JUDGMENT : Renu Agarwal, J. 1. The present criminal appeals have been preferred against judgment and order dated 10.08.2005 passed by the Additional Sessions Judge Fast Track Court No. 1, Sitapur in Sessions Trial No. 236 of 1999 whereby the appellants Ram Khelawan alias Bhagtu and Santosh have been convicted under Section 302 read with Section 34 IPC and sentenced to undergo imprisonment for life and to pay fine of Rs.5,000/- and in default of payment of fine to further undergo imprisonment for two months. 2. Wrapping the facts in brief, the brother of complainant was operator in Irrigation Department. He went to operate canal on 03.12.1998 at about 9 p.m. carrying his licensed gun with him along with the complainant and Shri Ram. As soon as the complainant, his brother Krishan Kumar (deceased) and Shri Ram reached nearby Dev Sthan in the village accused Mishri Lal, Santosh and Ram Khelawan surrounded them and shot fired at Krishan Kumar. The fire hit on the left side of abdomen of Krishan Kumar and he fell down. 3. When the deceased raised alarm, the witnesses Jai Kumar, Ashok and other villagers reached at the place of occurrence and the appellants took to their heels towards north of the village snatching the licensed gun of Krishan Kumar. The accused were identified in the moon lit light. Cartridge belt and cycle of Krishan Kumar were lying at the spot. The complainant and Shri Ram carried the injured to the district hospital, Sitapur with the help of villagers. 4. The FIR indicates that Mishri Lal and Krishna Kumar had altercation and hot exchanges few days ago and due to this animosity this incident took place. On the basis of written report FIR was lodged at Police Station Khairabad district Sitapur under Section 302/34 and 394 IPC and the same was endorsed in G.D No. 2 on 04.12.1998. A copy of chik report and GD were sent by Constable 839 Krishan Pal to Station House Officer Ajai Kumar Singh who inspected the spot, prepared site plan on the same date i.e. on 04.12.1998, collected the plain and blood stained earth, cartridges belt and bicycle of the deceased and prepared recovery memo thereof. 5. The injured Krishan Kumar was referred to K.G.M.C, Lucknow by district hospital, Sitapur and was further referred to Seva Hospital and Research Institute, Lucknow. 5. The injured Krishan Kumar was referred to K.G.M.C, Lucknow by district hospital, Sitapur and was further referred to Seva Hospital and Research Institute, Lucknow. He was admitted in Seva Hospital and Research Institute on 01.01.1999 where he died on 12.01.1999 at about 08:40 a.m. The inquest of the deceased was conducted by S.I. Neelam Bisht on 12.01.1999 and dead body was sent for autopsy along with necessary papers, photo nash, challan nash, letter to CMO and R.I. Sample Seal, etc. 6. Autopsy was conducted by Dr. V.K. Mishra on the same date i.e. on 12.01.1999 at the mortuary of K.G.M.C, Lucknow. On the basis of death report of the deceased the case was converted into Section 302, 304 IPC from 307, 304 IPC. 7. Investigating officer recorded the statement of complainant and witnesses under Section 161 Cr.PC and after collecting sufficient evidences submitted charge-sheet in court. After taking cognizance of the case, the Chief Judicial Magistrate, Sitapur committed the case to the Court of Sessions. The Court of Sessions, Sitapur framed charges against the accused under Section 302 read with 34 IPC and under Section 394 IPC. The accused abjured from the charges and claimed to be tried. 8. In order to prove the case the prosecution adduced the following witnesses : 1. P.W.-1 Shri Ram; 2. P.W.-2 Ashok Kumar (Eye-witness) 3. P.W.-3 Anoop Kumar who proved Ex ka-1 4. P.W-4 Ajai Kumar Singh the investigating Officer. 5. P.W.-5 Constable 389 Sanjay Singh who proved the chik FIR, GD. 9. Besides ocular evidence the prosecution relied upon following documentary evidences : 1. Written report (Ex. Ka-1). 2. Site Plan ( Ex. Ka-2). 3. Recovery memo of plain and stained earth (Ex.Ka-3). 4.Cartridge belt (Ex.Ka-4 ). 5. Recovery memo of cycle of deceased (Ex.Ka-5). 6. Statement of Krishan Kumar (now deceased) under Section 161 Cr.P.C (Ex.ka-6). 7. Recovery memo of gun (Ex. Ka-7). 8. Recovery memo of clothes of deceased (Ex. Ka-8 ). 9. Charge-sheet (Ex. Ka-9 ). 10. Chik FIR (Ex. Ka-10). 11. G.D No. 20 dated 04.12.1998 (Ex Ka-11). 12. Death Certificate of Krishan Kumar (Ex. Ka-12) 13. Inquest report (Ex. Ka-13) 14. Challan Nash (Ex Ka-14). 15. Photo Nash (Ex. Ka-15). 16. Seal (Ex. Ka-16). 17. Letter to C.M.O (Ex. Ka-17). 18. Postmortem report (Ex Ka-18) 10. Ka-8 ). 9. Charge-sheet (Ex. Ka-9 ). 10. Chik FIR (Ex. Ka-10). 11. G.D No. 20 dated 04.12.1998 (Ex Ka-11). 12. Death Certificate of Krishan Kumar (Ex. Ka-12) 13. Inquest report (Ex. Ka-13) 14. Challan Nash (Ex Ka-14). 15. Photo Nash (Ex. Ka-15). 16. Seal (Ex. Ka-16). 