ORDER : 1. Heard Sri Dharam Pal Singh, learned counsel for the appellants and Sri Sagir Ahmad, Sri J.K. Upadhyay, learned A.G.As assisted by Smt. Manju Thakur, brief holder for the State. 2. This appeal has been preferred by the appellants Sultan Khan (A1), Irfan Khan (A2) and Irshad Khan (A3) against the judgement and order dated 18.05.1990 passed by XIV Additional District & Sessions Judge, Moradabad in S.T. No. 105 of 1990 (State v. Sultan Khan & 2 Others), by which the appellants were convicted and sentenced to imprisonment for life and a fine of Rs. 2000/each and in default of payment of fine 6, months additional R.I. under Sections 302/34 I.P.C. and 6 months R.I. under Section 504 I.P.C. 3. Both the sentences were directed to run concurrently. 4. Record shows that Sultan Khan (A1) has died about 20 years before and this appeal has already been abated qua - appellant no. 1, Sultan Khan by order dated 28.2.2017. 5. Briefly stated the facts of this case are that PW1 Faiyaz Khan made an oral report at police station Gajraula, district Moradabad on 17.10.1989 at about 19:10 hours which was reduced to writing and proved as Ext. Ka1 during the trial, alleging that he was resident of village Lisdai Buzurge. In the morning of 17.10.1989 while complainant and his son Meharban (deceased) were engaged with their agricultural work in their field, Imran, grandson of the complainant was playing with Furkan, son of accused Sultan Khan, while playing they started quarreling, on which Smt. Khusan Bano, wife of Meharban and Smt. Sanjida Begum, wife of Sultan Khan interceded but later they also started quarreling with each other. On hearing the noise in his field, the complainant and his son Meharban proceeded to their house. As soon as the complainant reached his house, Sultan Khan (A1) and Irshan Khan (A3) armed with lathi and Irfan Khan (A2) armed with country made pistol arrived there and started abusing the wife of Meharban and threatened to molest her. When Meharban tried to stop them from misbehaving with his wife, Sultan Khan (A1) dealt a lathi blow to Meharban on his head and Irshan Khan (A3) also tried to hit him with his lathi but his blow struck Sultan Khan (A1) on his head. Mehabran died on the spot. When Meharban tried to stop them from misbehaving with his wife, Sultan Khan (A1) dealt a lathi blow to Meharban on his head and Irshan Khan (A3) also tried to hit him with his lathi but his blow struck Sultan Khan (A1) on his head. Mehabran died on the spot. On hearing the noise the complainant's brother Mumtaz Khan alias Lal Khan and his nephew Naushay Khan also arrived at the place of incident. Without causing any injury to anyone Irfan Khan (A2) fired with his country made pistol in the air. On the basis of the oral report of PW1 Faiyaz Khan Case Crime no. 632 of 1989, under Sections 304/307 I.P.C. was registered against all the three appellants at police station Gajraula, district Moradabad. Chek F.I.R. (Ext. Ka1) and the relevant G.D. entry vide Rapat no. 37 dated 17.08.1989 at 19:10 hours (Ext.Ka6) were prepared by PW5 Head Constable Babu Ram. Soon after the registration of the case PW4 S.I. B.R. Saroj who was entrusted with the investigation of the aforesaid case, swung into action and reached the place of occurrence recorded the statements of the witnesses and prepared the site plan of the place of occurrence after inspecting the same. He conducted the inquest on the dead body of the deceased and prepared the inquest report and other papers and after sealing the dead body of the deceased Meharban, dispatched the same for conducting postmortem. The postmortem on the dead body of the deceased was conducted by PW3 Dr. S.K. Tyagi on 18.10.1989 at about 3:15 p.m. who also prepared his postmortem report and as proved the same as (Ext.Ka2). The postmortem report of the deceased indicated one antemortem injury which was described as lacerated wound 2.5cm x 1cm x bone deep on the left side of the head and in the opinion of PW3 the deceased had died as a result of Coma resulting from antemortem head injury. PW4 S.I. B.R. Saroj after completing the investigation submitted charge sheet against the accused under Section 302 I.P.C. before the Chief Judicial Magistrate, Moradabad. PW4 S.I. B.R. Saroj after completing the investigation submitted charge sheet against the accused under Section 302 I.P.C. before the Chief Judicial Magistrate, Moradabad. Since the offence mentioned in the charge sheet submitted against the accused was triable exclusively by the court of session, the Chief Judicial Magistrate, Moradabad committed the case for trial of the accused to the court of Sessions Judge, Moradabad, where the same was registered as S.T. No. 105 of 1990 (State v. Sultan Khan & 2 others) and made over for trial to the Court of XIV Addl. District & Sessions Judge, Moradabad. 