JUDGMENT : Shree Chandrashekhar, J. Six persons were named as accused by Daleshwar Sao in his fardbeyan which was recorded on 25th February, 1991, on the basis of which a First Information Report vide Barkatha P.S. Case No.30 of 1991 was registered against the appellants, namely, Babun Singh, Baleshwar Singh, Nuneshwar Nayak, Laxman Sao, Bhola Sao and Tejo Sao for murder of Mosomat Mundrika, wife of the informant's brother. 2. The appellants have faced the trial on the charge under Section 302/34 IPC and they have been sentenced to undergo R.I. for life. The appellant, namely, Babun Singh has also been sentenced to fine of Rs.10000/-and the other convicts to fine of Rs.5000/-each. In default of payment of fine, the appellants are sentenced to further imprisonment of S.I. for one year. 3. During the trial, the prosecution has examined seven witnesses and on behalf of the accused persons, the village Sarpanch has been examined as DW.1. 4. The prosecution has projected the informant-PW.6 as an eye-witness. 5. The learned Sessions Judge has held that the prosecution has proved the charge under Section 302/34 IPC against the appellants and, accordingly, convicted them for the said offence. 6. The appellant no. 2, namely, Baleshwar Singh, the appellant no. 3, namely, Nuneshwar Nayak, the appellant no. 4, namely, Laxman Sao, the appellant no. 5, namely, Bhola Sao and the appellant no. 6, namely, Tejo Sao have been granted bail vide order dated 01.04.2002 and the appellant no. 1, namely, Babun Singh has been granted bail vide order dated 16.07.2002 by this Court. 7. Affidavit dated 19.07.2019 sworn by the Officer-in-Charge of Barkatha Police Station, District Hazaribagh has been filed. 8. Mrs. Vandana Bharti, learned Spl. P.P. submits that during pendency of this Criminal Appeal, the appellant No.1, namely, Babun Singh and the appellant No.4, namely, Laxman Sao, have passed away. 9. There is no application on behalf of the legal heirs and successors of the appellant No.1, namely Babun Singh, and the appellant No.4, namely, Lakshman Sao, for their substitution in their place and, accordingly, this Criminal Appeal qua the appellant No. 1, namely, Babun Singh, and qua the appellant No. 4, namely, Lakshman Sao has abated. 10. The informant is the elder brother-in-law of the deceased, namely, Mosomat Mundrika. He has lodged the First Information Report on the basis of the information given to him by Bhuneshwar Sao, son of the deceased. 10. The informant is the elder brother-in-law of the deceased, namely, Mosomat Mundrika. He has lodged the First Information Report on the basis of the information given to him by Bhuneshwar Sao, son of the deceased. In his fardbeyan, the informant has stated that on 25th February, 1991, Mosomat Mundrika, his sister-in-law, had gone to the forest for grazing cattle. With her, her son, namely, Bhuneshwar Sao, had also gone there. The informant has alleged that on suspicion of his sister-in-law being a witch, his co-villagers, the appellants, have killed her. In the Court, the informant has proved his writing on the fardbeyan. He has stated that his sister-in-law and her son Bhuneshwar Sao had left home with the cattle. They had gone to Bhalagarh forest for grazing cattle. He says that Baleshwar Sao informed him that the appellants, namely, Babun Singh, Baleshwar Singh, Nuneshwar Nayak, Laxman Sao, Bhola Sao and Tejo Sao, thrashed his mother on the ground and the appellant, namely, Babun Singh struck knife blow on the neck of his mother. 11. The prosecution witnesses, namely, Jitan Sao-PW.2 and Kedar Sao-PW.3 both have stated that they have not heard anything about the death of the deceased. PW.4, PW.5 and PW.7 are also hearsay witnesses. 12. Bhuneshwar Sao-PW.6, the only eye-witness of the occurrence, has supported the prosecution's case. He has named all the appellants who, according to him, were present at the place of occurrence. In his examination-in-chief, he has made a specific allegation of assault upon his mother by Babun Singh by knife on her neck. He has also alleged that the other appellants have thrown her mother on the ground. This witness has admitted in his cross-examination that at the time of the occurrence he was aged about 12 years. It may be of some relevance to record that the incident has happened in the year 1991 and the evidence of this witness was recorded on 10.12.1999. At the time when his evidence was recorded, he was aged about 17 years. The defence has tested the veracity of his evidence presumably suggesting that after so many years he cannot give a graphic description of the incident, by posing a question regarding his age which is answered by him in paragraph no.4 of his cross-examination. 13. At the time when his evidence was recorded, he was aged about 17 years. The defence has tested the veracity of his evidence presumably suggesting that after so many years he cannot give a graphic description of the incident, by posing a question regarding his age which is answered by him in paragraph no.4 of his cross-examination. 