JUDGMENT Hon’ble Shashi Kant Gupta, J.—This criminal appeal arises out of the judgment and order dated 12.3.1984 passed by the VIth Additional Sessions Judge, Kanpur in Sessions Trial No. 368 of 1983 whereby the Appellant was convicted and sentenced to undergo imprisonment for life for offences under Section 302 IPC read with Section 34 IPC. 2. Background facts in a nutshell are as follows: 3. Prem Singh and Ram Dayal Singh, first informant were sitting in the Verandah of the house on 17.5.1983. At about 10 p.m., the accused Mahesh Kahar and Brij Mohan alias Balli alongwith one Satya Narain, who is absconding, reached at the house with a motor cycle and enquired whether Vijai Singh is present. Prem Singh and Ram Dayal Singh told them that Vijai Singh is in the room. At this, both the accused alongwith Satya Narain went in the room of Vijai Singh on the first floor and started talking to Vijai Singh. Satya Narain asked Vijai Singh as to why he has not brought Km. Aruna. At this, Vijai Singh replied that he has no concern with Km. Aruna. The accused Satya Narain threatened him and stood up with anger. At this Vijai Singh said that he knows all misdeeds of him and will see him. Thereafter Satya Narain fired two shots from a pistol towards Vijai Singh which resulted into the death of Vijay Singh. After Vijai Singh died, Satya Narain and two accused fled away on that motor cycle threatening other occupants of the house. Prem Singh and Ram Dayal Singh tried to chase them, but could not catch hold of them. It is alleged that the incident was witnessed by the said witnesses in the light of the electric bulb. 4. After the incident, a written report Ex. Ka 1 of this incident was got written by Ram Dayal Singh, the neighbour of the deceased. 5. The said report was taken by him to the police station Babupurwa and was given there. On the basis of this written report, chik report Ex. Ka 8 was prepared by Satya Prakash Pandey, Constable Clerk P.W. 5 on 18.5.1983 at 00.15 a.m. He registered a case at that time in the G.D. Ex. Ka 9. 5. The investigation of the case was carried out by Sri Manni Lal Tiwari, S.I. P.W. 6. On the basis of this written report, chik report Ex. Ka 8 was prepared by Satya Prakash Pandey, Constable Clerk P.W. 5 on 18.5.1983 at 00.15 a.m. He registered a case at that time in the G.D. Ex. Ka 9. 5. The investigation of the case was carried out by Sri Manni Lal Tiwari, S.I. P.W. 6. He immediately took up the investigation and recorded the statement of the scribe of the chik report Dayaram Tiwari, P.W. 1 and G.D. Then he went to the place of the incident and recorded the statement of Ram Dayal Singh, first informant, Pratap Narain Singh and other witnesses. He thereafter inspected the spot and prepared site plan Ex. Ka 10 of the place of incident. He found one empty cartridge Ex. IV at the spot. He put it in a sealed cover vide memo Ex. Ka 4. He found blood on the beddings and took in possession blood stained Gadda, pillow and strings of cot Ex. I to III and put them in sealed cover vide memo Ex. Ka 5. There was also blood on the floor. He took in possession simple and blood stained floor Ex. V and VI vide memo Ex. Ka 2 and 3. Thereafter he examined the dead body of the deceased and got prepared its inquest report. 6. Panchayatnama is Ex. Ka. 6, diagram of the dead body is Ex. Ka 12 and letter for post-mortem examination is Ex. Ka 13. The dead body was sealed and was sent for post-mortem Ex. Ka 11 through Bara Lal, Constable, P.W. 3, alongwith documents. Thereafter he recorded the statements of other witnesses. On 19.5.1983, the Investigating Officer recorded the statement of Prem Singh P.W. 4. The accused appeared in the Court on 25.5.1983. They were interrogated on 2.6.1983. The remaining investigation was done by R.N. Tiwari, Inspector, who submitted the charge-sheet Ex. Ka 14 against the accused. 7. All the recovered articles Ex. I to V and clothes of the deceased were sent for chemical examination and human blood was found on them according to report Ex. Ka 15 and Ka 16. 8. The post-mortem examination of the deceased, Vijai Singh was done by Dr. Anupam Dayal, P.W. 2 on 18.5.1983 on 3.45 p.m. He prepared port-mortem report Ex. Ka 7. According to this report, the deceased was aged about 24 years and died one day before. Ka 15 and Ka 16. 8. The post-mortem examination of the deceased, Vijai Singh was done by Dr. Anupam Dayal, P.W. 2 on 18.5.1983 on 3.45 p.m. He prepared port-mortem report Ex. Ka 7. According to this report, the deceased was aged about 24 years and died one day before. He was average built. Rigor mortis was present on upper limb and passed for lower limb. The following ante-mortem injuries were found on his person : (1) Gun shot wound of entry 1/2 cm x 1/2 cm situated 4 cm above from the right ear on the right side of head, edges inverted. Signed hairs present around the wound. (2) Gun shot wound of exit 4 cm x 4 cm on the left side of the forehead and face. Eye ball is not present in the socket. Margins are everted. 