6. On the basis of the material collected during investigation and after hearing the accused on the point of charge, learned XIV Addl. District & Sessions Judge, Moradabad framed charge under Sections 302/34 and 504 I.P.C. against all the appellants. The appellants pleaded not guilty and claimed trial. 7. The prosecution in order to prove its case against the accused examined following six witnesses : PW1 Complainant, Faiyaz Khan, who narrated the whole prosecution story and proved the F.I.R. (Ext.Ka1). PW2 Mumtaz Khan alias Lal Khan who fully corroborated the evidence of PW1 Faiyaz Khan on all material points. PW3 Dr. S.K. Tyagi, who had conducted the postmortem on the dead body of the deceased. PW4 S.I., B.R. Saroj who had investigated the case, in his evidence tendered during the trial disclosed the various steps taken by him during investigation. He proved the recovery memo (Ext.Ka3), inquest report (Ext.Ka4), copy of F.I.R. (Ext.Ka5), copy of G.D. (Ext.Ka6), specimen seal (Ext.Ka7), letter addressed to C.M.O. (Exr.Ka8), letter addressed to R.I. (Ext.Ka9), photolash (Ext.Ka10), police form no.13 (Ext.Ka11), site plan of the place of occurrence (Ext.Ka12) and charge sheet (Ext.Ka13). PW5 Head Constable Babu Ram proved the chek F.I.R. (Ext.Ka1) and copy of G.D. (Ext.Ka6). PW6 Ali Sher deposed that he along with Homeguard Shahid had brought the dead body of the deceased from the spot to the district head quarter for conducting the postmortem. 8. The appellants in their examination under Section 313 Cr.P.C. denied the prosecution case. Sultan Khan (A1) in reply to question no. 15 during his examination under Section 313 Cr.P.C. further stated that Meharban had inflicted a lathi blow on his head and he had retaliated in self defence by striking him with a lathi which caused injury on his head. The appellants in their examination under Section 313 Cr.P.C. denied the prosecution case. Sultan Khan (A1) in reply to question no. 15 during his examination under Section 313 Cr.P.C. further stated that Meharban had inflicted a lathi blow on his head and he had retaliated in self defence by striking him with a lathi which caused injury on his head. The police did not get his injuries examined and his injuries could be examined only after an order was passed by Chief Judicial Magistrate, Moradabad on his application moved in this regard before him. Dr. Mahavir Singh who had examined the injuries of Sultan Khan (A1) and prepared his injury report (Ext.Ka1) was examined as DW1. He proved the injury report of Sultan Khan (Ext.Ka1). 9. Learned XIV Addl. District & Sessions Judge, Moradabad after considering the submissions advanced before him by learned counsel for the parties and scrutinizing the evidence on record convicted all the appellants under Sections 302/34 and 504 I.P.C. and awarded aforesaid sentence to them. 10. Hence, this appeal. 11. Learned counsel for the appellants has submitted that even, if the entire prosecution case and the evidence led during trial is accepted to be true in its entirety, no cognisable offence against the appellant nos. 2 and 3 is disclosed. He next submitted that from the recital contains in the F.I.R. and the facts testified by the two witnesses of fact PW1 complainant Faiyaz Khan and PW2 Mumtaz Khan alias Lal Khan produced on behalf of the prosecution during trial for proving the prosecution case. It is crystal clear that the prosecution has assigned three different roles to each of three accused. Although the prosecution case is that the appellants had reached the place of occurrence and started abusing the wife of Meharban and threatened to molest her immediately before the occurrence, the solitary fatal lathi injury which caused the death of Meharban has been attributed to Sultan Khan (A1). The role assigned to (A3) Irshan Khan is that he also made an attempt to assault the deceased with his lathi but his blow hit Sultan Khan (A1) causing head injury to him, while the role of firing in the air from his fire arm has been attributed to (A2) Irfan Khan. The role assigned to (A3) Irshan Khan is that he also made an attempt to assault the deceased with his lathi but his blow hit Sultan Khan (A1) causing head injury to him, while the role of firing in the air from his fire arm has been attributed to (A2) Irfan Khan. He further submitted that there is absolutely no evidence on record indicating that criminal act which had caused the death of Meharban was done by the appellants in furtherance of a common intention of all and hence the conviction of (A2) Irfan Khan and (A3) Irshan Khan recorded by the trial court under Section 302 I.P.C. by invoking aid of section 34 is perse illegal and can not be maintained. 