the answer of Prabhat, he got provoked, took out knife, chased the deceased and caused injuries to him. There was no motive to cause such injury, there was no such occasion to cause injuries but he had caused injuries on sudden provocation when he was provoked by the conduct and information given by co-appellant Prabhat. However, at the time of causing injuries to the deceased on his vital part by knife, appellant Babbi @ Malkit was having definite knowledge that by his act the deceased may die. Therefore, the act attributed to appellant Babbi @ Malkit squarely falls within the ambit of Section 304 Part-1 of IPC and not under Section 302 of IPC. Further, the act attributed to the appellants also does not come within the ambit of Section 364 of IPC. 16. In the result: Criminal Appeal No. 449/2010 (Prabhat Sinha Vs. State of C.G.) & Criminal Appeal No. 667/2010 (Sakib Chaudhary Vs. State of C.G.) are allowed. Conviction and sentence of the appellants under Sections 302/34 & 364 of the IPC are hereby set aside and they are acquitted of those charges. They are in custody since 02.04.2008. They be set at liberty forthwith if not required in any other case. Criminal Appeal No. 663/2010 (Babbi Singh @ Malkit Singh Vs. State of C.G.) is hereby partly allowed. Conviction and sentence of the appellant under Section 364 of the IPC are hereby set aside. They are in custody since 02.04.2008. They be set at liberty forthwith if not required in any other case. Criminal Appeal No. 663/2010 (Babbi Singh @ Malkit Singh Vs. State of C.G.) is hereby partly allowed. Conviction and sentence of the appellant under Section 364 of the IPC are hereby set aside. Conviction of the appellant under Section 302 of the IPC is hereby altered into Section 304 Part-1 of the IPC and instead of R.I. for Life, the appellant is sentenced to undergo R.I. for 10, He is in custody since 02.04.2008 and thereby he has completed about six years of sentence. He is entitled for the set-off for the period of detention already undergone.