JUDGMENT : Shree Chandrashekhar, J. The sole appellant has been convicted and sentenced to R.I for life and a fine of Rs. 2,000/ - under section 302 of the Indian Penal Code, with default stipulation to suffer further R.I for 3 months. 2. In S.C. No.238 of 2008 corresponding to T.R. No.56 of 2010, the appellant has faced the trial on the charge of committing murder of Bajal Murmu in prosecution of common object of the unlawful assembly. In Boarijore (Lalmatiya) P.S. Case No.26 of 2008 which was lodged on 29.02.2008, Som Soren, the appellant, was an accused alongwith Sufal Hembram, Chota Ougo Hembram, Bara Ougo Hembram, Dhubo Hembram and Kargo Soren @ Chajja Soren. The wife of Bajal Murmu gave her fardbeyan at 07:00 PM on 29.02.2008 at village Babupur on the basis of which the First Information Report was lodged under section 302/34 of the Indian Penal Code against the above-named accused. In her fardbeyan which was recorded by N.K. Sah, S.I. of Lalmatiya P.S., Talamai Marandi has stated that on 29.02.2008 she had gone to Hatia with her husband and while returning home when they reached Dorma Chowk at about 05:00 PM they saw that the accused were standing near the bicycle shop of Pradeep Pandit. Chota Dugo Hembram caught hold of her husband and pulled him down and attacked him with knife. When her injured husband fell on the ground Sufal Hembram picked up a big stone and hit her husband with the stone on his head due to which her husband breathed his last on the spot. The accused persons with an intention to kill her husband had come to her house at about two months back and when they did not find her husband at home took away her goat and they were annoyed because her husband had lodged protest to them. On completion of the investigation a charge-sheet was filed against the other accused except Som Soren and cognizance of the offence was taken by the learned Chief Judicial Magistrate, Godda vide order dated 28.06.2008. Subsequently, a supplementary charge-sheet was filed against Som Soren and vide order dated 17.11.2008 a separate charge under section 302/149 of the Indian Penal Code was framed against Som Soren. He has faced the trial separately and as noticed above was convicted for causing death of Bajal Murmu in furtherance of common intention of all. 3. Subsequently, a supplementary charge-sheet was filed against Som Soren and vide order dated 17.11.2008 a separate charge under section 302/149 of the Indian Penal Code was framed against Som Soren. He has faced the trial separately and as noticed above was convicted for causing death of Bajal Murmu in furtherance of common intention of all. 3. The prosecution has examined 12 witnesses to support the charge framed against Som Soren. PW-4-Naika Murmu who is uncle of the deceased, PW-6-Baran Murmu, PW-9-Baranvas Marandi and PW-11-Manadhan Marandi who is brother-in-law of the deceased were projected by the prosecution as eyewitnesses. PW -5, Dr. Pradeep Kumar Sinha who conducted the postmortem examination has found five injuries all grievous and antemortem in nature on the dead body of Bajal Murmu. PW-2-Shankar Pandit and PW-3-Jagdish Pandit did not support the prosecution during the trial and they were declared hostile. PW -7 is the Chawkidar who had brought dead body of the deceased for postmortem examination at Sadar Hospital, Godda and PW-8 as well as PW-10 are the hearsay witnesses. N.K. Sah, who recorded the fardbeyan of Talamai Marandi was not produced during the trial and PW -12 who is the second investigating officer in the case submitted chargesheet against the accused and proved the fardbeyan in the Court which was marked as exhibit-2 in the trial. 4. The learned Additional District and Sessions Judge, FTC- V, Godda has held that Bajal Murmu died a homicidal death was proved and the medical evidence fully corroborates the cause of death as stated by the prosecution witnesses. The learned trial Judge has further held that murder of Bajal Murmu was committed in furtherance of common intention of all and, therefore, Som Soren was also liable to be convicted with the aid of section 34 of the Indian Penal Code. 5. The relevant portions of the discussion by the learned trial Judge in the judgment under challenge are extracted below: “9. The learned counsel for the defence argued that there is no specific allegation against this accused and there is only allegation that he was present along with others accused persons at the P. O. The learned counsel for defence argued that this accused has been falsely implicated in this case due to enmity. It was also argued that the witnesses examined in this case are interested and no reliance can be placed on their testimonies. It was also argued that the witnesses examined in this case are interested and no reliance can be placed on their testimonies. On the other hand) the learned Addl. PP argued that the prosecution has been succeeded to prove the charge against the accused beyond the shadow of reasonable doubts. The learned Addl. PP argued that there is sufficient evidence on the record that this accused along with others caught hold the informant who