JUDGMENT : B.K. Narayana, J. 1. Heard Sri K.M. Mishra, learned counsel for the appellants, Sri Saghir Ahmad, learned AGA and Smt. Manju Thakur, brief holder of the State. 2. This appeal has been filed by the accused appellants Girja Shanker A-1 and Ashok A-2 against the judgment and order dated 17.11.1989 passed by Ist Additional Sessions Judge, Etawah in S.T. No. 214 of 1988 (State v. Ashok and another) under Section 302/34 IPC, P.S. Bakewar District Etawah by which both the appellants were convicted and sentenced to undergo rigorous imprisonment for life under Section 302/34 IPC. 3. Record of this appeal shows that Ashok A-2 in his appeal has died. This appeal already stands dismissed as abated qua Ashok A-2 by order dated 11.04.2017. 4. Briefly stated the facts of this case are that the written report Ext. Ka-1 was lodged by PW-4 Ram Swarup on 30.06.1988 at 5.10 p.m. against the appellants alleging that he was resident of village Nagle Kale, P.S. Bakewar, District Etawah. He had purchased a tractor bearing registration No. UHK 662 in the year 1986 in partnership with his brother Sri Ganga Prasad and Girja Shanker accused appellant No. 1. Although the tractor was in the possession of the complainant Ram Swarup but accused-appellant Girja Shanker A-1 used to borrow the tractor from him and keep it for days and on account of which a heated argument had taken place between them, which had led Girija Shanker A-1 to become inimical towards the complainant. On 30.06.1988, the date of incident, the tractor was taken on hire by Sri Hari Lala for transporting stones to village Barukh. The tractor was driven by Braham Dutt son of Kamta Prasad r/o Atta, P.S. Phaphund, his sister's son while PW-4 Ram Swarup was sitting with him on the tractor. When the tractor was returning back to Lakhna after unloading the stones at village Barukh and reached near the road leading to Gautampura at about 3.00 p.m. both the accused appellant stopped the tractor and tried to forcibly possess the same, however when Braham Dutt resisted, deceased accused Ashok A-2 attacked Braham Dutt by a lever used for changing tyres. On hearing the hue and cry Sri Sahab Singh son of Ram Narain r/o Nagla Bani, Pradip Kumar son of Anand Madhav r/o of Matirampur, P.S. Bakewar and others arrived at the spot. On hearing the hue and cry Sri Sahab Singh son of Ram Narain r/o Nagla Bani, Pradip Kumar son of Anand Madhav r/o of Matirampur, P.S. Bakewar and others arrived at the spot. As a result of the injuries inflicted on him by Ashok A-2, Braham Dutt fell down on the ground but deceased accused Ashok continued to strike him with the lever. However, on being challenged by the witnesses accused-deceased Ashok A-2 and Girja Shanker A-1 decamped towards Maheva with the tractor. Braham Dutt died on the spot as a result of the injuries sustained by him in the occurrence. On the basis of the written report of the occurrence Ext.Ka-1 case crime No. 131 of 1988 under Section 302 IPC was registered against both the accused appellants at P.S. Bakewar, District Etawah, Check FIR Ext. Ka-3 and the G.D. entry Ext. Ka-4 were prepared by PW-3 Head Constable Krishna Bihari in the presence of PW-5 S.I. Ratan Singh who was entrusted with the investigation of the case. PW-5 Ratan Singh after noting down the copy of the check report, and G.D. entry in the case diary recorded the statement of Head Constable PW-3 Krishna Bihari at the police station and thereafter proceeded to the place of occurrence, conducted the inquest and prepared the inquest report Ext.Ka-5 along with the other related papers Ext.Ka-6, challan lash Ext. Ka-6, photo lash Ext.Ka-7, letter to C.M.O. and R.I., Ext.Ka-8. After the inquest the dead body of the deceased Braham Dutt was sealed in a bundle and handed over to Constable Ram Sajivan and Home Guard Har Narain Singh for taking the same to the hospital for conducting the post mortem. P.W.-5 Ratan Singh seized the tyre lever material Ext.Ka- 1, one pair of plastic shoes, material Ext.Ka-2, one blood stained angaucha material Ext.ka-3, blood stained and simple earth, material Ext. ka-4 and Ext.ka-5 from the place of occurrence in the presence of the witnesses, sealed the same in separate bundles and containers and prepared the recovery memo of the aforesaid articles Ext.ka-9. After completing the investigation he submitted charge sheet Ext. Ka-11 against the accused appellants on 30.06.1988, Investigating Officer sent the articles seized by him from the place of occurrence to the Chemical Examiner, Lko. for their analysis through Constable Devideen PW-6. The report of the chemical examiner is on record as Ext.ka-13. After completing the investigation he submitted charge sheet Ext. Ka-11 against the accused appellants on 30.06.1988, Investigating Officer sent the articles seized by him from the place of occurrence to the Chemical Examiner, Lko. for their analysis through Constable Devideen PW-6. The report of the chemical examiner is on record as Ext.ka-13. Registration certificate of the tractor UHK-662 of Ganga Prasad, PW-4 Ram Swarup and Girija Shanker accused was also brought on record as Ext. Ka-14. 