17. Letter to C.M.O (Ex. Ka-17). 18. Postmortem report (Ex Ka-18) 10. It is pertinent to mention here that genuineness of the formal papers has been admitted by the learned counsel for the accused before the trial court, hence, no formal witness was summoned by trial court to prove them. 11. After the conclusion of the prosecution witnesses, statements of accused were recorded under Section 313 Cr.P.C. The accused stated that they were falsely implicated in the case. It was also stated in their statements that the investigating Officer recorded the statement of Krishan Kumar without the permission of doctor and the statement is not signed by Krishan Kumar. 12. Learned trial court after perusal of the evidence concluded that all the accused in furtherance of common intention assaulted the deceased Krishan Kumar. Mishri Lal fired shot directly at the abdomen and the deceased died of shock and hemorrhage due to ante mortem injuries. The accused Mishri Lal had snatched the gun of Krishan Kumar and therefore, the accused Mishri Lal was convicted under Sections 302, 394 IPC further the accused Santosh and Ram Khilawan were convicted under Section 302 read with 34 IPC, Santosh and Ram Khilawan were acquitted of the charges under Section 394 IPC. 13. Aggrieved with the judgment and order dated 10.08.2005 the present appeals have been filed. It also transpires from the order sheet of Criminal Appeal No. 1100 of 2005 that the appeal in respect of accused Mishri Lal had already been disposed of by a Coordinate Bench of this Court vide judgment and order dated 08.06.2017 after delinking the present appeals with that of the co-accused Mishri Lal since the appellants in the present appeals were absconding. 14. Heard Shri Vinod Kumar Singh, learned counsel for the appellants, Shri Umesh Chandra Verma, learned A.G.A for the State and perused the record. 15. Learned counsel for the appellants argued that the impugned judgment and order of the trial court is illegal, unjust and improper and medical evidence is not supporting the prosecution story. There are major contradictions in the testimony of witnesses. 15. Learned counsel for the appellants argued that the impugned judgment and order of the trial court is illegal, unjust and improper and medical evidence is not supporting the prosecution story. There are major contradictions in the testimony of witnesses. P.W.-2 is not eye-witnesses of the incident and natural and independent witnesses were not produced by the prosecution before the trial court, the incident took place in late night and the identification of actual assailant is difficult. There is no motive for commission of the crime. The appellants are innocent, therefore, the prayer for acquittal and setting aside the judgment of the trial court has been made. 16. Per contra, learned A.G.A has vehemently opposed the arguments advanced by learned counsel for the appellants and submitted that the case is based on eye-witnesses account. Shiv Kumar, the real brother of the deceased and one Shri Ram are the eye-witnesses of the incident. Shiv Kumar could not be produced in the Court as he has expired. However witness Shri Ram was adduced as P.W.-1. All the prosecution witnesses proved the incident beyond reasonable doubt and the genuineness of papers were admitted before the trial court. As per post-mortem report cause of death is shock and hemorrhage due to ante mortem injuries, therefore, a prayer for dismissal of the appeal has been made by the learned A.G.A. 17. Before dealing with the merits of the case, it is desirable to recapitulate the statements of witnesses in brief. 18. P.W.-1 stated on oath that the deceased and he were daily wages employees and about six years ago Krishan Kumar (deceased) along with complainant and Shri Ram was going to operate canal pump. When they reached Adanobabu Deva Sthan the accused Mishri Lal, having country made pistol in his hand along with other co-accused namely, Ram Khelawan and Santosh came and Mishri Lal fired shot at the deceased. The deceased fell down immediately and sustained injuries on left side of the abdomen. Mishri Lal snatched the licensed gun of Krishan Kumar and fled away. The complainant and Shri Ram carried Krishan Kumar to District Hospital, Sitapur later on Krishan Kumar died in Lucknow. It is also deposed that the deceased had previous animosity with Mishri Lal on account of his illicit relationship with a teacher belonging to chidimar caste. 19. Mishri Lal snatched the licensed gun of Krishan Kumar and fled away. The complainant and Shri Ram carried Krishan Kumar to District Hospital, Sitapur later on Krishan Kumar died in Lucknow. It is also deposed that the deceased had previous animosity with Mishri Lal on account of his illicit relationship with a teacher belonging to chidimar caste. 19. P.W.