JUDGMENT : Shree Chandrashekhar, J. During pendency of Cr. Appeal (DB) No.339 of 2001, the appellant, namely, Puttu Nand Tiwari @ Anil Tiwari has died and consequently, vide an order dated 21.10.2019, Cr. Appeal (DB) No.339 of 2001 has been dismissed as abated and, therefore, we are not inclined to examine merits of the prosecution's case against him. 2. Both the convicts, namely, Puttu Nand Tiwari and Ram Swaroop Nand Tiwary have faced the trial on the charge under section 302/34 of the Indian Penal Code and Puttu Nand Tiwari also charged under section 27 of the Arms Act. 3. In Sessions Trial No. 170 of 1996, the appellant has been convicted and sentenced to R.I for life under section 302/34 IPC and Puttu Nand Tiwari @ Anil Tiwari has been convicted and sentenced to R.I for life under section 302 IPC and R.I for 5 years under section 27 of the Arms Act. 4. Din Dayal Nand Tiwari is son of the deceased. He is the informant in this case. On the basis of his fardbeyan, which was recorded on 18.09.1995 at 6.15 p.m at Mission Hospital, Mandar, Mandar P.S. Case No.80 of 1995 was lodged against the appellants. After the investigation, a charge-sheet was filed against them under section 302/34 IPC and under section 27 of the Arms Act. 5. During the trial, the prosecution has examined six witnesses; the informant is P.W.2 and his younger sister, namely, Simpy Kumari has been examined as P.W.1. 6. The investigating officer of this case has not been examined during the trial. 7. The prosecution has projected P.W.1, P.W.2 and P.W.5 as eye-witnesses. 8. The prosecution witness, namely, Sharif Ansari-P.W.4 has turned hostile and Lachhu Oraon, the hotel owner, has not supported the prosecution's case in its entirety. 9. It is not in dispute that Krishna Nand Tiwari has died due to fire arm injury suffered by him. Dr. Niranjan Minz, who has conducted the post-mortem on 19.09.1995, has found one entry wound on the back of chest and one exit wound at the front of chest of Krishna Nand Tiwari. 10. The informant and his sister both were young; the informant was aged about 14 years and his sister about 10 years, at the time of the occurrence. Both of them have claimed that they have seen Puttu Nand Tiwari @ Anil Tiwari firing a pistol shot at their father. 10. The informant and his sister both were young; the informant was aged about 14 years and his sister about 10 years, at the time of the occurrence. Both of them have claimed that they have seen Puttu Nand Tiwari @ Anil Tiwari firing a pistol shot at their father. A child witness is prone to tutoring and though conviction can be recorded on the basis of testimony of a child witness, as a rule of prudence the courts insist for corroboration. In “State of Assam Vs. Mafizuddin Ahmed” reported in (1983) 2 SCC 14 , the Supreme Court has observed that: “............the evidence of a child witness is always dangerous unless it is available immediately after the occurrence and before there were any possibility of coaching and tutoring”. 11. During her cross-examination, the defence has suggested that Simpy Kumari was tutored by her uncle and aunt with whom after the death of her father she was residing. During her cross-examination, she has admitted that she is staying with her uncle and she is obedient to her uncle and aunt. She has further stated that after the death of her father they discussed how and where the incident has happened and she still remembers what was discussed about the incident in the house. The defence has also elicited from her that she remembers everything what is taught to her in the school. In paragraph no.39 of her cross-examination, she says that her statement was recorded by the police after two days, though she claims that she is an eye-witness. She has further stated that she has not disclosed the name of her brother and cousin to the police. 12. The informant, who has been examined as P.W.2, has stated that the police has taken the dead body to hospital. However, his statement was not recorded at the place of occurrence. Both P.W.1 and P.W.2 have admitted that several villagers were present in the Jitiya mela but no independent witness except Sharif Ansari, who has turned hostile, has been examined by the prosecution. They have also admitted that the appellants are their agnates. 13. The defence set up by the appellants is that the deceased was a labour contractor and he had some dispute regarding commission for providing labour and that is the reason he has been done to death by his rival. 14. They have also admitted that the appellants are their agnates. 13. The defence set up by the appellants is that the deceased was a labour contractor and he had some dispute regarding commission for providing labour and that is the reason he has been done to death by his rival. 14. Shiv Shankar Nand Tiwari-P.W.5, who is the uncle of the informant's father, has stated in his cross-examination that there was dispute between Puttu and Budhu regarding labour. He has also admitted that several villagers used to visit Jitiya yatra and several food stalls are installed during the fair. The inquest report bears the time of preparation of the report as 18.30 hrs. and at the same time it also bears the details of the First Information Report, though the First Information Report was lodged at 19.15 hrs. It is mentioned in the First Information Report itself that distance between the place of the occurrence and the police station is 2 kms. Since the investigating officer of this case was not examined during the trial, the defence was handicap in questioning him on the material aspects of the case, such as, discrepancy in the time of the inquest report and the First Information Report. 15. In the aforesaid background, we now proceed to examine the role played by the surviving appellant in the occurrence. All the witnesses have spoken in unison that both the accused persons came on a scooter in the fair and Puttu Nand Tiwari fired a shot at the back of Krishna Nand Tiwari. The specific overt act attributed to the appellant is that he turned the body of Krishna Nand Tiwari with his leg and on finding him dead fled away with co-accused Puttu Nand Tiwari threatening the crowd. 16. Section 34 of the Indian Penal Code embodies constructive liability. It talks of joint liability of all the accused persons for the act done by one. It pre-supposes prior concert or meeting of mind between two or more persons and it is not necessary that each one of them must have played some role in the occurrence. Once it is proved that the criminal act has been done in furtherance of common intention of all, section 34 springs into action irrespective of any overt act by the others. Once it is proved that the criminal act has been done in furtherance of common intention of all, section 34 springs into action irrespective of any overt act by the others. But then, to rope in an accused with the aid of section 34 IPC the prosecution must prove that the offending act was committed in furtherance of common intention of all. This has also to be kept in mind that common intention is not akin to similar or same intention. Puttu Nand Tiwari was carrying a pistol and this fact was known to the appellant has not been proved by the prosecution. The prosecution has also failed to prove that the appellant had the knowledge that in furtherance of common intention death of Krishna Nand Tiwari would be caused. Both the accused persons have come together and they have left together, but in the background that all the material witnesses are related witnesses and they have spoken about some difference between Krishna Nand Tiwari and Puttu Nand Tiwari, that alone is not sufficient to infer that the appellant has shared common intention with Puttu Nand Tiwari and murder of Krishna Nand Tiwari has been committed in furtherance of their common intention. The allegations against the appellant that he has turned the body of Krishna Nand Tiwari and threatened the crowd are not proved by the prosecution; P.W.4 has turned hostile and P.W.6 has not supported the prosecution story. 17. The above being the factual scenario, we are of the opinion that on the basis of testimony of the so-called eye-witnesses, it cannot be established that the appellant along with Puttu Nand Tiwari has committed murder of Krishna Nand Tiwari in furtherance of their common intention. Therefore, conviction of the appellant under section 302/34 IPC is set-aside. 18. The appellant is acquitted of the charges framed against him in Sessions Trial No.170 of 1996. 19. The appellant, namely, Ram Swaroop Tiwary @ Budhu Nand Tiwary, who is on bail, shall stand discharged of liability of the bail-bonds furnished by him. 20. In the result, Criminal Appeal (DB) No. 359 of 2001 is allowed. 21. Let the lower-court records be transmitted to the court concerned, forthwith.