5. PW-2 Dr. Prem Swarup conducted the autopsy of the dead body of the deceased Braham Dutt at the mortuary of District Hospital, Etawah on 01.07.1988 at 5.00 p.m. and prepared his post mortem report which is on record as Ext.ka-2. According to the post mortem report of the deceased the age of the deceased was about 25 years and he had died about one day ago. On an external examination the body of the deceased was found to be a young man of stout body build and rigor mortis had passed off from both upper extremities and present on both lower extremities. Abdomen was distended. Bloody fluid was coming out from the right ear and the eyes were closed. Following ante-mortem injuries were found on the dead body of Sri Brahm Dutta, deceased, namely : 1. Lacerated wond 1 cm x 1 cm x muscle deep on the right side of face, 3 cms in front of right ear. 2. Abraded contusion 6 cm x 3 cm on right side of face lower side 1 cm below and in front of right ear. 3. Contusion 4 cm x 2 cm on back of elbow of right hand. 4. Contused swelling 4 cm x 2 cm at the top of the left shoulder. 5. Contusion 8 cm x 6 cm on back of neck. 6. On an external examination, right temporal and right perietal bone of skull were found fractured. Membranes and brain were lacerated. Faceal matter and gases were present in the small intesties. Cause of death was due to shock and haemorrhage as a result of the ante-mortem injuries sustained. 7. 5. Contusion 8 cm x 6 cm on back of neck. 6. On an external examination, right temporal and right perietal bone of skull were found fractured. Membranes and brain were lacerated. Faceal matter and gases were present in the small intesties. Cause of death was due to shock and haemorrhage as a result of the ante-mortem injuries sustained. 7. Since the offence mentioned in the charge sheet were triable exclusively by the Court of Sessions, C.J.M. Etawah committed the case for trial of the accused to the Court of Sessions, Etawah where it was registered as S.T. No. 214 of 1988 and made over for trial to the Court of First Additional Sessions Judge, Etawah, who on the basis of the material collected during investigation and after hearing the accused on the point of charge, framed under Section 302/34 IPC against the accused to which accused pleaded not guilty and claimed trial. 8. The prosecution in order to prove its case examined as many as six witnesses including PW-1 Pradeep Kumar and PW-4 Ram Swarup as witness of fact while PW-2 Dr. Prem Swarup, PW-3 H.C. Krishna Bihari, PW-5 S.I. Ratan Singh, PW-6 Constable Devideen were produced as formal witnesses. 9. Learned First Additional Sessions Judge Etawah after the hearing the learned counsel for the parties and scrutinizing the evidence on record convicted both the accused-appellant under Section 302/34 IPC and awarded them aforesaid sentence. 10. Hence this appeal. 11. Since the appellant No. 2 Ashok died during the pendency of this appeal we are confining the consideration of this appeal qua the case of appellant No. 1 Girja Shankar alone. 12. Learned counsel for the appellant has neither challenged the time nor place or the manner of occurrence as spelt out in the FIR. However the involvement or complicity of Girja Shanker A-1 in the occurrence has been seriously disputed by learned counsel for the appellant. 13. 12. Learned counsel for the appellant has neither challenged the time nor place or the manner of occurrence as spelt out in the FIR. However the involvement or complicity of Girja Shanker A-1 in the occurrence has been seriously disputed by learned counsel for the appellant. 13. Sri K.M. Mishra, learned counsel for the appellant has submitted that there being no allegation against the appellant No. 1 in the written report, which was lodged by complainant Ram Swarup claiming himself to be the eye witness of the occurrence that Girija Shanker A-1 had either inflicted any injury on the deceased or exhorted deceased Ashok A-2 to kill the deceased Braham Dutt and the trial court having recorded a categorical finding on page 12 of the impugned judgment that Girija Shanker A-1 did not cause any injury to the deceased, his conviction, under Section 302 IPC recorded by the trial court with the aid of Section 34 of IPC merely on the ground of his being present at the place and time of occurrence and his being the co-owner of the tractor in the absence of any allegation or cogent evidence on record indicating that the criminal act which had caused the death of Braham Dutt was done by the appellants in furtherance of