JUDGMENT : Sharad Kumar Gupta, J. In this criminal appeal the challenge levied is to the judgment of conviction and order of sentence dated 25-4-2001 passed by 3rd Addl. Session Judge, Durg CG in S.T. No. 180/2000 whereby and whereunder he convicted and sentenced each of the appellants as under:- Conviction under Section Sentence Fine sentence 307/34, IPC RI for 5 years Rs. 500/-, in default of payment of fine to undergo SI for 1 month 2. In brief the prosecution case is that on 31-3-1999 at about 22.00 hour at Bus Stand, Durg, complainant Brijesh Singh had gone to take the charge of cycle stand of bus stand Durg from old contractor Sanjay Tiwari. Sanjay Tiwari had asked him as to why he had beaten appellant No. 2 Kasam Ali. Sanjay Tiwari and appellant No. 2 Kasam Ali caught hold complainant, deceased appellant No. 1 Bablu alias Jakir Husain tried to cause blow on abdomen of complainant by knife, complainant stopped blow thus, injury was caused on his abdomen and right hand. Complainant lodged report on very day by 22.30 hour at police station Durg. After completion of the investigation a charge sheet was filed against the appellants and co-accused Sanjay Tiwari under Section 307/34 of the IPC. Trial Court framed charge against the appellants and co-accused Sanjay Tiwari under Section 307/34 of the IPC. They abjured the charges and faced trial. To bring home the charge prosecution examined as many as 10 witnesses. They did not examine any witness on his defence. After conclusion of the trial, the trial Court convicted and sentenced appellants as aforesaid. However, trial Court acquitted the co-accused Sanjay Tiwari of the charge punishable under Section 307/34 of the IPC. 3. Being aggrieved by aforesaid conviction and sentence, the appellants have preferred this criminal appeal. 4. During the pendency of this appeal, appeal of appellant No. 1 Bablu alias Jakir Husain has died therefore his appeal stood abated. 5. Counsel for the appellant No. 2 submitted that he has been falsely implicated, Trial Court has not appreciated the evidence in proper perspective. Therefore, the impugned judgment of conviction and order of sentence being bad in law may be set aside and he may be acquitted of the aforesaid charge. 6. 5. Counsel for the appellant No. 2 submitted that he has been falsely implicated, Trial Court has not appreciated the evidence in proper perspective. Therefore, the impugned judgment of conviction and order of sentence being bad in law may be set aside and he may be acquitted of the aforesaid charge. 6. On the other hand, State counsel supported the impugned judgment and submitted that the trial Court has rightly convicted and sentenced the appellant No. 2. No interference is called for by this Court. Hence his appeal may be dismissed. 7. P.W. 6 Complainant Brijesh Singh says in para 2 of his statement given on oath that appellants had come near him, appellant No. 2 Kasam Ali had beaten him by hands and fists, appellant No. 1 Bablu alias Jakir Husain had caused injury on his abdomen by knife. 8. P.W. 7 Vinod Malviya says in para 1 of his statement given on oath that quarrel happened between appellant No. 1 Bablu alias Jakir Husain and complainant Brijesh Singh. Appellant No. 1 Bablu alias Jakir Husain had caused injury on the body of complainant Brijesh Singh by knife. 9. P.W. 8 Sudhir Kumar Agrawal says in para 2 of his statement given on oath that appellants had beaten complainant Brijesh Singh. Appellant No. 1 Bablu alias Jakir Husain had caused injuries on abdomen and chest of complainant Brijesh Singh by knife. 10. In FIR Ex. P-5 it has not been mentioned that appellant No. 2 Kasam Ali had also beaten complainant Brijesh Singh by hands and fists. P.W. 7 Vinod Malviya had not stated that appellant No. 2 Kasam Ali had also beaten complainant Brijesh Singh. He says in para 1 during examination in chief that he does not know as to what act was committed by appellant No. 2 Kasam Ali. Moreover in the police statement of P.W. 8 Sudhir Kumar Agrawal it has not been mentioned that allegedly appellant No. 2 Kasam Ali had beaten complainant Brijesh Singh. In these circumstances this Court disbelieves aforesaid statements of P.W. 6 Brijesh Singh, P.W. 8 Sudhir Kumar Agrawal, in the reference that appellant No. 2 Kasam Ali had allegedly beaten the complainant Brijesh Singh. 11. P.W. 6 Brijesh Singh, P.W. 7 Vinod Malviya and P.W. 8 Sudhir Kumar Agrawal do not say in accordance with Ex. In these circumstances this Court disbelieves aforesaid statements of P.W. 6 Brijesh Singh, P.W. 8 Sudhir Kumar Agrawal, in the reference that appellant No. 2 Kasam Ali had allegedly beaten the complainant Brijesh Singh. 11. P.W. 6 Brijesh Singh, P.W. 7 Vinod Malviya and P.W. 8 Sudhir Kumar Agrawal do not say in accordance with Ex. P-5 that appellant No. 2 Kasam Ali had allegedly caught hold the complainant Brijesh Singh. 12. Hon'ble Supreme Court in the matter of Pandurang Tukia and Bhillia -v- State of Hyderabad, AIR 1955 SC 216 has laid down following judicial precedent :- "A man can be vicariously convicted for criminal act of another, the act must have been done in furtherance of common intention of them all." 13. Hon'ble Supreme Court in the matter of Akhlaq -v- State of U P, (2009) 17 SCC 221 has laid down following judicial precedent- "If common intention is proved but no overt act has been attributed to accused, Section 34 attracted as it involved vicariously liability. 14. Hon'ble Supreme Court in the matter of Dayashankar -v- State of M P, AIR 2009 SC 1426 has laid down following judicial precedent- 'Merely because an accused accompanied other accused, that cannot be sufficient to warrant presumption of common intention under Section 34 of the IPC." 15. Looking to the facts and circumstances of the case it cannot be said that the deceased appellant No. 1 Bablu alias Jakir Husain allegedly caused knife injuries on the body of the complainant Brijesh Singh in furtherance of common intention of other co-accused. Thus, aforesaid judicial precedents laid down by Hon'ble Supreme Court in the matter of Pandurang Tukia (supra), Akhlaq (supra) and Dayashankar (supra) are applicable against the prosecution case and in favour of appellant No. 2 Kasam Ali. 16. After the appreciation of the evidence discussed herebefore, this Court finds that prosecution failed to prove the charge punishable under Section 307/34 of the IPC or its lesser offence against appellant No. 2 Kasam Ali. Thus, the trial Court had committed illegality in convicting and sentencing the appellant No. 2 Kasam Ali as aforesaid. Thus, the impugned judgment of conviction and order of sentence are hereby set aside as regards appellant No. 2 Kasam Ali and he is acquitted of the charge punishable under Section 307/34, IPC. 17. Thus, the trial Court had committed illegality in convicting and sentencing the appellant No. 2 Kasam Ali as aforesaid. Thus, the impugned judgment of conviction and order of sentence are hereby set aside as regards appellant No. 2 Kasam Ali and he is acquitted of the charge punishable under Section 307/34, IPC. 17. Appellant No. 2 Kasam Ali is in Central Jail in another case, the concerned jail authority be intimated about his acquittal in this case. 18. Appellant is reported to be on bail. His bail and bond shall continue for a further period of six months as per requirement of Section 437-A, Cr.P.C. 19. Appeal allowed.