-2 Ashok Kumar deposed that the deceased was his real brother who was shot dead by Mishri Lal on 03.12.1998 and died later on due to injuries sustained by him in the incident. It is also deposed that he went to irrigate his field when he heard the sound of firearm, he along with Jai Kumar reached the place of occurrence and saw Mishri Lal, Santosh and Ram Khelawan running towards north. Mishri Lal was having gun in his hand. There was altercation between Mishri Lal and his brother (deceased) regarding affair with a lady. 20. P.W.-3 Anoop Kumar appeared and stated on oath that the deceased Krishan Kumar was his uncle. The witness proved written report and stated that he noted down the FIR (Ex-Ka-1) on the dictation of his uncle Shiv Kumar. 21. P.W.-4 Ajay Kumar stated on oath that he was posted as Station Officer Police Station Khairabad. The case was registered in his absence. The investigation of the case was taken over by him on the same date. He received chik and G.D when he was present at the State Highway. He started preparing case diary, recorded the statement of Shiv Kumar and search the accused on the same day. He could not inspect the place of occurrence due to darkness of night and in the morning he visited the site and prepared site plan and proved the same as Ex. Ka-2. He collected blood stained and plain earth and pebbles (gitti) and sealed and survey them at the spot and prepared recovery memo. He collected blood stained belt of cartridges and prepared recovery memo thereof and proved them in court as Ex-Ka-4. 22. The investigating officer took the cycle of deceased Krishan Kumar from Shiv Kumar and prepared recovery memo and handed over again to Shiv Kumar, prepared supurdigi which is in his hand writing and signed by him and proved as Ex. Ka-5. 22. The investigating officer took the cycle of deceased Krishan Kumar from Shiv Kumar and prepared recovery memo and handed over again to Shiv Kumar, prepared supurdigi which is in his hand writing and signed by him and proved as Ex. Ka-5. During the visit on the place of occurrence witness Shiv Kumar and Jai Kumar reached there and he recorded the statement of witnesses at the place of occurrence. He searched the house of the accused on different dates and arrested the accused Santosh on 8.12.1998 and recorded his statement. In the meantime accused Mishri Lal and Ram Khelawan surrendered in the Court and with the permission of the court he recorded the statement of accused Mishri Lal and Ram Khelawan in jail. 23. He recorded the statement of Krishan Kumar on 17.12.1998 in medical college, Lucknow. Krishan Kumar was fully conscious and well oriented. He proved the statement of deceased in Court as Ex. Ka-6. It is also stated that he received order of police custody/ remand of accused Mishri Lal but nothing could be recovered from him. He recovered clothes of deceased and prepared recovery memo Ex. Ka-8. He was thereafter transferred and charge-sheet was submitted by Station Officer which was proved by P.W.-4. After the death of Krishan Kumar the case was converted under Section 302 IPC. 24. P.W.-5 Constable 389 Sanjay Singh stated on oath that complainant Shiv Kumar brought written report (Ex.Ka-1) to the police station and on the basis of this written report he registered Case Crime No. 291 of 1998 under Sections 307/ 394 IPC against Mishri Lal, Santosh and Ram Khlawan. The witness proved Chick report (Ex. Ka-10) and carbon copy of G.D Ex-ka-11. No other witness was adduced in the Court and the genuineness of papers were admitted. 25. It transpires from the FIR itself that all the three assailants Mishri Lal, Santosh and Ram Khelawan surrounded the deceased Krishan Kumar and Mishri Lal shot fired at him. The FIR does not assign any role to accused Santosh and Ram Khilawan except surrounding the deceased. Main role is assigned to Mishri Lal whose case has already been decided by a co-ordinate Bench of this Court vide judgment dated 08.07.2017 passed in Criminal Appeal No. 1190 of 2005. We have perused the above judgment also. The FIR does not assign any role to accused Santosh and Ram Khilawan except surrounding the deceased. Main role is assigned to Mishri Lal whose case has already been decided by a co-ordinate Bench of this Court vide judgment dated 08.07.2017 passed in Criminal Appeal No. 1190 of 2005. We have perused the above judgment also. In the said judgment a Co-ordinate Bench of this Court reached to the conclusion that “…..in the facts and circumstances of the case and the injuries sustained by (deceased) at the relevant time and the manner in which the original accused had caused the injury, who died subsequently after about thirty nine days, it cannot be said that a case is made out under Section 302 of the Indian Penal Code. From the entire evidence on record and the surrounding circumstances which lead the accused to commit the