JUDGMENT : HEMANT KUMAR SRIVASTAVA, J. 1. This criminal appeal has been preferred by the sole appellant, namely, Shri Amir Thakur against the impugned judgment of conviction dated 29.03.1995 and sentence order dated 30.03.1995 passed by the learned 9th Additional Sessions Judge, Patna, in Sessions Trial No. 592 of 1993, arising out of Dhanarua P.S. Case No. 73 of 1988 whereby and whereunder, he convicted the appellant for the offence punishable under Section 302 read with Section 34 of the Indian Penal Code and sentenced him to undergo imprisonment for life. 2. Briefly stated the fact of the prosecution case is that deceased Baleshwar Prasad gave his fardbeyan to P.W.-5, namely, Deepak Kumar Ambastha, the then, S.I. of Pirbahore Police Station, Patna on 18.05.1988 at 12.25 P.M. at Operation Theater of P.M.C.H., Patna to this effect that on the same day between 5.30 A.M. to 5.45 A.M. while he was taking tea at Dhanarua Block, FIR named accused, namely, Jatha Bind came there and opened fire on him. F.I.R. named accused Chhathu Jamadar was also with the aforesaid Jatha Bind. The above stated Chhathu Jamadar, too, fired upon him, but fire of Chhathu Jamadar did not hit him. Deceased Baleshwar Prasad further stated in his fardbeyan that Bhonu Jamadar, son of Chhathu Jamadar, Buta Jamadar and appellant Amir Thakur were also with Jatha Bind. He, further, claimed that firearm of Jatha Bind hit on his left chest and left Panjara. He, further, claimed that after the occurrence, he was brought to P.M.C.H., Patna for treatment. He claimed that the aforesaid occurrence took place on account of land dispute because F.I.R. named accused persons including the appellant belonged to Nexalite Group and that was the reason, they committed the alleged occurrence. Deceased further claimed that at the time of alleged occurrence, his son was also present on the place of occurrence and witnessed the occurrence and apart from this, some other persons were also present there and saw the occurrence. Deceased further disclosed in his fardbeyan that his statement was being recorded while he was in Operation Theater and the aforesaid statement was recorded in presence of doctor. 3. Deceased further disclosed in his fardbeyan that his statement was being recorded while he was in Operation Theater and the aforesaid statement was recorded in presence of doctor. 3. The fardbeyan of deceased was sent to Dhanarua Police Station and, accordingly, on the same day i.e., on 18.5.1988 Dhanarua P.S. Case No. 73/88 under Sections 307/34 of the Indian Penal Code and 27 of the Arms Act was registered and formal F.I.R. was drawn up on the same day at 6 P.M. against the appellants and others for the offence punishable under Sections 307/34 of the Indian Penal Code and 27 of the Arms Act. However, in course of treatment, deceased-informant died on 26.5.1988 and after death of deceased-informant, Section 302 of the I.P.C. was added in the F.I.R. 4. One Chandrika, the then Officer-in-Charge of Dhanarua Police Station, took charge of investigation and after completion of investigation, he submitted charge-sheet against the appellant and five other persons for the offences punishable under Sections 302/34 of the I.P.C. and Section 27 of the Arms Act. 5. The cognizance of the offence was taken and the case was committed to court of sessions, in usual way. 6. The appellant was alone put on trial as the remaining charge-sheeted accused were absconding and their case was separated before commitment. The appellant stood charged for the offence punishable under Sections 302/34 of the I.P.C. to which, he denied and claimed to be tried. 7. In course of trial, prosecution examined, altogether, 9 prosecution witnesses and also got exhibited inquest report, postmortem report and some other documentary evidence. The statement of appellant was recorded under Section 313 of the Cr.P.C. in which, he reiterated his innocence. No evidence was adduced by the appellant in his defence, but from perusal of the statement recorded under Section 313 of the Cr.P.C. as well as trends of cross-examination of prosecution witnesses, it is explicit clear that the defence of appellant was his false implication due to land dispute and village politics. 8. Learned trial court after analysing the prosecution evidence, having relied upon the testimonies of P.W. 3 and P.W. 4 as well as treating the fardbeyan of deceased-informant as dying declaration, passed the judgment of conviction and sentence order against which this appeal has been preferred. 