9. The doctor found, on internal examination, fracture of right parietal bone under injury No. 1 and fracture of left side of frontal bone under injury No. 2. Membranes were lacerated and congested and clotted blood was present. Brain was lacerated on the left side. There was also fracture of the back of the skull. There were four ounces of semi digested food material in the stomach. Small intestine were half full with gases and big intestines were half full with gases and fecal matter. The death was caused due to shock and haemorrhage as a result of gun shot injuries sustained. 10. The accused persons pleaded not guilty and stated that they have been falsely implicated in the case due to enmity. Accused Mahesh Kahar has stated that his sister is married to Satyadeo whose real brothers are Satya Narain and Azad. There was a dispute between Satyadeo and Azad. The sister of deceased Vijai Singh has been married to Azad and he has been falsely implicated at the instance of Azad. Accused Brij Mohan alias Balli has stated that he is living in front of the house of accused Mahesh Kahar, who is his friend and, therefore, he was falsely implicated. The accused persons have not produced any witness in defence. 11. The prosecution in support of its case besides formal witnesses has examined Prem Singh, P.W. 4 as eye-witness regarding the commission of the alleged incident. He has supported the case of the prosecution as narrated above. The accused persons have not produced any witness in defence. 11. The prosecution in support of its case besides formal witnesses has examined Prem Singh, P.W. 4 as eye-witness regarding the commission of the alleged incident. He has supported the case of the prosecution as narrated above. No other witness of fact qua incident has been examined by the prosecution. Ram Dayal Singh, first informant, P.W. 1 died during the course of trial and therefore could not be examined. 12. Prem Singh, P.W. 4 has stated that Satya Narain asked Vijai Singh as to why he has not brought Aruna with him. To this, Vijay Singh retorted back saying that why he would bring Aruna. Heated exchange of words between them was followed by a quarrel. 13. It is contended by the learned counsel for the appellant that the F.I.R. in this case was not proved. It is further contended that the FIR was ante-timed and actually was written sometime in the morning of 18.5.1983 and therefore, it has no corroborative value. The F.I.R. of the case was lodged by Ram Dayal Singh, neighbour of the deceased. The informant died during the trial, as such, he was not examined and the FIR was proved through secondary evidence of Daya Ram Tewari and Prem Singh, P.W 1 and P.W. 4 respectively. 14. The prosecution examined Daya Ram Tiwari P.W. 1, the scribe of the F.I.R. Ext. Ka 1. He has admitted that the F.I.R. Ex. Ka 1 is written by him but has stated that it was written by him at the dictation of the Investigating Officer and not at the dictation of Ram Dayal Singh. He was declared hostile by the prosecution. Satya Narain Pandey, Constable P.W. 5 has stated that this F.I.R. Ex. Ka 1 was brought by Ram Dayal Singh at the police station. He has proved the chik report Ex. Ka 8 which is true copy of the above F.I.R. Ex. Ka 1. 15. Heard Sri Ajatshatru Pandey, learned counsel for the appellant, Sri Ram Yash Pandey, Sri Rajeev Gupta, Sri S.N. Tripathi, Sri Rahul Asthana, Sri V.P. Tripathi, Sri Pradeep Pandey, Sri Ram Sagar Yadav and Sri Uma Kant Mishra, learned A.G.A. and perused the material available on record. 16. According to the prosecution, the incident took place at about 10. p.m. in the room of Vijay Singh. It is alleged that at about 10. 16. According to the prosecution, the incident took place at about 10. p.m. in the room of Vijay Singh. It is alleged that at about 10. p.m. the accused Mahesh alongwith Brijmohan alias Balli (hereinafter referred to as ‘Balli’, who has been acquitted by the Court below) and Satya Naryan (who is absconding) reached at the house of the deceased and enquired from Prem Singh (uncle of the deceased) and Ram Dayal Singh (neighbour of the deceased) whether Vijay Singh is present. They told them that Vijay Singh is in the room. Then all the accused went into the room of Vijay Singh situated at the first floor and started talking to the deceased Vijay Singh. The accused Satya Narayan asked the deceased as to why he had not brought Km. Aruna. On this the deceased Vijay Singh retorted back saying that why would he bring her. At this, the accused Satya Narayan stated that I have told so many times to you and your grand father Narayan Singh to bring her otherwise you will suffer a lot. On hearing this, deceased Vijay Singh retorted back saying that nobody can do anything to him and I will finish you as I know all your misdeeds. On this Satya Narayan retaliated by saying that today I am going to settle the score and took out a country-made pistol and fired two shots at him which resulted into his death at the spot. After Vijay Singh died, all the three accused went away on their motor cycle threatening the other occupants of the house who tried to chase them. Prem Singh (uncle of the deceased) and Ram Dayal Singh (neighbour of the deceased) tried chase out them but could not catch them. It was alleged by them that they have seen the incident in the light of the electric bulbs. 