was coming by his bicycle and they assaulted him then the accused Chota Dugo inflicted injury by knife and the accused Sufal Hembrom dropped a big stone piece on the head of the deceased and the deceased Bajal Murmu died due to this fatal blow. Thus) there is sufficient evidence on record to show that this accused along with others committed murder of the deceased in furtherance of common intention of all and he has committed the offence by virtue of section 34 of the IPC. IO. From perusal of the evidence of PW-10 Dr. Pradeep Kr. Sinha it is quite clear that the deceased Bajal Murmu died on account of homicidal violence. The medical officer has stated that the injury no.1 was caused by hard and blunt substance and other injuries were caused by sharp cutting weapons. According to the prosecution case the accused Chota Dugo, inflicted injury by knife and the accused Sufal Hembrum dropped a big piece of stone on the head of the deceased and the deceased died on the spot. The medical evidence fully corroborates the cause of death and injury stated by the prosecution. PW-1 Talamai Marandi is none else rather she is the wife of the deceased and she was accompanying her husband at the time of occurrence. She was also coming back from Hatia along with her husband on his bicycle. Thus, I do not find any reason to disbelieve her testimony. Other witnesses have also supported the prosecution case and there is sufficient evidence on record to show that while the deceased Bajal Murmu was coming by his bicycle from Hatia along with his wife Talamai Marandi (informant) this accused along with others assaulted him and then accused Chota Dugo Hembrum inflicted injury by knife and Sufal Hembrum threw a big piece of stone on his head by which he succumbed to injury on the spot. Though, I find that the charge has been framed against this accused u/ s 302/149 of the IPC but I find that this accused was present at the scene and he assaulted the deceased and murder was committed in furtherance of common intention of all. The presence of this accused at the scene has been fully supported by the prosecution evidence. The informant has clearly stated that accused Chota Dugo Hembrum caught hold the bicycle of her husband and he pulled him from his bicycle then this accused also assaulted him at the P. O. Thus, I am of the view that the murder of the deceased was committed in furtherance of common intention of all and this accused is also equally liable by virtue of section 34 of the IPC. 11. On the basis of aforesaid discussion of the fact, circumstances and nature of the offence, I am of the view that the prosecution has been succeeded to prove that on the relevant day, time and place of the occurrence this accused along with others committed murder of the deceased Bajal Murmu in furtherance of common intention of all. In the result, for the reason stated above, I hold and find that the accused Som Soren is guilty for the offence u/ s 302/34 of the IPC and he is convicted accordingly.” 6. Mr. Aman Shekhar, the learned counsel for the appellant has argued with the help of the judgments in “Chellappa v. State" (2020) 2 SCC (Cri) 887 and “Bikash Bora v. State of Assam” (2019) 4 SCC 280 that the prosecution evidence is not sufficient to conclude that Som Soren shared common intention with others, particularly Chota Dugo Hembram and Sufal Hembram, to commit murder of Bajal Murmu, and the prosecution has failed to establish that death of Bajal Murmu was caused in furtherance of common intention of all. 7. PW -1 the informant has narrated the occurrence In the Court in a similar manner as described by her in her fardbeyan. She has stated about her visit to Hatia on 29.02.2008 with her husband. In the evening at about 05:00 PM she was returning home with her husband on a bicycle and when they reached near the bicycle shop of Pradeep Pandit, Chota Dugo Hembram apprehended her husband and pulled him down. She has stated about her visit to Hatia on 29.02.2008 with her husband. In the evening at about 05:00 PM she was returning home with her husband on a bicycle and when they reached near the bicycle shop of Pradeep Pandit, Chota Dugo Hembram apprehended her husband and pulled him down. She has made specific allegations of assault by Chota Dugo Hembram with a knife and Sufal Hembram throwing a stone on the head of her husband. She has named six persons including the appellant who were present near the bicycle shop of Pradeep Pandit who according to her had also assaulted her husband. PW-4 is another eyewitness who has stated about presence of the appellant at the place of occurrence and he has made a specific allegation that all the accused had pulled down Bajal Murmu on the ground. PW-6 has stated in the Court that at about 05:00 PM in the evening he was at Dorma Chowk. He lives at a distance of about 1 11/2 KM and admits in his cross-examination that at Dorma he did not meet Talamai Marandi and her husband. From his testimony, we find it doubtful that he has actually seen the assault upon Bajal Murmu. PW-9 has also made a general statement that all the accused had assaulted Bajal Murmu. PW-10 has admitted in his cross-examination that at the time of the occurrence he was at Hatia, though in the later part of his cross-examination he has tried to indicate that he had arrived at Dorma Chowk at the time of occurrence. PW -11 who has admitted In his cross-examination that on hulla he had gone to the place of occurrence is also not a witness how Bajal Murmu was assaulted. 