9. 8. Learned trial court after analysing the prosecution evidence, having relied upon the testimonies of P.W. 3 and P.W. 4 as well as treating the fardbeyan of deceased-informant as dying declaration, passed the judgment of conviction and sentence order against which this appeal has been preferred. 9. Sri Ram Priya Sharan Singh, Advocate appears for appellant as Amicus Curiae and assails the impugned judgment of conviction and sentence order arguing that learned trial court failed to appreicate the evidence in right perspective and ignored as well as overlooked several important aspects which emerged in the statements of prosecution witnesses. He submitted that according to fardbeyan of the deceased itself, it were F.I.R. named accused Jatha Bind and Chhotu Jamadar, who opened fire on the deceased and the fire of Jatha Bind hit the deceased and so far as appellant is concerned, fardbeyan of deceased-informant reveals that he was simply present on the place of occurrence without having any weapon in his hand and, furthermore, fardbeyan of deceased does not reveal any specific overt act against the appellant and, therefore, the aforesaid circumstance goes to show that there was no prior meeting of minds between appellant and FIR named accused Jatha Bind and others. He submitted that in absence of prior meetings of mind between main assailant and the appellant, the conviction of appellant under Section 302/34 of the IPC is not in accordance with law. He referred decision of Harjit Singh and Ors. Vs. State of Punjab reported in 2002 SCC (Cri.) 1518 wherein at Para 38 of the aforesaid Judgment, the Hon'ble Apex Court has held as follows: "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. 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. He, next, submitted that the fardbeyan of deceased-informant goes to show that aforesaid fardbeyan was recorded on 18.05.1988 at 12.25 P.M. at Operation Theater of P.M.C.H., Patna whereas, P.W.-6 admitted in his cross-examination that the process of operation of deceased-informant started at 12.05 P.M. and continued till 3.30 P.M. and, therefore, aforesaid admission of P.W.-6 creates doubt about the genuineness of fardbeyan of deceased-informant. He, next, submitted that P.W.-3 and P.W.-4 both claimed that they had gone to P.M.C.H., Patna along with deceased-informant after the alleged occurrence, but it is surprisingly enough that neither P.W.-3 nor P.W.-4 appeared as witness on the fardbeyan of deceased-informant. He, further, submitted that, no doubt, P.W.-6 claimed to have signed the fardbeyan of informant-deceased and his signature appeared on the fardbeyan of deceased-informant, but he did not give any certificate on the fardbeyan of deceased regarding the mental condition of deceased at the time of recording his fardbeyan. He, further, submitted that it is also admitted case of the prosecution that the alleged occurrence took place between 5.30 A.M. to 5.45.A.M. and just after the alleged occurrence,, deceased-informant was brought to hospital and he was examined by P.W.-6 in hospital at 7.15 A.M. and, furthermore, P.W.-5 Deepak Kumar Ambastha claimed that on the alleged date of occurrence, he was posted at P.M.C.H., Patna, but it is surprisingly enough that after six hours of alleged occurrence, the fardbeyan of deceased was recorded particularly in the circumstance when the deceased was available at P.M.C.H. just after the alleged occurrence and, therefore, the aforesaid delay as well as, the above stated circumstances also create doubt about the genuineness of fardbeyan of deceased. He, next, submitted that no doubt, the fardbeyan of deceased can be treated as his dying declaration, but on account of the above stated circumstances, the above stated fardbeyan of deceased is not free from doubt, particularly, in the circumstance when the aforesaid fardbeyan starts with the heading "Fardbeyan-cum-Dying Declaration" as if the P.W.-5 was aware of this fact that deceased-informant had to die. He submitted that admittedly the aforesaid fardbeyan was recorded nearabout after six hours of the alleged occurrence and, therefore, no reliance can safely be placed upon the so called dying declaration of deceased-informant. He further submitted that, moreover, P.W.-3 and P.W.-4 have made contradictory statements in respect of manner of occurrence and the aforesaid contradictions go to the root of prosecution case. 11. On the other hand, learned Additional Public Prosecutor supported the impugned judgment of conviction and sentence order arguing that P.W. 3 and P.W.