17. The aforesaid facts shows that during the course of conversation between the deceased and the accused Satya Narayan, there was heated exchange of words between the accused Satya Narayan and the deceased Vijay Singh followed by a quarrel upon which in the heat of passion and anger, the accused Satya Narayan took out his country made pistol and fired upon the deceased causing his instant death. No role whatsoever has been assigned to the accused appellant Mahesh Kahar or Balli either in the FIR or in the statement of the sole eye-witness P.W. 4, Prem Singh (uncle of the deceased). Only allegation against the appellant Mahesh Kahar is that he alongwith co-accused Balli had accompanied the main accused Satya Narayan to the house of the deceased Vijay Singh and they were present at the time of the incident. 18. In fact the appellant Mahesh and the co-accused Balli were the merely passive onlooker and no role was attributed to them either of exhortation or catching hold of the deceased but still charges were framed against them under Section 302 IPC with the aid of Section 34 IPC. 19. It is also notable that the statement of P.W.1 Dayaram Tiwari, who was the scribe of the FIR, creates a serious dent in the prosecution version. It may be further noticed that Ram Dayal Singh, the alleged first informant was merely a neighbour of the deceased Vijay Singh and was not related to the deceased in any way lodged the FIR although according to the prosecution the real uncle of the deceased Prem Singh was present at the spot at the time of the occurrence did not lodge any FIR or accompanied the scribe Dayaram Tiwari to the police station to lodge the FIR. It is also pertinent to observe that although the police arrived at the spot after the registration of the FIR at 12 p.m. and recorded the statement of the relevant persons but still the statement of the eye-witness P.W. 4 Prem Singh who was allegedly present on the spot was not recorded under Section 161 CrPC on the date of occurrence but was recorded after two days i.e. on 19.5.1983. Non registration of the FIR at the instance of P.W. 4 Prem Singh and delay in recording of the statement under Section 161 CrPC give credence to the argument of the defence that he was not residing at Kanpur at the relevant time but at Lucknow and therefore was not present at the spot at the time of occurrence. The Investigating Officer in his testimony has admitted that he met Prem Singh, P.W. 4 on 18.5.1983 at Kanpur but did not record his (Prem Singh) statement. The Investigating Officer in his testimony has admitted that he met Prem Singh, P.W. 4 on 18.5.1983 at Kanpur but did not record his (Prem Singh) statement. No justification or reason has been recorded by him as to why he did not record his statement even on the very next day when he allegedly met him as he was one of the main eye-witness of the alleged scene. In his cross-examination, the Investigating Officer could not say as to whether P.W. 4 Prem Singh was present at Kanpur or Luknow on 18.5.1983 though earlier he had stated that he had met P.W. 4 Prem Singh on 18.5.1983 at Kanpur. This inconsistency and contradiction in the statement of the Investigating Officer also creates doubt with regard to the presence of the eye-witness P.W. 4 Prem Singh at the scene of occurrence. 20. It may also be observed that although P.W. 4 Prem Singh has stated that he got his ration card made from the residential address of his brother at Kanpur around 2-3 years ago but no such ration card was produced by him and moreover he had stated that he and his brother had a common ration card containing five units. Deceased brother’s family consists of 4 children and his wife. P.W. 4 further stated that he does not know the name of the ration shop dealer. The aforesaid evidnce of the P.W. 4 creates doubt about the existence of any ration card in his name from Kanpur and also creates doubt that he was living with deceased at Kanpur and not at Lucknow. 21. The main argument of the learned counsel for the appellant is that the appellant Mahesh Kahar cannot be convicted under Section 302 IPC with the aid of Section 34 IPC. First of all, no role has been given to the appellant of firing or inflicting any injury upon the deceased and the role has been assigned only to the co-accused Satya Narayan of firing on the deceased causing his death. Secondly, no overt act whatsoever has been attributed to him. Neither he has been assigned any role of catching hold or exhortation or causing any injury to the deceased. Only allegation has been made against him that he and Balli (who has already been acquitted) accompanied Satya Narayan to the place of the victim. 