JUDGMENT : Per Shree Chandrashekhar, J. Three persons, namely, Rohan Mistry, Kedar Mistry and Shankar Mistry were named as assailants by the informant-Rambyas Singh in his fardbeyan which was recorded on 07.11.1995 at about 9:00 a.m, on the basis of which Barhi P.S. Case No. 136 of 1995 was registered against them under section 307/324/323/341/34 IPC. 2. In the course of treatment, on 11.11.1995 the injured Bajrang Singh died and, accordingly, offence under section 302 IPC was added in the report. 3. After the investigation, a charge-sheet was submitted against the above-named accused persons under section 302/307/324/326/323/341/34 IPC showing Shankar Mistry an absconder. The appellants, namely, Rohan Mistry and Kedar Mistry have faced the trial on the charges under section 302/34, 307/34 and 326 IPC. 4. During pendency of the criminal appeal, the appellant no. 1, namely, Rohan Mistry has passed away. Accordingly, this criminal appeal qua the appellant no. 1, namely, Rohan Mistry has abated. 5. During the trial, the prosecution has examined eleven witnesses; the informant-Rambyas Singh is P.W.9. 6. The prosecution has projected Sakaldeo Singh-P.W.1, Parmeshwar Paswan-P.W.2, Chhotan Singh-P.W.6 and the informant-P.W.9 as eye-witnesses. 7. Dr. Ajit Kumar Chaudhary-P.W.10, who has conducted autopsy, has found the following injuries on Bajrang Singh: “18 c.m. X ½ c.m x bone deep antero-posteriorly at the mid line cutting the frontal and nasal bone along with brain matter. Crack fracture starting from cut fracture situated transversely of the right parietal bone. Lacerated stitched wound measuring 3 c.m x ½ c.m x scalp deep on the frontal region of the head.” 8. According to the doctor, the incised wound found on the person of Bajrang Singh was possible by farsa or garasa whereas lacerated wounds were caused by lathi. 9. The prosecution has set-up a case that Chhotan Singh has suffered injuries in the occurrence and he was treated at Government Hospital, Barhi, District-Hazaribagh, however, no injury report was produced during the trial and the doctor who has allegedly treated Chhotan Singh has not been examined by the prosecution. 10. The learned Sessions Judge has held that the appellants are guilty under section 302/34 IPC, however, the prosecution has failed to prove the charge under section 307/34 IPC and under section 326 IPC against them. 11. 10. The learned Sessions Judge has held that the appellants are guilty under section 302/34 IPC, however, the prosecution has failed to prove the charge under section 307/34 IPC and under section 326 IPC against them. 11. In view of the finding recorded by the learned Sessions Judge that the charges framed against the appellant under section 307/34 IPC and under section 326 IPC have failed, a limited issue; whether the surviving appellant, namely, Kedar Mistry can be roped in with the aid of section 34 IPC for causing death of Bajrang Singh, is involved in the present appeal. 12. In his fardbeyan, the informant has stated that on 07.11.1995 at about 6:00 a.m Sukhan Bhuiyan was grazing cattle on a vacant land near village Nichitpur. Some of the cattle entered the paddy field of Rohan Mistry, the accused, whereupon he started abusing Sukhan Bhuiyan. The informant says that Bajrang Singh and Chhotan Singh came there and asked Rohan not to abuse Sukhan Bhuiyan. Thereafter, an altercation takes place during which Rohan Mistry has pushed the informant on the ground and all three accused persons started assaulting them with lathi, garasa and farsa. He has asserted that Rohan Mistry has assaulted Bajrang Singh with lathi, Shankar Mistry with farsa and the accused Kedar Mistry, the present appellant, has assaulted Chhotan Singh with garasa on his neck and head. On hearing hulla several villagers namely, Rawani Paswan, Parmeshwar Paswan, Baldeo Paswan and Uday Singh had arrived there and thereafter the accused persons fled away. Bajrang Singh and Chhotan Singh were taken to Barhi Hospital where they were treated by the doctor, however, in course of his treatment Bajrang Singh has died. In the court, the informant has narrated a similar story of the incident as has been recorded by him in his fardbeyan. In his examination-in-chief, he has stated that Rohan Mistry has assaulted Bajrang Singh with lathi and Shankar Mistry has inflicted farsa blow. He reiterates that Kedar Mistry has assaulted Chhotan Singh on his head. Chhotan Singh has also stated that he was assaulted by Kedar Mistry. 