JUDGMENT Banwari Lal Sharma, J. - This criminal appeal has been preferred against the judgment dated 3.3.2014, passed by Additional Sessions Judge No.4, Ajmer, in Sessions Case No.60/2012. The accused appellants have been convicted and sentenced as under- Accused-appellant Mahesh @ Bhaiya ' For offence under section 302/34 IPC ' life imprisonment with fine of Rs. 1000/-, in case of default to pay fine, to further undergo simple imprisonment of three months. Accused appellant Ankur @ Chirag ' For offence under section 302 IPC - life imprisonment with fine of Rs. 1000/-, in case of default to pay fine, to further undergo simple imprisonment of three months. Brief Facts Of The Case 2. An FIR No.96/2011 was registered by the Police on 7.8.2011. It was on a written report by Sarwar Siddiqui. It was stated that at around 3.30 PM, he was called by some one to come down from the house. He immediately came down and saw Mohammad in pool of blood. Rajesh Choursia also reached there and on his motorcycle, Mohammad Faakir was taken to hospital. On asking, Mohammad Faakir told that Mahesh Bhaiya and his son stabbed him with knife. When motorcycle imbalanced, he was taken in an auto rickshaw from Ghaseti Auto Stand to JLN Hospital. His family members were also reached there. It was alleged that due to old enmity, both the accused have stabbed Mohammad Faakir with an intention to cause his death. On the above written report, the investigation was made. Mohammad Faakir died during treatment. 3. After investigation, police filed challan for offence under section 302/34 IPC against both the accused appellants. Since the matter was triable by Court of Sessions, it was committed. The trial court heard and framed charges against the accused appellants for the offence under section 302 IPC against accused Ankur and under section 302/34 IPC against accused Mahesh. The charges were explained to the accused appellants. They denied it thus trial commenced. 4. The prosecution produced twenty witnesses apart from seventy one documents to prove their case, whereas, statements of the accused appellants were recorded under section 313 CrPC, 1973. In defence, they produced two witnesses and fourteen documents. 5. After marshalling the evidence, trial court convicted and sentenced the accused appellants as detailed above. Arguments On Behalf Of Accused Appellant Mahesh @ Bhaiya 6. In defence, they produced two witnesses and fourteen documents. 5. After marshalling the evidence, trial court convicted and sentenced the accused appellants as detailed above. Arguments On Behalf Of Accused Appellant Mahesh @ Bhaiya 6. Learned counsel for accused appellant Mahesh @ Bhaiya submits that in the written report, name of the accused Mahesh and Ankur were given without showing their overt act in the occurrence. In the television interview, the complainant and others had given name of some other person for causing the occurrence. It is only thereafter that name of present appellant was given. 7. It is also submitted that PW-4 to PW-7 and PW-18 were shown to be eye witnesses, however, PW-7 and 18 have not supported the prosecution case. They were declared hostile. The witnesses PW-4 to 6 were planted by the prosecution. In any case, they have not named accused Mahesh for causing knife blows to the deceased Mohammad Faakir. The specific allegation exist against accused appellant Ankur. There was no motive with the accused Mahesh to cause the occurrence with common intention to make out a case for offence under section 302 IPC with the aid of section 34 IPC. 8. Learned counsel has further stated that only one knife has been recovered thus occurrence could not have been caused by two persons. In the present matter, specific allegation exists against accused Ankur for causing the occurrence. In view of the above, mere presence of accused Mahesh cannot lead to his conviction for offence under section 302/34 IPC. 9. It is further stated that recovery of clothes and motorcycle with a knife has been shown at the instance of the accused Mahesh and even co-accused Ankur. The police had visited the residence of the accused but did not recover any clothes. It was recovered later on thus recovery becomes doubtful. 10. It is also stated that blood found on the clothes did not match to the blood group of the deceased, therefore, based on the recovery of clothes, accused Mahesh could not have been connected with the crime. 11. So far as recovery of motorcycle and the knife is concerned, it was from the place of Vinod Upadhyaya, who did not support the recovery. He was examined by the prosecution as PW- 16. In view of the above, accused Mahesh has wrongly been convicted and sentenced for the offence under section 302/34 IPC. 11. So far as recovery of motorcycle and the knife is concerned, it was from the place of Vinod Upadhyaya, who did not support the recovery. He was examined by the prosecution as PW- 16. In view of the above, accused Mahesh has wrongly been convicted and sentenced for the offence under section 302/34 IPC. No motive of the accused has been proved by the prosecution so as to have common intention of the accused to cause the occurrence. 