ORDER : 1. Bohan Yadav and Sakhi Yadav were made accused in Ranka P.S. Case No. 32 of 2003 which was registered on the basis of fardbeyan of Bijay Yadav recorded on 21.04.2003 at 10:00 a.m. in Village-Pundaga. After the investigation, a charge-sheet was submitted against them and they have faced the trial on the charge under section 302 r/w section 34 and section 120-B of the Indian Penal Code. 2. In Sessions Trial No. 157 of 2003, the appellants have been convicted and sentenced to R.I. for life and fine of Rs. 1,000/- under section 302 of the Indian Penal Code. They have been acquitted of the charge under section 120-B of the Indian Penal Code. 3. During the trial, the prosecution has examined 7 witnesses, the informant is PW-6. 4. Sanjay Yadav has suffered homicidal death is proved by the medical evidence. Dr. Kaushal Sahgal PW-5, who has conducted the post-mortem examination on 21.04.2003, has found the following injuries on Sanjay Yadav: (i) An incised wound 6” x 2” cutting skin muscles of neck, vertebral column and vessels of neck-blood clot on the wound. (ii) Second incised wound 2” x 1” bone deep on the back of neck (right side). (iii) Third incised wound 6” x 2” bone deep on the left temporal region of the scalp and cutting middle of left pinna, blood clot on the wound. 5. The doctor has rendered an opinion that the injuries on Sanjay Yadav were caused by sharp-cutting weapon, such as, tangi and death was caused due to shock and hemorrhage resulting from the injury no. (i) and (iii). The time elapsed since death was 6 to 36 hours from the post-mortem examination. 6. The death of Sanjay Yadav has been caused in furtherance of common intention of the appellants is sought to be proved by the prosecution through PW-3, PW-4 and PW-6. 7. Section 34 of the Indian Penal Code embodies constructive liability of all the accused persons for the act of one or the others. In Bharwad Mepa Dana and Another vs. State of Bombay, AIR 1960 SC 289 , it has been held by the Hon’ble Supreme Court that the principle which section 34 of the Indian Penal Code embodies is participation in action with the common intention of committing a crime and once such participation is established, section 34 is at once attracted. In Bharwad Mepa Dana and Another vs. State of Bombay, AIR 1960 SC 289 , it has been held by the Hon’ble Supreme Court that the principle which section 34 of the Indian Penal Code embodies is participation in action with the common intention of committing a crime and once such participation is established, section 34 is at once attracted. But then, to rope in an accused with the aid of section 34 of the Indian Penal Code the prosecution must prove that the death has been caused in furtherance of common intention of all. 8. According to the prosecution, PW-1 and PW-2 who are the co-villagers of the informant are also the eye-witnesses, however, they have turned hostile during the trial. PW-3 and PW-6 are brothers of Sanjay Yadav and PW-4 is his father. They have claimed that they have seen the appellants participating in the occurrence in which Sanjay Yadav has died. These witnesses have spoken in unison that Bohan Yadav has inflicted three tangi blows on Sanjay Yadav. However, on participation of Sakhi Yadav in the occurrence they are completely silent. They have stated that when Sanjay Yadav was assaulted by Bohan Yadav with tangi Sakhi Yadav was also present there. In his cross-examination, PW-4 has stated that when he arrived at the place of occurrence he has seen Bohan Yadav only, who brandishing lathi has fled away. 9. Before Sakhi Yadav is roped in with the aid of section 34 of the Indian Penal Code, it must be proved that he has shared common intention with Bohan Yadav and death of Sanjay Yadav was caused in furtherance of common intention. No evidence except a bald statement by PW-3, PW-4 and PW-6 that he was present at the place of occurrence is coming forth against Sakhi Yadav and, therefore, we hold that the prosecution has failed to prove the charge under section 302/34 of the Indian Penal Code. 10. Accordingly, his conviction and sentence under section 302/34 of the Indian Penal Code in Sessions Trial No. 157 of 2003 are set-aside. 11. There are other reasons also why the charge under section 302/34 of the Indian Penal Code against Sakhi Yadav and for that matter against Bohan Yadav cannot be said to have been proved by the prosecution. On a careful examination of testimony of PW-3, PW-4 and PW-6, it transpires that none of them are eye-witnesses. 11. There are other reasons also why the charge under section 302/34 of the Indian Penal Code against Sakhi Yadav and for that matter against Bohan Yadav cannot be said to have been proved by the prosecution. On a careful examination of testimony of PW-3, PW-4 and PW-6, it transpires that none of them are eye-witnesses. PW-6 is the informant of this case. He has claimed that when the appellants have assaulted his brother he was present at the doors of Ramlal with Budhu Yadav, Rajeshwar Yadav and his father. His father has, however, stated before the police that he did not know anything. From his cross-examination, the defence has elicited that his house is not in front of the house of Ramlal. The description and location of his house and the house of Ramlal have been given in paragraph no. 17 of his cross-examination. He has gone to the place of occurrence from his house and when he has arrived there he has found Sakhi Yadav only, who according to him has fled away. From his cross-examination, it appears that he has not seen the appellants assaulting his son. He has further stated that after the occurrence he had gone home and called Bijay Yadav. If that is so, there is serious controversy whether the informant who has claimed that he has seen the occurrence was present at the house of Ramlal. 12. The defence set up by the appellants is that their village is infested with maoists who have killed Sanjay Yadav. Previously Ishwari Yadav who is brother of the informant was also killed by the extremists. The enmity between the parties, who are the agnates, is admitted by the prosecution witnesses. They have also stated that Bohan Yadav had lodged a criminal case against them for setting his house on fire. Case set-up by the appellants is that Sanjay Yadav was misbehaving with the daughter of Bohan Yadav, he had fled away with her and sexually assaulted her in respect of which a case was lodged by Bohan Yadav and that is the reason the appellants have been falsely implicated in this case. Case set-up by the appellants is that Sanjay Yadav was misbehaving with the daughter of Bohan Yadav, he had fled away with her and sexually assaulted her in respect of which a case was lodged by Bohan Yadav and that is the reason the appellants have been falsely implicated in this case. The defence has also put suggestions to PW-3, PW-4 and PW-6 that Ishwari Yadav and Sanjay Yadav were killed by the extremists on demand of ransom (rangdari) and PW-4 has admitted in his cross-examination that without good relations with the extremists it was not possible to live in the village. 13. The above being the state of affairs, we find that a serious doubt on complicity of the appellants has arisen and in the final analysis we are of the opinion that they are entitled for the benefit of doubt. 14. Accordingly, we hold that the prosecution has failed to prove the charge under section 302/34 of the Indian Penal Code against the appellants and, therefore, their conviction and sentence in Sessions Trial No. 157 of 2003 are set-aside. 15. The appellants, namely, Bohan Yadav and Sakhi Yadav are acquitted of the criminal charge framed against them in Sessions Trial No. 157 of 2003. 16. Mr. R.P. Singh, the learned APP, states that both the appellants are in custody. 17. Accordingly, the appellants, above-named, shall be set free forthwith if not wanted in connection with any other criminal case. 18. In the result, Criminal Appeal (DB) No. 877 of 2008 and Criminal Appeal (DB) No. 597 of 2008 are allowed. 19. Let the lower-court records be transmitted to the court concerned, forthwith.