offence and / or caused injury on the deceased which ultimately proved to be fatal, we are of the opinion that it cannot be said that the case would fall under Section 299 or 300 of the IPC……” 26. It was further held that “on the touch stone of aforementioned decision and on the basis of the latest decision of Apex Court in the case of Sanjay Vs. State of U.P. and in this case also the prosecution did not elicited by prosecution from doctor treating deceased, that such injury was sufficient in the ordinary course of nature to cause death. Hence, it appears that the prosecution has not got home the charge under Section 300 of Indian Penal Code but in the instant case as a death occurred after so many days of occurrence due to septicaemia but was indirectly due to injuries sustained by the accused. The deceased was stable when he was first discharged from the hospital and thus, intended enough injury cannot be said to be sufficient in ordinary course of nature to cause death so as to attract S. 300 IPC…..” The Co-ordinate Bench held Mishri Lal guilty of offence punishable under Section 304 Part-I IPC. 27. The accused Mishri Lal was also acquitted of the offence under Section 394 IPC as no recovery was made from his possession. 28. 27. The accused Mishri Lal was also acquitted of the offence under Section 394 IPC as no recovery was made from his possession. 28. Now coming to this case Mishri lal was the main assailant who was not convicted under Section 302 IPC and his case was put in the limit of Section 304 Part-I IPC. Now when we take up the case of Santosh and Ram Khelawan there is no evidence to this effect that they were carrying any weapons in their hands. They are not alleged of assaulting the deceased and no role is assigned to them except of surrounding the deceased who was shot dead by Mishri Lal. 29. So far as the motive is concerned, no motive is disclosed in the FIR. It is stated that some altercation took place between Mishri Lal and the deceased but it is not stated in the FIR or in the statement of witnesses on oath so as to show the reason of altercation more so the altercation did not took place with present appellants. No prior dispute was mentioned. Hence, no allegation are shown against these two appellants. 30. The injuries sustained by the deceased are as follows : (1) Septic wound 2.5 cm X 2.5. cm X muscle deep on right side back of chest 5 cm below inferior angle right scapula. (2) Septic wound 2 cm x 2 cm x skin deep present on right side mid of back 6 cm below injury No. 1. (3) Septic wound (Bed sore) 9 cm X 7 cm in the middle of back. (4) Septic wound 3 cm x 3cm x abdomen cavity deep present on outer aspect iliac crest left side of abdomen 7 cm above left iliac crest, on opening Pus slough debris and granulative tissue present on wounds noted above. Healed scar mark present on front of abdomen at mid line. 31. On opening :-spleen was found ruptured and about 500 ml pus mix blood present in abdominal cavity. 32. Learned counsel for the appellant argued that as per postmortem report no gun shot injury was found on the body of the deceased. The death of the deceased was caused due to septicemia as a result of anti mortem injury. In the death certificate also it is indicated that the deceased was admitted in hospital on 01.01.1999 at 6 p.m. under the treatment of Dr. The death of the deceased was caused due to septicemia as a result of anti mortem injury. In the death certificate also it is indicated that the deceased was admitted in hospital on 01.01.1999 at 6 p.m. under the treatment of Dr. Neeraj Arora as a result of old gunshot injury (abdoman & spine) with paraplegia with dyselectrolytemia with B/L pneumonia. In both the reports it is not indicated or any mention is made of the gun shot injuries found on the body of the deceased. 33. According to the prosecution case the deceased was admitted initially in District Hospital, Sitapur wherefrom he was referred to KGMC but prosecution did not adduce medical report of District Hospital, Sitapur which may be very important to prove the injuries sustained by the deceased. Nor the medical papers of KGMC were produced during investigation or during trial. Report of Sewa Hospital indicate that injured was admitted for treatment as the result of gun shot injury. But as per prosecution version Mishri Lal shot fired at deceased. 34. In the FIR names of appellants Santosh and Ram Khelawan are indicated but they are not stated to have firearm in their hands. Even witness did not state in their statements under Section 161 Cr.P.C that appellants Ram Khelawan and Santosh have firearm in their hands which for the first time came to light in the trial when the witness stated that all the three accused were having firearm (tamancha) in their hands. The fact is developed later on which appears to be a concocted story. In oral statement also none of the witness stated that all the three person shot fired upon any of the person. 