8. However from the evidence of the prosecution witnesses, presence of Sam Soren along with other accused near the bicycle shop of Pradeep Pandit is established. 9. Three accused, namely, Chota Dugo Hembram, Bara Dugo Hembram and Sufal Hembram were convicted under section 302/34 of the Indian Penal Code in S.C. No. 172 of 2008 and these prosecution witnesses have tendered similar evidence against the accused. Looking at their evidence in S.C. No. 172 of 2008, we have held that the prosecution has failed to establish complicity of Bara Dugo Hembram in the crime in any manner whatsoever. In paragraph no. Looking at their evidence in S.C. No. 172 of 2008, we have held that the prosecution has failed to establish complicity of Bara Dugo Hembram in the crime in any manner whatsoever. In paragraph no. 12 of the judgment in Criminal Appeal (DB) No. 481 of 2011, we have dealt with the evidence laid by the prosecution in S.C. No. 172 of 2008 in the following manner: “12. The prosecution has laid evidence that Chota Dugo Hembram caught hold of Bajal Murmu and dragged him from the bicycle. He is the one who has started assaulting him with knife and after Bajal Murmu fell on the ground Sufal Hembram threw a stone on his head. The witnesses have made general and omnibus statement about other accused assaulting Bajal Murmu. None of the witnesses has stated that except Chota Dugo Hembram other accused were also carrying any weapon. Besides him and except as regards Sufal Hembram, the witnesses are completely silent whether any other accused has played a specific role in the occurrence. There is specific allegation against Sufal Hembram and Chota Dugo Hembram that they have assaulted Bajal Murmu with stone and knife, but the prosecution evidence is not sufficient to hold that they also shared common intention to murder Bajal Murmu. We are of the definite opinion that death of Bajal Murmu was not caused in prosecution of the common intention of all. On the evidence laid by the prosecution during trial, the accused are liable for their individual act(s). Section 38 of the Indian Penal Code provides that several persons engaged or concerned in the commission of a criminal act may be guilty of different offences by means of that act. The statutory illustration to Section 38 makes it more than clear that several persons may share same or similar intention, still, they may not have common intention in furtherance of which the final act was accomplished. This is not the prosecution evidence that after Bajal Murmu was caught hold of by Chota Dugo Hembram he tried to flee away and then others have also chased him. The prosecution has brought evidence on motive through the informant that about two months back the accused took away her goat and her husband had made a complaint in this regard, but there is no other evidence to support the prosecution on his point. The prosecution has brought evidence on motive through the informant that about two months back the accused took away her goat and her husband had made a complaint in this regard, but there is no other evidence to support the prosecution on his point. The motive as spoken by the informant is too weak and slender to motivate the other accused to commit murder of Bajal Murmu. In our opinion, the prosecution evidence does not implicate Bara Dugo Hembram in commission of the crime. There is no evidence that he shared common intention to murder Bajal Murmu. His presence near the bicycle shop of Pradeep Pandit and notwithstanding the witnesses making a statement that all the accused started assaulting Bajal Murmu, we find that the prosecution evidence is not sufficient to infer his complicity in the crime in any manner whatsoever.” 10. Mr. Aman Shekhar, the learned counsel for the appellant would contend that like Bara Dugo Hembram the prosecution has failed to establish that Som Soren shared common intention with Chota Dugo Hembram to cause death of Bajal Murmu. The trials in S.C. No. 172 of 2008 and S.C. No. 238 of 2008 were conducted simultaneously but separately and the evidences led by the prosecution in S.C. No. 172 of 2008 were not brought on record when S.C. No. 238 of 2008 was in progress and the prosecution witnesses were not confronted with their previous statement in the other trial so as to elicit any inconsistency in their deposition in both the trials. However, we find that in S.C. No. 238 of 2008 also the prosecution witnesses have not made any specific allegation of assault by Som Soren. As we have already noted hereinabove, PW -1 has stated that all the accused started assaulting her husband and PW-4 has stated that all the accused pulled down Bajal Murmu on the ground. But in their testimony the other witnesses have not made such attributions to Som Soren. The allegation that all the accused have assaulted Bajal Murmu is not supported by the medical evidence in as much as the head injury is attributable to Sufal Hembram and four sharp cut injuries were alleged to have been caused by Chota Dugo Hembram and there is no other injury found on the person of Bajal Murmu. 