22. Secondly, no overt act whatsoever has been attributed to him. Neither he has been assigned any role of catching hold or exhortation or causing any injury to the deceased. Only allegation has been made against him that he and Balli (who has already been acquitted) accompanied Satya Narayan to the place of the victim. 22. Now the question which crops up for determination by this Court is whether in the above circumstances, the appellant can be convicted under Section 302 IPC read with Section 34 IPC. There is nothing on record to show that there was any common intention or the act was done after meeting of mind or the appellant was sharing any common intention within the meaning of Section 34 IPC. Common intention within the meaning of the section implied a pre-arranged plan and the criminal act was done pursuant to the pre-arranged plan although the said plan may develop on the spot during the course of the commission of the offence but the said plan must precede the act constituting the offence and the Court Court can before convicting a person under Section 302 IPC read with Section 34 IPC should come to a definite conclusion that the said person had prior concert with one or more other persons named or unnamed for committing the said offence but here in the present matter there is no such ingredient. 23. In the present case, it may also be observed that the facts and circumstances show that initially there was no intention of the co-accused Satya Narayan of causing any death of the deceased Vijay Singh. It appears that upon heated exchange between the parties co-accused Satya Narayan in the heat of passion fired upon Vijay Singh causing his death. The act of accused Satya Narayan does not show that the co-accused were also sharing any intention with the accused of causing any fatal injury. In fact the accused Mahesh Kahar and Balli, who was already acquitted, were not even carrying any weapon with them either lethal or non-lethal. 24. The act of accused Satya Narayan does not show that the co-accused were also sharing any intention with the accused of causing any fatal injury. In fact the accused Mahesh Kahar and Balli, who was already acquitted, were not even carrying any weapon with them either lethal or non-lethal. 24. Facts and circumstances clearly establishes that the act of firing upon the deceased Vijay Singh was an independent act of the co-accused Satya Narayan and the intention of causing death of the deceased Vijay Singh was not shared by the appellant Mahesh Kahar, as such, by no stretch of imagination Section 34 IPC can be taken into aid to convict the appellant under Section 34 IPC. It is also notable that the appellant Mahesh Kahar and Balli (who was already acquitted by the Court below) have been assigned identical role but merely because Mahesh Kahar was related to the main accused Satya Narayan, he was convicted. We do not see any justification in convicting the appellant Mahesh Kahar with the aid of Section 34 IPC merely because he was a relative of Satya Narayan. In the present case, obviously the case of the appellant Mahesh Kahar does not fall within the four corners of Section 34 IPC. Other co-accused Balli who played an identical role with the appellant was acquitted by the Court below. The entire approach of the Court below invoking Section 34 IPC is misconceived. Moreover, the conviction of the appellant Mahesh Kahar under Section 302 IPC with the aid of Section 34 IPC has been made merely on the testimony of solitary witness P.W. 4 Prem Singh whose presence at the spot was itself doubtful as discussed above. Moreover, the scribe of the FIR P.W. 1, Dayaram Tiwari who was declared hostile has stated that the FIR was dictated by Daroga Ji (Sub-Inspector) and not the first informant Ram Dayal Singh who died during the course of trial before the FIR could be proved in the Court by him. 25. It is notable that if the alleged eye-witnesses were in a different room/different place then how did they hear the conversation between the accused and the deceased. When they themselves are saying that their attention went to the room only when they heard the firearm shot then how did they heard all the conversation. There is also no clear motive established for the accused appellant. When they themselves are saying that their attention went to the room only when they heard the firearm shot then how did they heard all the conversation. There is also no clear motive established for the accused appellant. Apart from it there is no mention about the direct involvement of the accused appellant in the perpetration of crime. 