JUDGMENT : 1. Heard Sri Manvendra Singh,learned counsel for the appellants and Sri Ratendra Kumar, learned A.G.A. 2. This criminal appeal has been preferred by appellants- Jagat Pal Singh and Shyam Lal Singh against the judgment and order dated 25.02.1991, passed by IV Additional Session Judge, Fatehpur, in S.T. No. 136 of 1986 (State Vs. Jagatpal Singh and Shyam Lal), whereby convicting the appellant no. 1 under Section 307 IPC, for 3 years R.I. and fine of Rs. 2,000/- in default two months simple imprisonment on account of inflicting injury to Ram Manohar Singh, and for inflicting injury to Jai Karan Singh 2 months rigorous imprisonment and fine of Rs. 500/- in default of payment of fine 15 days simple imprisonment to him and convicting the appellant no. 2 Shyam Lal under section 307/34 IPC for rigorous imprisonment of 3 months and fine of Rs. 1,000/- on account of inflicting injury to Ram Manohar Singh in default 1 month simple imprisonment and inflicting injury to Jai Karan Singh one month rigorous imprisonment and fine of Rs. 500/- and in default of payment of fine 10 days simple imprisonment. 3. Brief facts of this case are as follows-: 4. P.W. 1 Phool Singh has lodged an FIR by means of written application Ext. Ka 1 with the allegation that a dispute regarding agricultural field between the family of the complainant and family of the appellants Jagatpal and Shyam Lal about two years ago. It is further alleged in the FIR that on the date of incident i.e. on 05.07.1985 at about 8.00 a.m. the complainant, his cousin brother Jai Karan and Ram Manohar Singh watering his field, meanwhile, the appellant Jagatpal Singh armed with licensee gun and appellant Shyam Lal armed with lathi came there and objected for watering the field and when the first informant refused to stop for watering, due to this altercation take place, on exhortation of the appellant Shyam Lal, Jagat Pal fired shot from his licensee gun with the intention to kill his brother due to such fire Ram Manohar Singh and Jai Karan Singh have got injury. Munni Lal, Kallu and some villagers arrived at the place of occurrence with the assistance of villagers his licensee gun was snatched away. Meanwhile, the appellant Jagatpal managed to escape from the place of occurrence. Munni Lal, Kallu and some villagers arrived at the place of occurrence with the assistance of villagers his licensee gun was snatched away. Meanwhile, the appellant Jagatpal managed to escape from the place of occurrence. After the incident, the complainant P.W. 1 Phool Singh reached at the police station with snatched gun of the appellant Jagatpal along with his injured brother and lodged an FIR. 5. On the basis of written report the chik FIR Ext. Ka 2 was lodged at police station on 05.07.1985 by entering in GD No. Sl. No. 22 11.30 a.m.. The FIR was registered against the appellants Jagat Pal and Shyam Lal under Section 307 IPC and after lodging the FIR, the injured were sent to hospital for medical examination. 6. The injured Ram Manohar and Jai Karan were medically examined on 05.07.1985 at PHC Hathgawan by Medical Officer. The doctor have found following injuries on the persons of injured:- Injuries of injured Ram Manohar:- 1. Multiple firearm wound of different size from 1/6 to ½ mussel deep size in the area of Rt. Arm extending from Rt. Thumb to right upper mid arm. Blackening present, oozing of blood from the wound present. Swelling around the wound present. 2. Multiple gun shot wound injury of different size on 1/6 to ½ x 1/6 mussel deep size on the Rt. lateral chest extend from upper harden of right hip joint to middle point lateral chest. Oozing of blood present. Blacking present. Swelling around the wound also present. Advise X-ray. Nature Advise: All the injury kept under observation. X-ray, cause by some fire arm weapon. Duration about ½ day old. Injuries of injured Jai Karan Singh:- 1. One black spot size of ¼ x ¼ size on the upper herden left thigh 2” below the left injury region. Redness and swelling around the wound present. Nature Advise: injury kept under observation. Advise X-ray, cause of injury could not be detected. Duration about ½ day old. 7. After lodging the FIR, the investigation of this case was handed over to the Investigating Officer Sri Ramesh Chandra Verma, who reached the place of occurrence and recorded the statements of witnesses, and prepared the site plan. During investigation recovery memo of alleged licensee gun Ext. Ka 4 was prepared by him. 8. Duration about ½ day old. 7. After lodging the FIR, the investigation of this case was handed over to the Investigating Officer Sri Ramesh Chandra Verma, who reached the place of occurrence and recorded the statements of witnesses, and prepared the site plan. During investigation recovery memo of alleged licensee gun Ext. Ka 4 was prepared by him. 8. After completing the investigation, investigating officer has submitted charge-sheet against the appellants Jagat Pal and Shyam Lal under section 307 IPC before the court concerned. After submitting charge-sheet the trial court framed the charge Ext. Ka .. against the appellants Jagat Pal and Shyam Lal. 9. The appellants denied the charge framed against them and claimed to be tried. 