12. It is lastly submitted that there is variance in the evidence. Initially, it was not stated that accused Mahesh catch hold of the deceased and thereupon knife blows were given by co accused Ankur thus implication of accused Mahesh was with improvement but ignored by the trial court. The prayer is accordingly made to acquit the accused appellant Mahesh of the offence under section 302/34 IPC. Arguments On Behalf Of Accused Appellant Ankur @ Chirag 13. Learned counsel appearing for accused appellant Ankur @ Chirag submits that, initially, when the interview was given by the complainant Sarwar Siddiqui on a television, name of Ankur was not given, rather, it was of a third person. It is with improvement that name of Ankur @ Chirag was implicated. 14. It is also stated that there is contradiction in the statements of PW-7-Zulfekar and PW-18-Rajesh Choursia and otherwise they have not supported prosecution case. PW-4-Sarwar Siddiqui, PW-5-Mohd Ar if and PW-6-Iftekhar are interested witnesses being relatives of the deceased thus trial court should not have believed their testimony. 15. It is also submitted that blood stained clothes were sent to the FSL but blood group on it could not be detected. Accordingly, recovery of the clothes and FSL report should not have been taken to convict appellant Ankur. So far as recovery of motorcycle and knife are concerned, it was from the place of PW( 6 of 13) [CRLA-683/2014] 16-Vinod Upadhyaya, who has not supported recovery of motorcycle and the knife. In view of the above, trial court should not have believed recovery of knife so as the FSL report thereupon. The prosecution even failed to prove motive to cause the occurrence. The conviction of the accused appellant Ankur is without proof to prove the case beyond doubt. The prayer is accordingly to acquit accused appellant Ankur @ Chirag while setting aside order of the trial court. Arguments Of The Side Opposite 16. The prosecution even failed to prove motive to cause the occurrence. The conviction of the accused appellant Ankur is without proof to prove the case beyond doubt. The prayer is accordingly to acquit accused appellant Ankur @ Chirag while setting aside order of the trial court. Arguments Of The Side Opposite 16. Learned PP has contested the appeal for both the appellants. It is submitted that the accused are father and son. They came with an intention to cause the occurrence. Names of both the accused were given by the deceased before he died. It was before PW-4- Sarwar Siddiqui, who has named the accused for causing the occurrence thus there exist dying declaration. The deceased had received as many as 11 stab wounds thereby repeated blows were given by the accused with a knife and it cannot be by one accused but by both of them. It is, therefore only, blood stained clothes of both the accused were recovered which is sufficient to connect them with the crime. 17. It is also stated that there exist eye witnesses to the occurrence. They have given complete description of the incidence. Learned PP has made reference of statements of PW-4 to PW-6. They have not only supported the prosecution case but corroborated other evidence. It is not only regarding recovery of motorcycle and knife but also blood stained clothes of the deceased and the accused. The witnesses have even proved the site map apart from post mortem report. It is even FSL report where blood group on the knife and clothes recovered at the instance of the accused matched to the blood group of the deceased. In view of the above, trial court has rightly convicted and sentenced the accused for offence under section 302 IPC. 18. It is further stated that specific allegations exist against Mahesh for his participation in the occurrence thus he has been convicted and sentenced for offence under section 302/34 IPC. He facilitated the main accused Ankur for causing the occurrence. Accordingly, trial court rightly convicted and sentenced the accused appellants. The prayer is accordingly to dismiss the criminal appeal. Finding Of The Court 19. We have considered rival submissions of the parties and scanned the matter carefully and, for that, even perused the record. 20. In this case, prosecution produced five eye witnesses to prove their case. Accordingly, trial court rightly convicted and sentenced the accused appellants. The prayer is accordingly to dismiss the criminal appeal. Finding Of The Court 19. We have considered rival submissions of the parties and scanned the matter carefully and, for that, even perused the record. 