12. He also submitted that the witnesses of fact produced on behalf of the prosecution during the trial have deliberately given a twisted version of the occurrence by falsely alleging in the F.I.R. as well as in their testimonies that the lathi blow which had caused head injury to Sultan Khan (A1) at the hands of (A3) Irshan Khan was actually targeted at deceased Meharban on whom Sultan Khan (A1) had already inflicted a lathi blow, where as the correct fact is that the first lathi blow was struck on the head of Sultan Khan (A1) by the deceased Meharban himself and the lathi blow which caused head injury to the deceased was dealt to him by Sultan Khan (A1) in self defence. The fact that the local police was biased and siding with the complainant is obvious from the fact that the injuries which Sultan Khan (A1) had received in the same transaction were deliberately not got examined by the police and his injuries could be examined only after Chief Judicial Magistrate, Moradabad had on the application moved before him by Sultan Khan (A1) in this regard. 13. He next submitted that it is apparent that the prosecution has not approached with clean hands and the true genesis of the incident stands suppressed and an attempt has been made to crypt the injuries received by Sultan Khan (A1) at the hand of deceased Meharban to (A3) Irshan Khan. 13. He next submitted that it is apparent that the prosecution has not approached with clean hands and the true genesis of the incident stands suppressed and an attempt has been made to crypt the injuries received by Sultan Khan (A1) at the hand of deceased Meharban to (A3) Irshan Khan. He next submitted that both the witnesses examined on behalf of the prosecution are the close relatives of the deceased, being his father and uncle and hence highly interested in seeing the appellants convicted for having allegedly committed the murder of deceased Meharban and reliance placed by the trial court on their testimony for convicting the appellants is wholly unjustified. Such being the state of evidence the recorded conviction of the appellants A2 and A3 and the sentences awarded to them can not be sustained and are liable to be set aside. 14. Per contra, Sri Sagir Ahmad, learned A.G.A. has submitted that on the basis of the evidence on record, it is proved beyond all reasonable doubts that all the three appellants had arrived at the place of incident armed with deadly weapon with the common intention of committing the murder of Meharban. He next submitted that the medical evidence on record fully corroborates the ocular version. The incident had taken place at 5:00 P.M. on 17.10.1989 and the F.I.R. of the incident was lodged on the same day at about 19:10 hours. Considering the distance of 16 km. between the place of occurrence and the police station Gajraula and the time taken by the complainant in lodging the report of the occurrence, it can not be said that there was enough time for holding deliberations and discussions for falsely implicating the appellants, if the identity of the assailants was not known. The defence has miserably failed to prove the counter version of the occurrence as stated by Sultan Khan (A1) in his examination under Section 313 Cr.P.C. On the contrary it is fully proved from the evidence of prosecution witnesses that the lathi blow of (A3) Irshan Khan which was actually targeted at deceased Meharban accidently hit Sultan Khan (A1). The recorded conviction of the appellants and the sentence awarded to them are based upon cogent evidence and supported by relevant considerations warrant no interference by this Court. 15. The recorded conviction of the appellants and the sentence awarded to them are based upon cogent evidence and supported by relevant considerations warrant no interference by this Court. 15. We have very carefully heard learned counsel for the parties and scrutinized the entire evidence on record, both oral as well as documentary. 