35. Learned Trial Court did not pay any heed to this fact that role of appellants Ram Khelawan and Santosh is nowhere explained neither in the FIR nor in the statements under Section 161 Cr.P.C and it was developed, for the first time, in the trial. 36. According to the FIR no motive was assigned to the appellants. It is only stated that there was an altercation between Mishri Lal and the deceased. In the statement recorded under Section 161 Cr.PC none of the witnesses assigned any motive to the present appellants. 36. According to the FIR no motive was assigned to the appellants. It is only stated that there was an altercation between Mishri Lal and the deceased. In the statement recorded under Section 161 Cr.PC none of the witnesses assigned any motive to the present appellants. No motive was assigned to Mishri Lal in the statement under Section 161 Cr.P.C. Motive is developed later on when Mishri Lal in his statement recorded in trial court had stated that there was some dispute between Mishri Lal and the deceased regarding lady teacher. Therefore, there is lack of motive against the present appellants. According to the prosecution case Mishri Lal, snatched the licensed gun of the deceased but that too was not recovered from the possession of Mishri Lal however he was taken into police custody/ remand by the Investigating Officer. 37. Learned trial court ignored this fact that there was no allegation of snatching the licensed gun against the present appellants. 38. The trial court convicted all the three appellants only on the ground that according to the FIR all the three persons with the intention to to kill the deceased where hiding behind the bushes. Merely hiding behind the bushes or presence at the spot is not sufficient ground to convict the appellants for the offence. 39. In Damodhar Vs. State of U.P. Hon’ble Supreme Court (2005) 1 SCC 543 held that mere fact that the appellants exhorted his companion to fire at the deceased is not sufficient for application of Section 34 IPC. It was sought to be contended that there was not prior meeting of mind. In Sher Singh Vs. State of Rajasthan MANU/RH/0598/1989, it was held by Rajasthan High Court that it is only from the circumstances arising in a given case from which an inference is to be drawn whether there was common intention and the offence was committed in furtherance of that common intention. The mere presence of one is not sufficient to make him liable under Section 34 IPC until and unless it is established that his presence was on account of his sharing the common intention along with the other culprits. 40. The mere presence of one is not sufficient to make him liable under Section 34 IPC until and unless it is established that his presence was on account of his sharing the common intention along with the other culprits. 40. In the present case, the presence of all the appellants are shown at the place of occurrence and they are named as co-accused but they were not shown armed with any weapons in their hands nor have caused any injury to complainant or deceased. Their mere presence on the scene of occurrence is not sufficient to invoke Section 34 IPC. Learned trial court did not pay any heed to this fact that no allegation of any kind is levelled against the present appellants except that the appellant surrounded the deceased who was killed by Mishri Lal. No role of exhortation is alleged against them. Therefore the judgment and order passed by the trial court is based on more presumption if they were present on the spot they must have shared intention with the main accused. 41. Learned trial court did not consider the fact that no allegation in the FIR was made against the present appellants Ram Khelawan and Santosh. No evidence under Section 161 Cr.P.C was adduced against them. The case was developed later on during the course of trial. No motive was assigned to the present appellants in the FIR or during trial. 42. In the light of the above discussion, the appeal is allowed. The impugned judgment and order dated 10.08.2005 passed by the Additional Sessions Judge, Fast Track, Court No.1, Sitapur in Sessions Trial No. 236 of 1999 is hereby set-aside. 43. The appellants, Ram Khelawan alias Bhagtu and Santosh, are stated to be in jail. They shall be released forthwith unless wanted in any other criminal case. 44. Having been acquitted by this Court in the above noted case, the appellants shall furnish bail bonds with sureties to the satisfaction of the court concerned in terms of provision of Section 437-A Cr.P.C. 45. Let a copy of this judgment and order as well as records of the trial court be transmitted to the trial court concerned forthwith for necessary information and compliance of this order.