-4 are eye witnesses and both the aforesaid witnesses, specifically, stated that the appellant was also present at the time of alleged occurrence and after the occurrence while leaving the place of occurrence, appellant uttered that the work has been done and, therefore, the aforesaid fact clearly goes to show that the appellant had shared common intention with the main assailant and other accused and, therefore, the learned trial court rightly convicted the appellant for the offence punishable under Section 302 read with Section 34 of the IPC. 12. Having heard the above stated rival contentions of both the parties, we went through the records along with lower court records. 13. P.W. 3 and P.W. 4 claimed themselves to be eyewitness of the alleged occurrence. P.W.-4 is son of the deceased. P.W. 2 is shop-keeper, and according to prosecution case, the alleged occurrence took place while deceased along with P.W.-4 had gone to take tea at the shop of P.W.-2. P.W.-6 is doctor, who claims that on 18.05.1988 at about 7.15 A.M., he had examined the deceased. This witness is also signatory of fardbeyan of informant and claims that the fardbeyan of deceased-informant was recorded in his presence. P.W.-1 is witness of seizure list and P.W.-7 is a formal witness whereas P.W.-8 claims that on 26.5.1988, he held post-mortem examination on the corpus of deceased-informant Baleshwar Prasad. So far as P.W.-9 is concerned, he is a police officer and this witness proved formal FIR and seizure list as well as case diary as the Investigating Officer of the case had died. 14. It is obvious that only P.W. 3 and P.W. 4 claimed to be eye witnesses and except the aforesaid prosecution witnesses, none of the prosecution witnesses has claimed to have seen the alleged occurrence. 14. It is obvious that only P.W. 3 and P.W. 4 claimed to be eye witnesses and except the aforesaid prosecution witnesses, none of the prosecution witnesses has claimed to have seen the alleged occurrence. P.W. 3, Anand Prasad claims that at the time of alleged occurrence, he was near the shop of Sitaram where deceased Baleshwar Prasad along with his son (P.W. 4) were present. He, further, claimed that one unknown person was also present at the shop of Sitaram, but he could not identify him. This witness, further, claimes that ten persons came at the shop of Sitaram and encircled the deceased Baleshwar Prasad. He claims that he identified Jathu Bind, Chhathu Jamadar, Buta Jamadar, Nawal Jamadar, Bhonu Jamadar and Amir thakur out of the aforesaid ten persons and all the above stated persons were carrying pistols in their hands. This witness claimed that Jetha Bind and Chhathu Jamadar fired on deceased but deceased escaped unhurt and, thereafter, Jathu Bind again fired twice, which hit on chest and abdomen of deceased Baleshwar Prasad and after that appellant Amir Thakur uttered that the work has been done and all the aforesaid persons fled away towards south side. He further claimed that he as well as P.W. 4 took the deceased to P.M.C.H., Patna, where deceased gave his fardbeyan before Daroga of Pirbahore Police Station and when the fardbeyan of the deceased was recorded, doctor was present there. In course of cross-examination, at para 4 of his deposition, this witness admitted that his house is at the distance of one and half Kosh from the shop of Sitaram. This witness, further, stated that at the time of alleged occurrence, he was standing at a distance of five feet from the shop of Sitaram. This witness also stated in para 6 of his cross-examination that deceased was residing in village Dhanarua at the time of alleged occurrence. This witness also stated at para 9 that neither deceased Baleshwar Prasad nor P.W. 4 disclosed the name of accused persons. This witness denied his relation with deceased Baleshwar Prasad. 15. P.W. 4, Bhupendra Kumar Singh @ Dhanni claims that he along with his father Baleshwar Prasad had gone at the tea shop of Sitaram and P.W. 2, who happens to be son of Sitaram gave tea to him as well as his father. This witness denied his relation with deceased Baleshwar Prasad. 