20. In this case, prosecution produced five eye witnesses to prove their case. PW-4-Sarwar Siddiqui gave written report to the police and, based on it, FIR was lodged. He has stated that on 7.8.2011, he was at his residence after making prayer ('namaz'). He heard a call and accordingly came down from the house. He saw Mohammad Faakir in pool of blood near 'Radhakishan Chabutra'. He immediately reached to the place of occurrence where Mohd Ar if, Iftekhar, Rajesh, children and many persons were available. The deceased disclosed about the occurrence by accused Mahesh and Ankur by giving repeated knife blows. The deceased was taken to the hospital where he was declared dead. The said witness was cross examined by the accused. In the cross examination, he has maintained his statement for causing knife blows to the deceased by the accused Ankur. He has not made allegations against accused Mahesh @ Bhaiya for causing knife blows. 21. The statement of PW-4 has been supported by PW-5- Mohd. Ar if. It is stated that when he reached to the place of occurrence, one Shakir stated that accused Mahesh catch hold of deceased Mohammad Faakir and his son caused knife blows. The said witness has also made allegations for causing knife blows by accused Ankus and not by Mahesh. It was further stated that accused Mahesh catch hold of the deceased and accused Ankus caused knife blows. In the written report, it has not been stated that Mahesh catch hold of deceased and thereupon knife blows were given by the co-accused Ankur. PW-6-Iftekhar has given corroborative evidence. He has described the incident in the same manner given by PW-4 and PW- 5. In view of the above, prosecution could produce eye witnesses though PW-7-Zulfikar and PW-18-Rajesh Choursia were declared hostile. The statement of PW-7 can also be read to the extent it support prosecution case or is corroborated by other evidence. 22. In view of the facts given above, prosecution produced eye witnesses though, according to the appellants, they were planted. In view of the above, prosecution could produce eye witnesses though PW-7-Zulfikar and PW-18-Rajesh Choursia were declared hostile. The statement of PW-7 can also be read to the extent it support prosecution case or is corroborated by other evidence. 22. In view of the facts given above, prosecution produced eye witnesses though, according to the appellants, they were planted. It is mainly on the ground that they had given name of other person for causing the occurrence while giving interview to the news channel on television. The paper cuttings were produced. It is with improvement that names of the appellants were given later on. 23. We do not find any substance in the argument. It is for the reason that written report was made immediately after the occurrence and even FIR was lodged thereupon without lapse of time. The occurrence took place at around 3.30 PM and FIR was lodged at 4.50 PM thus there was no time in between to think and falsely implicate others. The news cuttings cannot be relied as against the court statement of the witness thus it cannot be said that PW-4 to PW-6 have been planted by the prosecution. In fact, they are eye witnesses and described the incidence, as had taken place. 24. It is, however, a fact that specific allegation for causing knife blows has been made against accused appellant Ankur @ Chirag and not against accused appellant Mahesh @ Bhaiya, who has been convicted for offence under section 302 IPC with the aid of section 34. The statements of PW-4 to PW-6 do not show a motive to cause the occurrence with common intention. Mere presence of a person cannot make him an accused. 25. To support the argument, learned counsel for accused appellant Mahesh has made reference of the judgment in the case of 'Ajay Sharma v. State of Rajasthan', 1998 CrLR (SC) 667 . In the said case also, conviction with the aid of section 34 IPC was not accepted in absence of overt act of the accused. Therein also, allegation was to catch hold of the deceased and shouting 'maaro', which did not mean 'to kill' thus accused was acquitted of the offence under section 302 read with section 34 IPC. 26. In the instant case, no such allegation exists against accused appellant Mahesh thus arguments made by the counsel need consideration. Therein also, allegation was to catch hold of the deceased and shouting 'maaro', which did not mean 'to kill' thus accused was acquitted of the offence under section 302 read with section 34 IPC. 26. In the instant case, no such allegation exists against accused appellant Mahesh thus arguments made by the counsel need consideration. It cannot be considered further in reference to other evidence produced by the prosecution. 27. The prosecution had made recovery of knife and motorcycle vide recovery memo Ex.P-25. It is on the information given by the accused Mahesh as well as accused Ankur. The information under section 27 of the Evidence Act is Ex.P-41 to 43. The recovery memo, Ex.P-25, proved by the prosecution shows that knife kept in the tool box of the motorcycle was brought out by the co-accused Ankur and not by accused Mahesh. In view of the above, though recovery of the motorcycle and knife is at the instance of both the accused appellants, recovery memo shows that knife was taken out by main accused Ankur @ Chirag. 