26. It was stated by P.W. 4 Prem Singh that he already knew Mahesh Kahar but in his testimony he stated that he didn’t know his neighbours that too in a town like Kanpur. It is quite strange that the PW 4 has very little information about his neighbours whereas, on the contrary, he has seen the accused appellant Mahesh Kahar beforehand and he knows about him because he has seen him 2-3 years back in Lucknow whereas he has stated in his testimony that he was not living in Lucknow and had left his job 10 years back. 27. The prosecution witness talk of two fire shots whereas only one cartridge was recovered from the crime scene. The post-mortem report also doesn’t state anything about two gunshots. When it is stated that the colony where the crime happened is densely populated and also that people saw the three accused running away then why is there no other person for e.g. neighbour etc. to testify for the crime. 28. The contention of Prem Singh that he left his job in Lucknow because he was suffering form blood pressure also seems to be untenable. It is also notable that only Prem Singh P.W. 4 was examined as a witness when there must have been many other witnesses. Also when the other co accused Brijmohan @ Balli is acquitted on the same set of facts it seems illogical to convict Mahesh of life imprisonment. 29. The record further shows that there is material contradiction between the ocular version and the medical evidence. The Medical Officer Dr. Anupam Dayal P.W. 2 who conducted the post-mortem of the deceased Vijay Singh has deposed that only one fire arm injury was caused to the deceased. The post-mortem report also shows that only one fire was shot resulting into one entry and one exit wounds. On the other hand the alleged eye-witness Prem Singh, P.W. 4 has stated that two shots were fired, as such, there is material contradiction between the medical evidence and the ocular version. The post-mortem report also shows that only one fire was shot resulting into one entry and one exit wounds. On the other hand the alleged eye-witness Prem Singh, P.W. 4 has stated that two shots were fired, as such, there is material contradiction between the medical evidence and the ocular version. It is also notable that when the alleged incident occurred the alleged eye-witness Prem Singh, P.W. 4 and Daya Ram Tiwari were sitting together in the Verandah, as such, the alleged eye-witness Prem Singh, P.W. 4 could not have witnessed the alleged incident/scene. 30. The aforesaid testimony of P.W. 4 Prem Singh does not inspire confidence. Presence of P.W. 4 at the spot appears to be highly doubtful. The conduct of this witness is most unnatural and against the normal human conduct. His testimony does not appear to be reliable. The prosecution version is not free from doubts and the allegations seems on the weakest wicket. 31. Considering the facts and circumstances of the case, we are of the considered opinion that the view taken by the Court below while convicting the appellant Mahesh Kahar is palpably wrong and the findings recorded by the Court below are perverse, erroneous and cannot stand the scrutiny of law. The judgment passed by the trial Court is based on a complete misreading of the case and misconception of the legal position relevant to the matter and has not considered the evidence on record in right perspective. The prosecution has not been able to prove the case beyond doubt. In our considered opinion the reasons given by the Trial Court are not sufficient to convict the appellants. 32. In the facts and circumstances of the case and the evidence led by the parties renders the origin and genesis of the occurrence doubtful and as such the appellant Mahesh Kahar is entitled to benefit of doubt and acquittal. 33. The appeal having merit is liable to be allowed. 34. On the basis of aforesaid discussion in our considered opinion, the conviction of the appellant namely Mahesh Kahar cannot be sustained and is liable to be set-aside and in the circumstances of the case, the appellant deserved acquittal. 35. Consequently, the appeal is allowed. 36. 33. The appeal having merit is liable to be allowed. 34. On the basis of aforesaid discussion in our considered opinion, the conviction of the appellant namely Mahesh Kahar cannot be sustained and is liable to be set-aside and in the circumstances of the case, the appellant deserved acquittal. 35. Consequently, the appeal is allowed. 36. The impugned judgment and order dated 12.3.1984 passed by the VI Additional Sessions Judge, Kanpur in Sessions Trial No. 368 of 1983 is set-aside and the appellant namely Mahesh Kahar is acquitted of the charges levelled against him and his conviction and sentence are hereby quashed and set-aside. The appellant Mahesh Kahar is on bail. He need not to surrender. His personal and surety bonds are hereby cancelled and sureties are discharged from their liability. 37. Let a copy of this judgment alongwith the trial Court record be sent to the Court concerned for compliance.