11. PW -5- Dr. 11. PW -5- Dr. Pradeep Kumar Sinha who has conducted the postmortem examination has found the following injuries on the dead body of Bajal Murmu: (i) Bruise 3"x 2" over frontal scalp with fracture of frontal bone. (ii) Sharp cut 1 "x 1/2 x 1/2" over right side of upper part of neck. (iii) Sharp cut over ocipital region of scalp 2"x 1/4" x 1/4". (iv) Sharp cut 1 "x 1/2"x 1/2 over left side of upper part of face. (v) Sharp cut 3" x 2" x 3" over left side of lower part of neck including muscle and blood vessels. 12. This is not the prosecution evidence that besides Chota Dugo Hembram other accused have also assaulted Bajal Murmu with a knife. This is also not the prosecution evidence that Som Soren has played any role In accomplishing the final act, that is, murder of Bajal Murmu and there is no material on record to even infer that Som Soren shared common intention with the others to cause death of Bajal Murmu. In “Bikash Bora” for want of clinching evidence on complicity of three accused they were extended benefit of doubt and their conviction recorded with the aid of section 34 of the Indian Penal Code was set-aside. In “Chellappa” the Hon'ble Supreme Court has held that before a person can be found guilty with the help of section 34 it must be established that there was a common intention and the persons being sought to be held liable must have participated in the crime for accomplishing the final act. In paragraph no. 9 of the reported judgment, the Hon'ble Supreme Court has held as under : “9. It must be noted that Section 34 IPC is not a substantive offence. Before a person can be held responsible under this section, it must be established that there was a common intention and the person being sought to be held liable must have participated in some manner in the act constituting the offence. The common intention shared by the accused should be anterior in time to the commission of the offence, but may develop on the spot when the crime is committed (see Virendra Singh v. State of M.P.). The common intention shared by the accused should be anterior in time to the commission of the offence, but may develop on the spot when the crime is committed (see Virendra Singh v. State of M.P.). However} from a perusal of the impugned High Court judgment} as well as the submissions of the prosecution} it is clear that no reasoning or evidence has been advanced as to the fulfilment of the requirements for the conviction of the appellant-accused under Section 34 IPC in the present case.” 13. Mr. Manoj Kumar Mishra, the learned APP has strenuously argued that once presence of Som Soren is established at the place of occurrence and some of the witnesses have stated about some role played by other accused, the conviction of Som Soren with the aid of section 34 of the Indian Penal Code must be held well founded. But in view of the scanty nature of the evidence of the prosecution witnesses on participation of the accused in the occurrence and the medical evidence not supporting the ocular evidence in so far allegation of assault upon Bajal Murmu by the other accused is concerned, we are unable to agree with the learned APP. The facts proved by the prosecution in S.C. No. 238 of 2008 do not establish that death of Bajal Murmu was caused In furtherance of common intention to commit his murder. 14. Having minutely scrutinised the materials on record, we come to a conclusion that the prosecution has failed to establish that Som Soren has played any role in furtherance of the common intention of all to commit murder of Bajal Murmu. Notwithstanding some of the witnesses deposing in the Court about participation of all the accused in the occurrence, we hold that the prosecution has failed to prove the charge framed against Som Soren in S.C. No. 238 of 2008 and, accordingly, his conviction under section 302/34 of the Indian Penal Code is set-aside. 15. Mr. Manoj Kumar Mishra, the learned APP states that Som Soren is on bail. 16. Accordingly, Som Soren who is on bail shall be discharged of liability of the bail bonds furnished by him. 17. Criminal Appeal (DB) No. 447 of 2011 is allowed. 18. We appreciate the able assistance by Mr. Aman Shekhar, the learned counsel for the appellant and Mr. Manoj Kumar Mishra, the learned APP. 19. 16. Accordingly, Som Soren who is on bail shall be discharged of liability of the bail bonds furnished by him. 17. Criminal Appeal (DB) No. 447 of 2011 is allowed. 18. We appreciate the able assistance by Mr. Aman Shekhar, the learned counsel for the appellant and Mr. Manoj Kumar Mishra, the learned APP. 19. Let the lower Court records be sent to the Court concerned forthwith. 20. Let a copy of the judgment be transmitted to the Court concerned and the concerned Jail Superintendent through FAX.