16. The time and the place of occurrence is admitted to both the sides. The prosecution case is that while PW1 complainant Faiyaz Khan and his son Meharban (deceased) were working in their field, Faiyaz Khan son of Sahwali Khan and Imran, grandson of PW1 Faiyaz Khan were playing. While playing they started quarreling, on which Smt. Khusan Bano, wife of Meharban and Smt. Sanjida Begum, wife of Sultan Khan intervened but they also started quarreling with each other. On hearing the noise made by them, PW1 Faiyaz Khan and his son Meharban reached their house. At that moment (A1) Sultan Khan and (A3) Irshan Khan armed with lathi and Irfan Khan (A2) armed with country made pistol also arrived there and started abusing Meharban's wife and threatened to molest her, Meharban asked them not to do so, on which Sultan Khan (A1) inflicted injury on the head of Meharban with his lathi while Irshan Khan (A3) also tried to assault Meharban with his lathi but his blow struck Sultan Khan (A1) on his head causing injury to him. Irfan Khan (A2) fired with his fire arm in the air. Meharban died on the spot. Upon hearing the noise complainant's brother PW2 Mumtaz Khan and his nephew Naushey Khan also arrived at the place of incident. 17. We have very carefully gone through the entire testimony of PW1 and PW2 but we have not come across anything in their evidence which may indicate that the incident was an outcome of a preoriented plan of the appellants to commit the murder of the deceased Meharban and they had acted in pursuance to the plan. The Apex Court in Jai Bhagwan v. State of Haryana, AIR 1999 SC 1083 has held that in order to apply Section 34, apart from the fact that there should be two or more accused, two factors must be established : (i) common intention, and (ii) participation of the accused in the commission of offence. The Apex Court in Jai Bhagwan v. State of Haryana, AIR 1999 SC 1083 has held that in order to apply Section 34, apart from the fact that there should be two or more accused, two factors must be established : (i) common intention, and (ii) participation of the accused in the commission of offence. If common intention is proved but no overt act is attributed to the individual accused, section 34 will be attracted as essentially it involves vicarious liability but if participation of the accused in the crime is proved and common intention is absent, section 34 can not be invoked. Similarly the Apex Court again in Ramashish Yadav v. State of Bihar, 1999 (8) SCC 555 has held that it requires a prearranged plan, presupposes prior concert, therefore, there must be prior meeting of mind. It can also be developed at the spur of moment but there must be prearrangement or premeditated concert : We now proceed to evaluate the oral evidence on record with a view to ascertain whether the trial court was justified in convicting the appellant (A2) Irfan Khan and (A3) Irshan Khan by invoking section 34 of the Indian Penal Code or not as admittedly the author of the fatal blow which caused the death of the deceased was (A1) Sultan Khan who has died during the pendency of this appeal before this Court and who had also received head injury in the incident. 18. PW1 complainant Faiyaz Khan has stated in the F.I.R. that after Sultan Khan (A1) had inflicted lathi injury on the head of his son Meharban, (A3) Irshan Khan had also assaulted his son with his lathi but his lathi blow had struck Sultan Khan (A1) on his head. 19. However, PW1 Faiyaz Khan in his examination-in-chief (on page 13 of the paper book) changed the version of the incident as spelt out by him in the F.I.R. by deposing that after Sultan Khan (A1) had hit his son Meharban on his head with his lathi, Irshan Khan (A3) assaulted PW1 Faiyaz Khan with his lathi but his lathi blow which was targeted at him, struck Sultan Khan on his head. Qua Irfan Khan (A2), PW1 deposed that he had fired with his fire arm but no one had received any gun shot injury. Qua Irfan Khan (A2), PW1 deposed that he had fired with his fire arm but no one had received any gun shot injury. It is noteworthy that PW1 did not depose that A2 had either fired at him or his son with the intention of causing their death. 