28. As per the FSL report (Ex.P-47), the blood stained knife was containing blood group of the deceased. It was matching to the clothes of the deceased, recovered and sent to the FSL. It is, however, a fact that blood group on clothes of the accused could not be detected. 29. The prosecution even proved declaration under section 27 of the Evidence Act for information about place of occurrence by the accused apart from clothes. The information under section 27 of the Evidence Act has been proved by the prosecution which are at Ex.P-41 to 46. 30. The prosecution produced Dr Sumer Singh-PW-19 to prove not only post mortem report but the injuries sustained by the deceased. He has described 11 injuries on the person of the deceased Mohammad Faakir out of sharp edged weapon. The said witness has proved post mortem report Ex.P.38. All the injuries to the deceased were out of sharp object. 31. The prosecution even produced 'malkhana' register to show that articles so recovered were kept in 'malkhana' after making entry in the register. 32. The said witness has proved post mortem report Ex.P.38. All the injuries to the deceased were out of sharp object. 31. The prosecution even produced 'malkhana' register to show that articles so recovered were kept in 'malkhana' after making entry in the register. 32. In view of the facts given above, we find that while the prosecution could prove its case beyond doubt against accused appellant Ankur @ Chirag for causing the occurrence where he has given repeated blows by knife to the deceased, conviction of accused appellant Mahesh is without evidence. It could not be proved beyond doubt. 33. It is not only that none of the witnesses has made specific allegation for causing injuries by accused Mahesh but also overt act in the occurrence. In the written report, it was not even mentioned that he catch hold of the deceased so as to facilitate co-accused Ankur to cause knife blows. In fact, he has been implicated with improvement in the statements by PW-4 to PW-6. It is also that, earlier, we have drawn conclusion that proof of common intention to cause the occurrence has not been brought by the prosecution thus conviction could not have been made with the aid of section 34 IPC. 34. In view of the above and as facts of the case are otherwise supported by the judgment of the Apex Court in the case of Ajay Sharma (supra), we find reasons to accept the arguments of learned counsel for accused appellant Mahesh @ Bhaiya for his acquittal of the offence under section 302/34 IPC. His conviction cannot be maintained merely due to recovery of blood stained clothes when the blood group has not come and otherwise recovery of knife is at the instance of accused Mahesh as well as Ankur. 35. In view of the aforesaid, we are inclined to allow appeal preferred by accused appellant Mahesh @ Bhaiya. 36. So far as accused appellant Ankur @ Chirag is concerned, we find that eye witnesses have named him for causing knife blows to the deceased and it is not one but repeatedly 11 blows. It was even stated in the written report made by PW-4-Sarwar Siddiqui.The blood stained knife was recovered on the information under section 27 of the Evidence Act by the accused Ankur and blood on the knife matched to the blood group of the deceased. 37. It was even stated in the written report made by PW-4-Sarwar Siddiqui.The blood stained knife was recovered on the information under section 27 of the Evidence Act by the accused Ankur and blood on the knife matched to the blood group of the deceased. 37. It is not that two knives have been used in the occurrence, rather, it is one knife which has been used by Ankur to cause the occurrence. Conclusion 38. Accordingly, we do not find a case in favour of the accused appellant Ankur so as to acquit him for offence under section 302 IPC, rather, for him, order of the trial court convicting and sentencing him for offence under section 302 IPC is maintained and the appeal is dismissed. 39. The appeal preferred by accused Mahesh @ Bhaiya is accepted and he is acquitted of the offence under section 302/34 IPC. He is in jail thus be released forthwith if not wanted in any other case. 40. As per section 437A Cr PC, appellant Mahesh @ Bhaiya is directed to furnish a personal bond in the sum of Rs. 25,000/- with one surety in the like amount before the Registrar (Judicial) of this court, which will be effective for a period of six months, undertaking that in the event of Special Leave Petition being filed against this judgment or on grant of leave, the appellant will appear before the Supreme Court on receipt of notice.