JUDGMENT : Rajani Dubey, J. Both the appeals are being decided by this common judgment as these appeals arise out of the judgment of conviction and order of sentence dated 27.11.2019 passed by learned II Additional Sessions Judge, Durg in ST No.28/2016 whereby the appellants stand convicted and sentenced as under : Conviction Appellant - Kamal Sahu Sentence Under Section 302 of IPC. Life imprisonment, pay a of Rs.1,000/- and in default thereof to suffer additional RI for 01 year. Under Sections 25 & 27 of the Arms Act. RI for three years, pay a fine of Rs.500/- on each count and in default thereof to suffer additional RI for 03-03 months. Appellant - Narshing Verma Under Section 302 of IPC. Life imprisonment, pay a of Rs.1,000/- and in default thereof to suffer additional RI for 01 year. 2. Case of the prosecution, in brief, is that on 9.11.2015 at around 8 pm Damendra Sahu and Suraj Sahu were going by motorcycle towards Power House for purchasing clothes. The motorcycle was being ridden by Suraj Sahu. When they reached near Sheetla Pond, the appellants came there by motorcycle, intercepted them and started filthily abusing them. When Suraj Sahu objected to it, appellant Narshing Verma provoked appellant Bawander to assault him as he would do hooliganism in their area. Thereupon, appellant Bawander shot at the chest of Suraj Sahu with a countrymade revolver carried by him. Thereafter, Dhamendra Sahu and Suraj Sahu began to run away from there, however, Suraj Sahu fell down at some distance. When Dhamendra Sahu informed about the incident to mother and sister of Suraj Sahu, they came there and took him to Apollo Hospital and from there to Sector-9 Hospital, Bhilai where he died. On report being lodged to the above effect, merg intimation and Dehati Nalishi were registered; the dead body was sent for postmortem after conducting inquest over it and offence under Sections 302, 34, 341, 114 of IPC was registered vide FIR (Ex.P/24). 3. During investigation, spot map Ex.P/8 was prepared, bloodstained and plain soil were seized from the place of occurrence vide Ex.P/17; wearing apparels of the deceased, bullet and x-ray film were seized vide Ex.P/12 and memorandum statements of the appellants were recorded vide Ex.P/13 & P/14. 3. During investigation, spot map Ex.P/8 was prepared, bloodstained and plain soil were seized from the place of occurrence vide Ex.P/17; wearing apparels of the deceased, bullet and x-ray film were seized vide Ex.P/12 and memorandum statements of the appellants were recorded vide Ex.P/13 & P/14. As per seizure memo Ex.P/16, two live cartridges and one Hero Honda motorcycle were seized on being produced by appellant Narsingh Kumar Verma from his house. One six-round revolver with one chamber having empty cartridge and a live cartridge in one chamber were seized on being produced by appellant Kamal Sahu as per Ex.P/15. The said live cartridges and revolver were sent for examination to armourer. The other seized articles were sent to FSL for chemical examination vide Ex.P/30. Statements of the witnesses were recorded and after obtaining sanction for prosecution under Sections 25 & 27 of the Arms Act, upon completion of usual investigation, charge sheet was filed under Sections 302, 341, 114, 34 of IPC and Sections 25 & 27 of the Arms Act before the Judicial Magistrate First Class, Durg. 4. Learned trial Court framed charges under Sections 302, 34 of IPC and Sections 25 & 27 of the Arms Act, which were abjured by them and they prayed for trial. In order to prove its case, the prosecution examined 17 witnesses in all. Statements of the accused were recorded under Section 313 of CrPC in which they denied the circumstances appearing against them in the prosecution case, pleaded innocence and false implication. However, no witness was examined by them in defence. 5. Learned trial Court after hearing counsel for the respective parties and considering the material available on record, convicted and sentenced the appellants as mentioned in para 1 of this judgment. Hence these appeals. 6. Learned counsel for the accused/appellant in CRA No.273/2020 would submit that the impugned judgment is per se illegal and contrary to the material available on record. Learned trial Court has failed to properly appreciate the evidence of the witnesses. PW-2 Akash Sahu, brother of the deceased, has clearly stated that there was enmity between Suraj Sahu and Kamal Sahu @ Bawander but there is no enmity between appellant Narshing Verma and the deceased and they were good friends and would go to work together everyday for earning their livelihood. PW-2 Akash Sahu, brother of the deceased, has clearly stated that there was enmity between Suraj Sahu and Kamal Sahu @ Bawander but there is no enmity between appellant Narshing Verma and the deceased and they were good friends and would go to work together everyday for earning their livelihood. There are material contradiction, exaggeration and omission in the statements of the prosecution witnesses which have been overlooked by the learned trial Court. PW-7 Dharmendra Sahu has clearly stated that it is accused Kamal Sahu who shot the deceased dead. Further, Varsha Sahu (PW-6), sister of the deceased, has clearly stated that appellant Narshing Verma and the deceased would go to their work together and on the date of incident also they went to deliver goods at nearby village Berla, which shows that there was no enmity between them. The witnesses to the memorandum and seizure have not supported the prosecution case. The prosecution has also failed to attribute any motive or common intention to the appellant Narshing Verma for commission of the offence with the accused Kamal Sahu. Therefore, in the given facts and circumstances of the case and the evidence on record, conviction of the appellant Narshing Verma is absolutely unjustified and is liable to be set aside. 