20. Coming to the evidence of PW2 Mumtaz Khan, we find that although he in his examination-in-chief has corroborated the evidence of PW1 Faiyaz Khan on the point of deceased being struck by a lathi on his head by Sultan Khan (A1) but qua Irshan Khan (A3), he has merely deposed that Irshan Khan who was standing at some distance also swung his lathi which hit Sultan Khan on his head and when he asked the appellants to stop Irfan Khan (A2) fired with his fire arm but he was not hurt. 21. Thus, we find that the prosecution witnesses are not consistent on the point whether the lathi bolw of Irshan Khan (A3) was targeted at the deceased or the complainant or at Sultan Khan (A1). While on the other hand we have a counter version of the occurrence as narrated by Sultan Khan in his examination under Section 313 Cr.P.C., in which he has taken a plea of self defence and had described the deceased Meharban as aggressor. His injury report is on record as (Ext.Kha1) which has been proved by Dr. Mahaveer Singh (DWI) who had noted following injuries on the person of Sultan Khan : 1- Qvk ?kko x 2 cm x scalp rd xgjk nkfgus dku ls 10 cm lj ij nkfgus vkSj ?kko esa eokn iM+ x;k FkkA 2- lwtu 8 x 8 cm cka;h dykbZ ds ikl ck;s gkFk ij 1 gydk jax dykSap fy, FkkA 22. The injuries were opined to be simple in nature and injury no. 1 could have been caused by lathi blow and the second injury could have been caused by falling on the ground. 23. The injuries were opined to be simple in nature and injury no. 1 could have been caused by lathi blow and the second injury could have been caused by falling on the ground. 23. He has also deposed that it was possible that the injuries found on the person of Sultan Khan were caused on 17.01.1989 at about 5 P.M. Thus, in view of the inconsistency in the evidence of PW1 and PW2 with regard to the manner in which the alleged lathi blow of Irshan Khan (A3) had caused injury to Sultan Khan (A1) although his target was PW1 Faiyaz Khan or the deceased and there being no evidence on record indicating that (A2) Irfan Khan had shot either at the deceased or the complainant with the intention of causing death either of the deceased or the complainant and on the other hand it being proved from the evidence of PW1 and PW2 that his gun shot was not targeted at anyone and in the absence of any reliable or legally admissible evidence on record proving that there was prior concert or prior meeting of minds or prior intention, we do not find that the murder of Meharban was committed by the appellants in furtherance of a common intention. The lathi blow which caused the death of the deceased Meharban was a solitary act of Sultan Khan (A1) and the prosecution has failed to prove by any cogent evidence that appellant nos. 2 and 3 had done any act in furtherance of common intention of the co-accused Sultan Khan (A1). 24. Upon a wholesome appraisal and a critical analysis of the evidence on record, we do not find that the prosecution has been able to prove its case by any cogent or reliable evidence that the murder of deceased Meharban was committed by the appellants in furtherance of common intention of all. It is also admitted case of the prosecution that appellant no.2, Irfan Khan and appellant no.3 Irshan Khan had not caused any injury either to the deceased or the complainant. The explanation furnished by the prosecution for the injuries found on the person of Sultan Khan does not inspire confidence in view of the contradictions in the evidence of PW1 and PW2 on the aforesaid point. The explanation furnished by the prosecution for the injuries found on the person of Sultan Khan does not inspire confidence in view of the contradictions in the evidence of PW1 and PW2 on the aforesaid point. It is apparent that the prosecution has not approached with clean hands and the true genesis of the occurrence has been suppressed. The Investigating Officer had neither recovered any fire arm nor any empty cartridge from the place of occurrence and in view of the above, even if, we accept the prosecution case that the appellant no. 3 was present at the place of incident at the time of occurrence, in view of material inconsistencies in the evidence of PW1 Faiyaz Khan and PW2 Mumtaz Khan with regard to the manner in which the offence was allegedly committed their evidence on the point that applicant no. 3, Irshan Khan was either carrying any pistol with him or had fired in the air does not appear to be truthful or reliable. 25. In view of the foregoing discussion, the recorded conviction of the appellant nos. 2 and 3 under Sections 302/34 I.P.C. and the sentence of life imprisonment awarded to them by XIV Additional District & Sessions Judge, Moradabad vide impugned judgment and order dated 18.05.1990 passed in S.T. No. 105 of 1990 (State v. Sultan Khan & 2 Others) can not be sustained and are liable to be set aside. 26. Accordingly, this appeal is allowed. 27. Appellant no. 2, Ifran Khan and appellant no. 3, Irshan Khan are acquitted of all the charges. Appellants are on bail, they need not surrender. Their bail bonds are cancelled and their sureties discharged.