13. PW-6 admits that near the place of occurrence, there is a a field of Dihari Nayak and village Digwar is also nearby, just 200 yards away from the place of occurrence. He has also admitted that there are several grazing fields in the forest. The suggestion given to PW.6 doubts the veracity of his evidence also on the ground that no other eye-witness has been produced by prosecution during the trial; it was a broad-day light, about 12:00 a.m. noon, when according to PW-6 the occurrence has taken place. 14. Sri H.K. Shikarwar, learned counsel and Mr. Amrendra Pradhan, learned Amicus, appearing for the appellants submit that the prosecution has not examined the doctor who has conducted the postmortem examination over the dead body of Mosomat Mundrika, the postmortem examination report has not been tendered in evidence, the Investigating Officer has not been examined during the trial and no independent witness has been produced by the prosecution during the trial. 15. The accused persons have examined one witness, namely, Saryu Modi, as the defence witness. From the evidence of DW.1, it would appear that the defence has suggested that Mosomat Mundrika has been killed by Lakarbagha (wolf). 16. In view of the defence story, we are of the opinion that non-examination of the Investigating Officer and absence of any evidence suggesting homicidal death of Mosomat Mundrika have caused prejudice to the appellants. They have been deprived of an opportunity to elicit the nature of injuries, the place of occurrence, the mistakes committed during the investigation, etc. from the Investigating Officer and the Doctor who has conducted the postmortem examination. 17. Besides the above, evidence of PW.6 is almost cryptic; it is bereft of necessary details of the occurrence. The examination-in-chief of PW.6 is confined within three sentences. The appellants have been convicted under Section 302/34 IPC for causing death of Mosomat Mundrika. from the Investigating Officer and the Doctor who has conducted the postmortem examination. 17. Besides the above, evidence of PW.6 is almost cryptic; it is bereft of necessary details of the occurrence. The examination-in-chief of PW.6 is confined within three sentences. The appellants have been convicted under Section 302/34 IPC for causing death of Mosomat Mundrika. We find that while PW.6 has made specific allegation of assault upon his mother by Babun Singh on her neck with Chhura, he has made general allegation of throwing his mother on the ground against the other appellants. The other appellants have been roped in for the murder of Mosomat Mundrika with the aid of Section 34 IPC. 18. The opening words of Section 34 IPC are; “when a criminal act is done by several persons in furtherance of the common intention of all”. Section 34 IPC in itself is not a substantive offence, however, it makes other persons vicariously liable for the act of a co-accused. To rope in other accused persons who may not have participated actively in the occurrence, the prosecution must prove that the offending act has been done in furtherance of the common intention of all or that it was known to them that such act would be committed in furtherance of the common intention. The appellant, namely, Babun Singh was carrying a knife was known to other appellants, has not been proved by the prosecution. At the point when the appellants have allegedly thrown Mosomat Mundrika on the ground, it cannot be inferred that they have done so in furtherance of their common intention to kill Mosomat Mundrika. Therefore, from the evidences produced by the prosecution particularly through PW.6 it cannot be concluded that the appellants have shared common intention with Babun Singh to cause death of Mosomat Mundrika. Moreover, the testimony of PW.6 which is clouded with suspicion cannot form foundation for conviction of the surviving appellants under section 302/34 IPC. 19. In the end, we are of the opinion that the surviving appellants are entitled for the benefit of doubt and, therefore, their conviction under Section 302/34 IPC is set aside. 20. They are acquitted of the charge under Section 302/34 IPC framed against them. The surviving appellants, namely, Baleshwar Singh, Nuneshwar Nayak, Bhola Sao and Tejo Sao, who are on bail, stand discharged of liability of the bail bonds furnished by them. 21. Cr. 20. They are acquitted of the charge under Section 302/34 IPC framed against them. The surviving appellants, namely, Baleshwar Singh, Nuneshwar Nayak, Bhola Sao and Tejo Sao, who are on bail, stand discharged of liability of the bail bonds furnished by them. 21. Cr. Appeal (DB) No.520 of 2001 is allowed. 22. The Secretary, Jharkhand High Court Legal Services Authority, Ranchi shall reimburse the learned Amicus on submission of the bill(s). He shall be paid Rs.5500/-for each effective date, but subject to the cap as per the notification dated 23.11.2017. 23. Let lower court records be transmitted to the court concerned, forthwith. Appeal allowed.