7. Learned counsel appearing for the appellant Kamal Sahu in CRA No.391/2020 would submit that the impugned judgment has been passed in respect of the appellant herein without appreciating the overall evidence in its true perspective. Learned trial Court has not appreciated the contradictions and omissions in the statements of the prosecution witnesses which make the whole prosecution case doubtful. Conviction of the appellant is based mainly on the evidence of PW-7 Dharmendra Sahu, who is near relative of the deceased and whose presence on the spot is doubtful. The witnesses to the memorandum and seizure have also not supported the prosecution case. The prosecution has failed to prove guilt of the appellant by adducing cogent and reliable evidence beyond reasonable doubt and therefore, the appellant Kamal Sahu deserves to be acquitted of all the charges by giving him benefit of doubt. The witnesses to the memorandum and seizure have also not supported the prosecution case. The prosecution has failed to prove guilt of the appellant by adducing cogent and reliable evidence beyond reasonable doubt and therefore, the appellant Kamal Sahu deserves to be acquitted of all the charges by giving him benefit of doubt. Alternatively he would submit that even if the entire prosecution case is taken as it is, considering the fact that the incident took place all of a sudden, in the heat of passion upon a sudden quarrel, the offence against appellant Kamal @ Bawander does not travel beyond Section 304 Part-II of IPC and therefore, holding him guilty under the said section he may be sentenced to the period already undergone which comes to around nine years. 8. On the other hand, learned counsel for the State supporting the impugned judgment submits that the trial Court considering all the relevant aspects of the matter in light of oral and documentary evidence adduced by the prosecution has rightly convicted and sentenced the present appellants by the impugned judgment which calls for no interference by this Court. Both these appeals being devoid of any substance are liable to be dismissed. 9. Heard learned counsel for the parties and perused the material available on record. 10. As regards homicidal death of deceased Suraj Sahu, according to the prosecution case he died on 9.11.2015 due to gunshot injury. PW-8 Dr. Vipin Jain conducted postmortem on the body of the deceased on 10.11.2015 and found following injuries: "One circular wound present on right side of chest, 2 inches right to midline at level of 5th, 6th intercostal space mid clavicular line. Size of wound is 1/2 x 1/2 cm with edges invented. Color of abrasion present which is dark black in colour. Black color tatooing present around the circular wound in area 3 x 3 cm. On dissection, the tract goes through skin, intercostal muscles, right pleura at medial bonder of upper lobe of right lung and then entering the right atrium of heat often piercing the pericardium. The medial bonder of right lung has contusion of dark red colour of size 2" x 1". On dissection of heart, the bullet is found in the right atrial cavity. Wound of right atrium is 1/2 x 1/2 cm, circular in shape. Size of bullet : - length 1 cm, circumeter is 1.5 cm. The medial bonder of right lung has contusion of dark red colour of size 2" x 1". On dissection of heart, the bullet is found in the right atrial cavity. Wound of right atrium is 1/2 x 1/2 cm, circular in shape. Size of bullet : - length 1 cm, circumeter is 1.5 cm. It is bronze in colour having blood stains. Upon internal examination, the doctor found the brain pale, however, ribs, heart, lungs, windpipe and big artery were normal. Spleen, liver and kidney were pale. He advised for microscopic and chemical examination of the skin of wound of entry which was preserved in spirit. The bloodstained bronze bullet was preserved in a plastic box for ballistic examination. In his opinion, the cause of death was haemorrhage and shock due to gun shot injury." In his cross-examination, the doctor stated that the bullet was found in right atrial cavity of heart which led to excessive bleeding. 11. Looking to the statements of the prosecution witnesses (PWs-1, 2, 3, 6 & 7) who have stated that the deceased died due to gunshot injury and the medical evidence of PW-7 Dr. Vipin Vikas Jain, we are of the opinion that the prosecution has been successful in proving it beyond reasonable doubt that death of the deceased was homicidal in nature. 