10. To substantiate the charge, the prosecution has examined 6 witnesses in all. P.W. 1 Phool Singh (complainant), who proved the written report as Ext. Ka-1, P.W. 2 Manohar Singh (injured), P.W. 3, Ram Saran Singh (scribe of the FIR), who proved the FIR as Ext Ka-2, G.D. Entry No. 20, time 11.30 a.m. as Ext. Ka-, recovery memo as Ext Ka-4. P.W. 4 Dashrath (public witness), P.W. 5 Munnil Lal and P.W. 6 Constable Prem Shankar Pandey, who proved site plan as Ext. Ka-5 and charge-sheet as Ext. Ka-6. 11. After completion of statements of prosecution, the statements of accused-appellants were recorded under section 313 Cr.P.. In their statements they denied all the allegation levelled against them. 12. The appellant Shyam Lal stated in his statement that at the time of occurrence he was not present at the place of occurrence, so he raised plea of alibi and the accused appellant Jagat Pal has stated in his statement recorded under section 313 Cr.P.C. that on the date of occurrence his turn for watering to the field, but the complainant and his brothers assaulted him with lathi and Axe (kulhari), appellant exercise his right of defence to save himself he has shot fired from his licensee gun, which hit Ram Manohar and after this occurrence, he reached at the police station to lodge the FIR for injury inflicted upon him by the informant parties, but his report was not lodged. He further stated that he himself has medically examined. 13. After hearing both the parties, the learned trial court convicted the appellants as aforesaid. 14. During trial appellant no. 1 Jagat Pal reported to be no more. He further stated that he himself has medically examined. 13. After hearing both the parties, the learned trial court convicted the appellants as aforesaid. 14. During trial appellant no. 1 Jagat Pal reported to be no more. Hence the appeal against appellant no. 1 Jagat Pal was abated. 15. Only one appellant no. 2 Shyam Lal is surviving. 16. I have heard learned Sri Manvendra Singh, learned counsel for the appellant, Sri J.P. Tripathi, learned AGA for the State and perused the record. 17. Learned counsel for the appellant submitted that although the injured Ram Manohar and Jai Karan were medically examined, but the doctor, who prepared the injury reports which was not produced by the prosecution before the trial court, so the material evidence is withheld by the prosecution so the oral evidence is not corroborated by the medical evidence. He further submitted that there are material contradictions in the statements of witnesses, but the learned trial court without appreciating this fact has wrongly convicted the appellant. 18. It is also submitted that as per the allegation made in the FIR, only role of exhortation against the surviving appellant Shyam Lal was attributed, but neither active participation nor prior meeting of mind proved by the prosecution. Mere presence of the appellant in place of occurrence is not sufficient to invoke the provision of Section 34 IPC. Appellant Jagat Pal has clearly stated in his statement that he had exercise his right of private defence, but the learned trial court did not appreciate this fact and learned trial court has wrongly convicted the appellant. Due to this reason finding of trial court is totally perverse. 19. It is also submitted by learned counsel for the appellant that injured witness Jai Karan was material witness which is withheld by the prosecution and also submitted that all the public witnesses produced by the prosecution did not support the prosecution version and become hostile. 20. Learned AGA has vehemently opposed and submitted that by means of clinching evidence learned trial court also appreciated the evidence and the trial court has rightly convicted the appellant and there is no illegality and infirmity in the order passed by learned session court. 21. As no doctor was examined by the court during trial. Learned counsel for the appellant admitted the genuineness of the injury report under section 294 Cr.P.C. of injured Jai Karan Singh as Ext. 21. As no doctor was examined by the court during trial. Learned counsel for the appellant admitted the genuineness of the injury report under section 294 Cr.P.C. of injured Jai Karan Singh as Ext. Ka 7 and Ram Manohar Singh as Ext. Ka-8. 