any common intention pursuant to a pre-arranged or prior concert cannot be sustained and is liable to be set aside. He next submitted that Girja Shanker A-1 was falsely implicated by PW-4 complainant Ram Swarup who is a close relative of the deceased with the mala fide intention of grabbing the tractor bearing registration No. UHK-662 which as per the prosecution case itself was purchased by PW-4 Ram Swarup in partnership with his brother Ganga Prasad and his relative (Samdhi) Girja Shanker son of Mata Prasad in the year 1986 in the hope of grabbing the same on Girja Shanker A-1 being convicted and sentenced to imprisonment for life on the basis of the false case and evidence fabricated by PW-4 Ram Swarup in collusion with PW-1 Pradip Kumar. He lastly submitted that such being the state of evidence the recorded conviction of the Girja Shanker A-1 and the sentence of imprisonment for life awarded to him by court below cannot be sustained and are liable to be set aside. 14. He lastly submitted that such being the state of evidence the recorded conviction of the Girja Shanker A-1 and the sentence of imprisonment for life awarded to him by court below cannot be sustained and are liable to be set aside. 14. Per contra Smt. Manju Thakur, learned counsel appearing for the State vehemently submitted that it is fully proved from the evidence of PW-1 Pradip Kumar and PW-4 Ram Swarup that the criminal act which had lead to the death of Braham Dutt was done by both the appellants in furtherance of common intention and notwithstanding the fact that Girja Shanker A-1 had not caused any injury to the deceased, he has rightly been convicted by the trial court under Section 302 IPC by applying Section 34 of the IPC. 15. Smt. Manju Thakur appearing for the State has further submitted that prosecution succeeded in proving by cogent evidence that the incident had taken place in the manner, at the time and place mentioned in the FIR as well as qua the identity of the perpetrators of the crime and the sentence of imprisonment for life awarded to the accused-appellant by the court below is supported by relevant considerations. The impugned judgment and order do not suffer from any illegality perversity or infirmity warranting any interference by this Court. This appeal lacks merit and is liable to be dismissed. 16. The main accused in this case Ashok A-2 who as per the prosecution case itself was the author of the solitary firearm injury found on the dead body of the deceased which had caused his death having died during the pendency of this appeal, the only question which arises for our consideration in this appeal is that whether on the basis of the facts and circumstances of the case and the evidence on record, the conviction of the surviving appellant No. 1 Girja Shanker under Section 302 IPC recorded by the trial court with the aid of Section 34 of the IPC can be maintained or not. 17. The written report Ext. Ka-1 of the occurrence was lodged by PW-4 Ram Swarup on 30.06.1982 at P.S. Bakewar District Etawah at 17.10 hours in respect of an incident which had taken place at about 3.00 p.m. on the same day. Perusal of the written report of the incident Ext. 17. The written report Ext. Ka-1 of the occurrence was lodged by PW-4 Ram Swarup on 30.06.1982 at P.S. Bakewar District Etawah at 17.10 hours in respect of an incident which had taken place at about 3.00 p.m. on the same day. Perusal of the written report of the incident Ext. Ka-1 which was lodged by PW-4 complainant Ram Swarup claiming himself to be an eye witness shows that there is no allegation whatsoever in the FIR that Girja Shanker A-1 had either exhorted the deceased Ashok A-2 to finish or kill Braham Dutt or that he was armed or had inflicted any injury on the deceased. The only allegation which has been made by the PW-4 complainant Ram Swarup in the written report against the Girja Shanker A-2 is that he along with the deceased Ashok A-2 had stopped the tractor near the road at Barukh while it was coming back to Lakhna after unloading the stones in village Barukh on 30.06.1988. In the written report it was further stated that there was previous enmity between PW-4 Ram Swarup and Girja Shanker A-1 over the possession of the tractor bearing registration number UHK-662 which had been purchased by Ram Swarup PW-1, his brother Ganga Prasad and his relative (samdhi) Girja Shanker A-1 and the murder of the deceased who was the sister's son (Bhanja) of PW-4 Ram Swarup and a relative of PW-1 Pradip Kumar was a fall out of the aforesaid enmity when on the fateful day the deceased, on being asked by the accused-appellants refused to part with the possession of the tractor and hand over the same to them on which deceased Ashok A-2 inflicted multiple injuries on the deceased by a tyre lever which caused his death and thereafter both the accused disappeared with the tractor. 