JUDGMENT : Shree Chandrashekhar, J. Two persons, namely, Mahabir Oraon and Jadurai Oraon were named as accused by Johan Oraon in his fardbeyan which was recorded on 11.06.1990, on the basis of which Namkum P.S. Case No. 116/90 was registered against them under section 302/307/34 IPC. Both have been found guilty for causing death of Gopal Oraon, brother of the informant, and sentenced to undergo R.I. for 10 years and fine of Rs. 1000/- under section 304 Part-I/34 IPC. 2. By an order dated 02.01.2002 both the appellants were granted bail by this Court. 3. Mr. P.K. Appu, the learned APP submits that on death of the appellant, namely, Jadurai Oraon during pendency of this criminal appeal, vide order dated 11.07.2019 this criminal appeal qua the appellant no. 1, namely, Jadurai Oraon has abated. 4. Ms. Aprajita Bhardwaj, the learned Amicus, has raised three fold contentions: (i) conviction of the surviving appellant, namely, Mahabir Oraon with the aid of section 34 IPC is improper, (ii) the prosecution evidence, particularly, evidence of the eye witnesses on involvement of Mahabir Oraon in the incident is not consistent, and (iii) failure of the Investigating Officer to produce the blood-stained soil and FSL report, non-production of the crime weapon and failure to examine the independent witnesses have made the prosecution’s case doubtful. 5. To fortify her contentions, Ms. Aprajita Bhardwaj, the learned Amicus has relied on the judgments in (i) “Harjit Singh and Ors Versus State of Punjab” reported in (2002) 6 SCC 739 ; (ii) “Suresh and Anr. Versus State of U.P.” reported in (2001) 3 SCC 673 ; and (iii) “Krishnan and Anr. Versus State represented by Inspector of Police” reported in (2003) 7 SCC 56 . 6. In view of death of the appellant, namely, Jadurai Oraon, we are not inclined to examine on merits the prosecution’s case on his involvement in the alleged occurrence. 7. The surviving appellant, namely, Mahabir Oraon has been convicted and sentenced under section 304 Part-I/34 IPC. To challenge the conviction of Mahabir Oraon with the aid of section 34 IPC, the learned Amicus submits that without proving participation of Mahabir Oraon and, that too, with common intention, but not similar intention, to cause death of Gopal Oraon the appellant cannot be convicted with the other appellant, namely, Jadurai Oraon. 8. To challenge the conviction of Mahabir Oraon with the aid of section 34 IPC, the learned Amicus submits that without proving participation of Mahabir Oraon and, that too, with common intention, but not similar intention, to cause death of Gopal Oraon the appellant cannot be convicted with the other appellant, namely, Jadurai Oraon. 8. Referring to the judgments on section 34 IPC, the learned Amicus contends that the prosecution has failed to establish the manner of occurrence; the number of assault upon Gopal Oraon by Mahabir Oraon, part of the body on which assault has been made by Mahabir Oraon and above all the weapon with which he has assaulted Gopal Oraon, and therefore the essential ingredients under section 34 IPC have not been proved in this case. 9. On the point that the prosecution has also failed to establish that death of Gopal Oraon has been caused in furtherance of common intention of both the accused persons, the learned Amicus has relied on paragraph no. 38 of the judgment in “Harjit Singh and others V. State of Punjab” reported in (2002) 6 SCC 739 , wherein the Supreme Court has observed as under: “38. Common intention is a state of mind of an accused which can be inferred objectively from his conduct displayed in the course of commission of the crime as also prior and subsequent attendant circumstances. Mere participation in the crime with others is not sufficient to attribute common intention to one of others involved in the crime. The subjective element in common intention therefore should be proved by objective test. It is only then that one accused can be made vicariously liable for the acts and deeds of the other co-accused.” 10. Section 34 of the Indian Penal Code postulates vicarious liability of all for the act of one if the criminal act has been done in furtherance of the common intention of all. In the celebrated judgment in “Mahbub Shan V. Emperor” reported in AIR 1945 PC 118 , the Privy Council has observed; “ when a criminal act is done by several persons, each of such persons is liable for that act in the same manner as if the act was done by him alone”. In the celebrated judgment in “Mahbub Shan V. Emperor” reported in AIR 1945 PC 118 , the Privy Council has observed; “ when a criminal act is done by several persons, each of such persons is liable for that act in the same manner as if the act was done by him alone”. This observation on section 34 IPC was of course made prior to the amendment in 1870 by which the word “persons” has been substituted by the expression “in furtherance of common intention of all”, but the law on applicability of section 34 IPC has remained the same. In “Barendra Kumar Ghosh V. King Emperor” reported in AIR 1925 PC 1 , the Judicial Committee has dealt with the scope of section 34 IPC in the following words: “Read together, these sections are reasonably plain. Section 34 deals with the doing of separate acts, similar or diverse, by several persons; if all are done in furtherance of a common intention, each person is liable for the result of them all, as if he had done them himself, for ‘that act’ and ‘the act’ in the latter part of the section must include the whole action covered by ‘a criminal act’ in the first part, because they refer to it.” 11. The prosecution has projected Suleman Oraon PW-1 and Johan Oraon PW-4 as eye-witnesses. Suleman Oraon has stated in the Court that he has seen Jadurai Oraon assaulting Gopal Oraon with farsa on his head, but he admits that he has not seen Mahabir Oraon assaulting any one. The informant-PW-4 says that Jadurai Oraon has assaulted Gopal Oraon and thereafter, Mahabir Oraon came there and assaulted Gopal Oraon with lathi. In his cross-examination, the informant says that Mahabir Oraon was holding a thin stick used for hawking the cattle and he has assaulted him with that stick, however, Suleman Oraon contradicts him on this point; he has not seen Mahabir Oraon assaulting anyone. Dr. Harideo Tripathi who has examined the informant has found four lacerated wounds on him and in his opinion all the injuries were simple in nature. 12. On such evidence, in our opinion, not only active participation of Mahabir Oraon in the incident is doubtful, the prosecution has failed to establish that he has shared common intention with Jadurai Oraon to cause death of Gopal Oraon. 13. 12. On such evidence, in our opinion, not only active participation of Mahabir Oraon in the incident is doubtful, the prosecution has failed to establish that he has shared common intention with Jadurai Oraon to cause death of Gopal Oraon. 13. As pointed out by the learned Amicus, there are other inconsistencies in the prosecution’s case, however, in view of the above finding recorded by us, we are not inclined to delve into those issues. 14. In the light of the above discussions and having scrutinized the evidences laid by the prosecution during the trial in Sessions Trial No. 21 of 1991, we hold that the prosecution has failed to bring home the charge under section 302/34 IPC against Mahabir Oraon. Therefore, his conviction and the sentence for causing death of Gopal Oraon under section 304 Part-I/34 IPC are found unsustainable. 15. In the result, the judgment of conviction dated 21.07.2001 and the order of sentence dated 25.07.2001 passed by the learned 3rd Additional Judicial Commissioner, Ranchi in S.T. No.21/91 against the appellant, namely, Mahabir Oraon under section 304 Part-I/34 IPC are set aside. 16. The appellant, namely, Mahabir Oraon is on bail and, therefore, he shall be discharged of the liability of bail bonds furnished by him. 17. Cr. Appeal (DB) No. 354 of 2001 is allowed. 18. The assistance rendered by Ms. Aprajita Bhardwaj, the learned Amicus, who has prepared a paper book of the prosecution’s evidence, short synopsis and notes on the prosecution’s evidence, is appreciated. 19. Let lower court records be transmitted to the court concerned, forthwith. 20. Let a copy of the judgment be communicated to the trial court through FAX.