15. P.W. 4, Bhupendra Kumar Singh @ Dhanni claims that he along with his father Baleshwar Prasad had gone at the tea shop of Sitaram and P.W. 2, who happens to be son of Sitaram gave tea to him as well as his father. He, further, claims that in the meantime, ten persons came there and encircled him and his father. He, further, claims that he identified appellant and some others and all the aforesaid persons were carrying pistols in their hands. This witness also claims that the firing of Jatha Bind hit the deceased and when his father fell down having sustained firearm injury, the appellant uttered that the work has been done and after that, the miscreants fled away from there. He, further, claims that after the occurrence, he as well as P.W. 3 and some others brought the deceased to P.M.C.H., Patna, where his fardbeyan was recorded by police official of Pirbahore Police Station. This witness also claims that the fardbeyan of his father was recorded in his presence. He identified the signature of his father and also stated that Dr. A.K. Verma (P.W. 6) witnessed the aforesaid fardbeyan. This witness, further, stated that his father died on 26.5.1988 during the course of treatment. On being cross-examined by the defence, this witness admitted that there was land dispute between him and F.I.R. named accused Chhathu Bind and others. He claims that the appellant is active member of gang of Mohan Bind. He, further, admits that 2-3 days prior to the alleged occurrence, the appellant had committed loot of his paddy for which a case was lodged. This witness also states that his brother and relatives were killed by the gang of Mohan Bind. The witness further admits that P.W.-3 is resident of Village Baasbigha and the matrimonial home of his elder brother is also in Baasbigha. He further admits that the name of his elder brother is Rama Yadav but he expressed his ignorance to know about the relation of P.W.-3 with aforesaid Rama Yadav. This witness also admits that local police station was at a distance of 1 ½ K.M. from the place of occurrence. He further admits that he did not go to police station to lodge the FIR because he gave priority to provide treatment of his father. This witness also admits that local police station was at a distance of 1 ½ K.M. from the place of occurrence. He further admits that he did not go to police station to lodge the FIR because he gave priority to provide treatment of his father. This witness further states that after the occurrence, his father disclosed the name of accused persons. At para-9 of his cross-examination, this witness admits that the ancestral house of appellant was in his village, but near about 15 years ago, appellant left the village and settled at village Chakdulha. This witness further admits that when appellant committed loot of his paddy, animosity developed between him and appellant. This witness also admits that there was a proceeding of Section 144 Cr.P.C. in respect of the land from which the paddy was looted by the appellant, but the aforesaid proceeding of Section 144 was decided in his favour. 16. From perusal of testimonies of P.W.-3 and P.W.-4, it is explicit clear that it were accused Jatha Bind and Chhathu Bind, who opened fire on deceased and fire of Jatha Bind hit the deceased. It would also appear that the aforesaid witnesses claimed that appellant was present at the place of occurrence and when the deceased having sustained injury by firearm fell down on the ground, the appellant uttered that the work has been done. It is also obvious that except the aforesaid utterness by the appellant, no overt act has been attributed to the appellant. 17. It has been argued on behalf of the appellant that mere presence of appellant at the place of occurrence as well as above stated subsequent conduct is not sufficient to show that the appellant had shared common intention with assailant and other accused. It is settled principle of law that to attract Section 34 of the I.P.C., there must be pre-meetings of mind between the accused persons. The pre-meetings of mind can be gathered from the facts and circumstances of the case as well as conduct of the accused. It is claimed by P.W. 3 and P.W. 4 that appellant came at the place of occurrence along with other F.I.R. named accused and when the occurrence took place, he uttered that the work has been done. The pre-meetings of mind can be gathered from the facts and circumstances of the case as well as conduct of the accused. It is claimed by P.W. 3 and P.W. 4 that appellant came at the place of occurrence along with other F.I.R. named accused and when the occurrence took place, he uttered that the work has been done. Here, we would like say that deceased-informant, has nowhere, stated in his fardbeyan that after the occurrence, appellant