18. PW-4 Ram Swarup, however in his testimony recorded before the trial court made a material improvement which was conspicuous by its absence in the FIR by testifying that while deceased Ashok A-2 was assaulting Braham Dutt with tyre lever Girja Shanker A- 1 started hitting him with kicks and fists and exhorted the deceased Ashok A-1 not to spare Braham Dutt. 19. 19. There is no explanation why the aforesaid fact was not stated by him in the FIR which clearly indicates that the statement made by him before the trial court that Girja Shanker A-1 had hit Braham Dutt with kicks and fists and exhorted the deceased Ashok A-1 not to spare him is clearly an after thought with the object ensuring the conviction of the Girja Shanker A-1 also along with the deceased Ashok A-2. 20. Similarly PW-1 Pradip Kumar in our opinion has also made a material improvement in his testimony by deposing that Girja Shankar had assaulted the deceased with fists and kicks while deceased Ashok A-2 was hitting him with tyre lever, although the aforesaid fact was not mentioned in the written report of the occurrence Ext. Ka-1 which was scribed by PW-1 Pradip Kumar himself on the dictation of PW-4 Ram Swarup and he also claimed himself to be a eye witness of the occurrence. 21. Thus upon a wholesome appraisal and critical analysis of facts and circumstances of the case and the testimonies of the two witnesses of fact produced by the prosecution during the trial PW-1 Pradip Kumar and PW- 4 Ram Swarup, we find that their evidence on the point of Girja Shanker A-1 having also attacked the deceased with kicks and fists while he was being beaten up by deceased Ashok A-2 by a tyre lever and he had exhorted A-2 not to spare the deceased is neither reliable nor trustworthy in view of the failure of PW-4 complainant Ram Swarup and PW-1 Pradip Kumar, who had scribed the written complaint of the occurrence on the dictation of PW-4 Ram Swarup to mention the aforesaid fact in the FIR although both of them claim to be the eye witness of the occurrence. 22. The Apex Court in Jai Bhagwan v. State of Haryana, AIR 1999 SC 1083 has held that in order to apply Section 34 IPC, 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. 22. The Apex Court in Jai Bhagwan v. State of Haryana, AIR 1999 SC 1083 has held that in order to apply Section 34 IPC, 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 involved vicarious liability but if participation of the accused in the crime is proved and common intention is absent, Section 34 can not be invoked. 23. After having evaluated or the evidence on record in the light of the legal principles enunciated by the Apex Court in the case of Jai Bhagwan (supra) and Ramashish Yadav (supra), we do not find firstly that the prosecution has been able to prove its case against the appellant Girja Shanker A-1 beyond all reasonable doubts. There is no allegation against him in the FIR which was lodged by PW-4 complainant an eye witness of the occurrence that Girja Shanker A-1 had assaulted or caused any injury to the deceased or had exhorted the deceased Ashok A-2 to kill Braham Dutt. The aforesaid omission on the part of the PW-4 complainant Ram Swarup is a material omission, which affect the core of the prosecution case qua Girja Shanker A-1 rendering it wholly untrustworthy and unreliable. Secondly the prosecution has miserably failed to establish the two factors which have to be proved before applying Section 34, common intention and participation of Girja Shanker A-1 in the commission of the offences. Thirdly there is no cogent evidence on record proving that there was any pre-arranged plan or any prior meeting of mind or pre-meditated concert. 24. In view of the foregoing discussion, we find that the trial court committed a patent error of law in convicting the appellant Girja Shanker A-1 under Section 302 IPC by taking aid of Section 34 IPC and awarding life sentence to him. 25. This appeal is accordingly allowed qua Girja Shanker A-1. Girja Shanker A-1 is acquittal of all the charges. The appellant is on bail. He need not surrender. His bail bonds are cancelled and sureties are discharged. Appellant Girja Shanker shall however comply with the provisions of Section 437A within one months. 26. 25. This appeal is accordingly allowed qua Girja Shanker A-1. Girja Shanker A-1 is acquittal of all the charges. The appellant is on bail. He need not surrender. His bail bonds are cancelled and sureties are discharged. Appellant Girja Shanker shall however comply with the provisions of Section 437A within one months. 26. The impugned judgment and order stands modified accordingly. 27. There shall however be no order as to costs. 28. Let a copy of this order be transmitted to the trial court for intimation and necessary follow up action.