22. P.W. 1 Phool Singh has stated in his statement that when he was watering his field at the time, appellants Jagat Pal armed with licensee gun and Shyam Lal armed with lathi arrived at the place of occurrence, and when he refused for watering the field, then on the exhortation of appellant Shyam Lal, appellant Jagat Pal shot fired from his licensee gun which hit the injured Ram Manohar and Jai Karan. In his cross-examination, P.W. 1 Phool Singh clearly stated that during altercation between injured Ram Manohar and Jai Karan, appellant-accused Shyam Lal armed with lathi had assaulted the injured, meanwhile appellant Jagat Pal shot fired on him and due to this, Ram Manohar sustained injury. He next submitted in his crossexamination that although the appellant Shyam Lal was present armed with lathi at the place of occurrence, but no injury was inflicted by the appellant Shyam Lal. This fact is also affirmed by perusing the injury report Ext. Ka-7 and Ext. Ka-8. 23. One of the star injured witness Ram Manohar has stated in his statement that appellant Shyam Lal was only objected for watering of the field, but assault was not committed by him. Except this version, nothing stated against appellant Shyam Lal. 24. One of the star injured witness Jai Karan Singh was withheld by the prosecution and no good ground is assigned for non-examination of the above witness, is also adverse effect of the prosecution version. 25. P.W. 4 Dashrath, named eyewitness of the FIR has stated in his cross examination that only role of exhortation has been assigned to the appellant Shyam Lal. He has stated that Jagat Pal fired gun shot and injured assaulted to the appellant by means of lathi. 26. P.W. 4 Munni Lal, named eyewitness who declared hostile and did not support the prosecution version. 27. Other witnesses namely P.W. 5 constable Prem Shankar Pandey and P.W. 4 were also examined by prosecution as secondary witness to prove the site plan Ext Ka 7. 28. By invoking section 34 IPC, the learned trial court convicted the appellant under section 307/34 IPC . 27. Other witnesses namely P.W. 5 constable Prem Shankar Pandey and P.W. 4 were also examined by prosecution as secondary witness to prove the site plan Ext Ka 7. 28. By invoking section 34 IPC, the learned trial court convicted the appellant under section 307/34 IPC . Under Section 34 IPC reads as under:- “Section 34 in The Indian Penal Code. [34. Acts done by several persons in furtherance of common intention. —When a criminal act is done by several persons in furtherance of the common intention of all, each of such persons is liable for that act in the same manner as if it were done by him alone.]” The act has committed by any one of them is done, is of the common intention, part A prior meeting of the present participation in respect of the overt act until it cannot be said that this is common intention and crime committed by any of them in furtherance of such intention. 29. In case of Kashmira Singh vs. Stat of Punjab AIR 1994 SC 1651 , the common intention is to be inferred from the circumstances particularly the part played by the accused and the surrounding circumstances namely nature of the weapon used and the injury indicted as well as the meeting of the minds among the accused who are being held constructively liable. In Raja Gopal Swamy Konar vs. State of Tamil Nadu 1995 SCC (Cri) 184, Hon’ble Apex Court held that so far as A-2 is concerned he inflicted simple injuries with the stick on P.W. 2 and one on the deceased Ramaswamy. Therefore, common intention to kill the two deceased cannot be made out against him. 30. Case in hand injured witness has clearly stated in his statement that appellant is only with lathi but no injury of lathi is inflicted on the part of the injured by invoking section 307 read with Section 34 IPC, it cannot be said that there was common intention of the appellant to attempt murder of injured Ram Manohar 31. On perusal of the entire evidence although it may be considered that the appellant Shyam Lal was present at the place of occurrence but there is no overt act is done by the appellant. On perusal of the entire evidence although it may be considered that the appellant Shyam Lal was present at the place of occurrence but there is no overt act is done by the appellant. The trial court wrongly convicted the appellant by giving lathi blow to the injured and prosecution is not able to prove the common intention as envisaged under section 34 IPC. 32. After considering the entire evidence and perusal of the record, I am of the opinion that the prosecution is unable to prove the alleged offence under section 307/34 IPC beyond reasonable doubt against sole surviving appellant Shyam Lal. 33. The appeal is allowed. The order dated 25.02.1991 is set aside and the appellant Shyam Lal is acquitted the charge levelled against him under section 307/34 IPC. The appellant is on bail. He need not to surrender before the Court. The sureties and bail bonds are discharged. 34. The office is directed to transmit back the record of the Lower Court with a copy of judgment and order of this Court for immediate compliance.