uttered that the work has been done rather for the first time aforesaid fact was stated by P.W. 3 and P.W. 4, in course of trial. P.W. 3 and P.W. 4 admitted that deceased-informant was in conscious state even after having sustained firearm injury. P.W. 4 has admitted to this extent that even after sustaining firearm injury, deceased was talking with him and disclosing the name of assailant. Therefore, had appellant uttered the above stated words after the occurrence, the deceased would have certainly mentioned the above stated fact in his fardbeyan but deceased has, nowhere, stated in his fardbeyan that after the occurrence, appellant uttered the above stated words. No doubt, F.I.R./ fardbeyan is not encyclopedia of the prosecution case but missing of such an important fact in fardbeyan creats doubt about the claim of prosecution witnesses that after the occurrence the appellant uttered the above stated words. Therefore, in our view, it cannot be safely believed that after the occurrence appellant had uttered the words as stated above. 18. Deceased-informant claimed in his fardbeyan that F.I.R. named accused Jatha Bind, and Chhathu Jamadar had fired on him but deceased-informant, nowhere, stated that appellant and other accused were also armed with pistols. P.W.-3 and 4 claimed that appellant and other FIR named accused were also armed with pistols but according to prosecution case itself the appellant did not open fire on the deceased nor even touched the body of the deceased. Therefore, in our view, learned amicus curiae appearing for the appellant rightly submitted that mere presence of appellant at the place of occurrence does not prove that appellant had shared common intention with other persons to commit the murder of deceased-informant as there is nothing in prosecution evidence to show that there was prior meetings of mind between appellant and other accused persons. 19. 19. Admittedly, deceased appellant died after eight days of the alleged occurrence and, therefore, even if, it is assumed for the sake of convienence that the fardbeyan of deceased-appellant is his dying declaration, then also, as we have already stated that deceased informant has not whispered even a single word regarding any overt act of the appellant and, therefore, only on the basis of fardbeyan/dying declaration of deceased-informant, the appellant cannot be convicted for the offence of Section 302/34 of the IPC. 20. P.W-4 has admitted in his cross-examination that his family had serious litigation with appellant on account of land dispute and the deceased-informant also disclosed in his fardbeyan that the occurrence took place on account of land dispute and, therefore, possibility of false implication of appellant in the present case cannot be ruled out. 21. Admittedly no charge under Section 27 of the Arms Act has been framed against the appellant nor any question was put to the appellant while recording her statement under Section 313 of the Cr.P.C. to this effect that at the time of alleged occurrence, he was carrying pistol in his hand and, therefore, prosecution could not succeed to prove this fact that the appellant was armed with pistol at the time of alleged occurrence. 22. On the basis of aforesaid discussions, we are of the view that the impugned judgment of conviction and sentence order cannot sustain in the eye of law. Accordingly, this criminal appeal is allowed and the impugned judgment of conviction and sentence are, hereby, set aside. The appellant is acquitted of the charge framed against him. The appellant is on bail. He is discharged from the liabilities of his bail bonds. 23. Before parting with the judgment, we would like to say that this Court appreciates the valuable assistance rendered by learned Amicus Curiae Shri Ram Priya Sharan Singh, Advocate and therefore considering his length of practice which is about 50 years as well as assistance rendered by him to this Court, we think it proper to honour him by fixing his remuneration as Rs. 3,000/-and, accordingly, concerned authority (Patna High Court Legal Aid Service Committee) is directed to pay “Rs. 3,000/-to him as his remuneration. 24. 3,000/-and, accordingly, concerned authority (Patna High Court Legal Aid Service Committee) is directed to pay “Rs. 3,000/-to him as his remuneration. 24. Let a copy of first and last page of this judgment be handed over to Shri Ram Priya Sharan Singh, Advocate so that he could make claim of his remuneration before the competent authority.