13. The prosecution witnesses, namely, Sakaldeo Singh-P.W.1 and Sukhan Bhuiyan-P.W.3 have also spoken of assault by Kedar Mistry to Chhotan Singh only. 14. P.W.1 in his cross-examination admits that his statement was recorded by the police about one and half months after the occurrence. Chhotan Singh has also stated that he was assaulted by Kedar Mistry. 13. The prosecution witnesses, namely, Sakaldeo Singh-P.W.1 and Sukhan Bhuiyan-P.W.3 have also spoken of assault by Kedar Mistry to Chhotan Singh only. 14. P.W.1 in his cross-examination admits that his statement was recorded by the police about one and half months after the occurrence. He admits that the land on which the incident has taken place was in possession of Rohan Mistry for the last five years and a counter case has been lodged by Rohan Mistry. In his cross-examination, P.W.3 says that the villagers had assembled at the place of occurrence about half an hour of the occurrence; in paragraph no. 10 of his deposition he says 10 to 20 minutes. On his own account P.W.4 is not an eye-witness. P.W.5, P.W.8 and P.W.9 admit that a counter case was lodged against the prosecution party at the instance of Rohan Mistry. 15. The investigating officer has deposed that he has found signs of the burnt house and damaged stack of paddy crop. 16. The defence set-up by the accused persons is that Bajrang Singh and Chhotan Singh along with others had tried to assault the accused persons, put the house of Rohan Mistry on fire and damaged his paddy stack. 17. The learned Sessions Judge has held that the accused persons had no right of private defence. However, it stands admitted from the prosecution's evidence that the place of occurrence was in possession of Rohan Mistry and Rambyas Singh, Bajrang Singh and Chhotan Singh had gone there and raised an altercation with the accused persons. This fact, therefore, eliminates premeditation on the part of the accused persons. At this juncture it cannot be inferred that the accused persons had shared a common intention to cause death of Bajrang Singh. Section 34 IPC in itself is not a substantive offence. It talks of constructive liability of an accused who may not have actively participated in the occurrence, but then, to rope in such an accused for the offence like murder with the aid of section 34 IPC the prosecution must prove that the death has been caused in furtherance of common intention of all or that the other accused had knowledge that death may be caused in furtherance of the common intention. From the prosecution's evidence as laid during the trial and particularly the manner of occurrence as disclosed by the prosecution witnesses; the appellant has not touched the body of Bajrang Singh and assault by him on Chhotan Singh has not been found proved by the learned Judge, we are of the opinion that the prosecution has failed to prove the charge under section 302/34 IPC against the appellant-Kedar Mistry. It was a trivial issue on which an altercation had taken place. May be the appellant was present at the place of occurrence and at the time of occurrence, but, in so far as charge under section 302/34 IPC framed against him along with the co-appellant Rohan Mistry for causing death of Bajrang Singh in furtherance of their common intention is concerned, it must fail. 18. Accordingly, the conviction of Kedar Mistry under section 302/34 IPC dated 22.05.2001 and the order of sentence dated 23.05.2001 of R.I for life inflicted upon him for the said offence passed by the learned 3rd Addl. Sessions Judge, Hazaribag in Sessions Trial No. 272 of 1996 are set-aside. 19. Criminal Appeal (DB) No. 225 of 2001 is allowed 20. The appellant, namely, Kedar Mistry who is on bail stands discharged of liability of the bail-bonds furnished by him. 21. The Court appreciates the assistance rendered by Ms. Shaurya, the learned counsel for the appellant and Mrs. Laxmi Murmu, the learned APP. 22. Let lower-court records be transmitted to the court concerned, forthwith. Appeal allowed