12. PW-7 Dharmendra Sahu states that on 9.11.2015 he was going with Suraj Sahu on motorcycle for purchasing clothes. At around 7-8 pm the appellants, who were also on motorcycle, intercepted them and started filthily abusing them. Kamal @ Bawandar took out a countrymade revolver from his pocket and shot at Suraj saying that he (Suraj) would to hooliganism in the mohalla. He states that Narshing Kumar Verma was also abusing. When they started running away from there, Suraj fell down near borewell and he ran towards the house of Suraj and informed his sister that Suraj has been shot by Kamal. Thereupon mother and sister of Suraj reached the spot and on being asked by his sister, Suraj informed her that he has been shot by Kamal and Narshing. Thereafter, they took Suraj to hospital. However, on the same day Suraj died. He has proved Dehati Nalishi Ex.P/6, merg intimation Ex.P/7 and spot map Ex.P/8. Thereupon mother and sister of Suraj reached the spot and on being asked by his sister, Suraj informed her that he has been shot by Kamal and Narshing. Thereafter, they took Suraj to hospital. However, on the same day Suraj died. He has proved Dehati Nalishi Ex.P/6, merg intimation Ex.P/7 and spot map Ex.P/8. In cross-examination he admitted the fact that it being winter season it was dark by 7-7.30 pm and therefore, the passersby could not be identified properly for want of proper light. He states that deceased Suraj had only told him that he (Suraj) had a quarrel with accused Bawander, but he did not tell as to on what issue and how many days ago the quarrel took place. In para 19 he remained firm on the fact that at the time of incident when Bawander shot the deceased and he was present at the spot. He admits that he as well as Suraj beat Bawander and thereafter, Bawander took out countrymade revolver. In para 20 he again states that after they committed marpeet with Bawander, he took out countrymade revolver. 13. The other witnesses namely PW-1 Rekha Sahu, PW-3 Vishwanath Sahu and PW-6 Varsha Sahu have stated that when they came to know about the incident, they reached the place of occurrence. 14. PW-4 SM Afzal, Sr. Medical Officer, Sector-9 Hospital, Bhilai states that on 9.11.2015 at about 9 pm one male was brought to him and on examination he was found to be dead. The persons who brought him told that he is Suraj Sahu, they have brought him from Apollo BSR Hospital, Bhilai and that today he suffered gunshot injury at 7.30 pm. Then this witness gave intimation to the police vide Ex.P/4 and he admits his signature on the said document. 15. PW-10 Peelaram Sahu, witness to the memorandum and seizure has not supported the prosecution case. The prosecution declared him hostile and cross-examined him where he admits his signature on the memorandums Ex.P/13 & P/14 and seizure memos Ex.P/15 & P/16 from A to A part. However, he states that no seizure was made before him and no interrogation of Kamal Sahu was made or his statement was recorded before him. The prosecution declared him hostile and cross-examined him where he admits his signature on the memorandums Ex.P/13 & P/14 and seizure memos Ex.P/15 & P/16 from A to A part. However, he states that no seizure was made before him and no interrogation of Kamal Sahu was made or his statement was recorded before him. In para 11 he states that the revolver seized by the police from accused Kamal Sahu was wrapped in a polythene and that he was not informed about seizure of cartridges etc. He was also not informed by the police about seizure made from other accused Narshing. 16. PW-15 Khileshwar Sahu, witness to the memorandum and seizure, has also not supported the prosecution case. After declaring him hostile, he was cross-examined by the prosecution where he admits his signature on the memorandum Ex.P/14 & P/13 of accused Narshing Verma and Kamal Sahu, seizure Ex.P/16 and P/17. 17. PW-14 Ravindra Kumar Dhruv, investigating officer, has stated that he lodged FIR (Ex.P/24) on the basis of Dehati Nalishi. He also lodged Dehati Merg Intimation as per Ex.P/7 and merg intimation Ex.P/25. He recorded memorandum of Kamal @ Bawander vide Ex.P/13 and in pursuance thereof, seized one countrymade revolver with one live cartridge and one empty cartridge vide Ex.P/15. He also recorded memorandum of accused Narshing Kumar Verma vide Ex.P/14 and thereafter vide seizure memo Ex.P/16 effected seizure of two live cartridges and one Hero Honda motorcycle used in commission of crime. 18. PW-11 Jaipal Sahu, Armourer in 14th Battalion, Dhanora, Distt. Balod, states that on 22.11.2015 Police Constable Kumendra Kumar brought one countrymade revolver, one live cartridge and one fired empty cartridge for examination. Upon examination he found that it is 7.65 bore countrymade revolver and it is functional. The live cartridge of 7.65 MM bore can be fired from this revolver and that empty cartridge of 7.65 MM has been fired from this revolver as there is carbon in the barrel and it smells gunpowder. He gave his report Ex.P/20 and P/21. In his cross-examination he states that after making fire, smell of gunpowder can last for about 15 days. 19. Learned counsel for the appellants have contended that since the witnesses to the memorandum and seizure have not supported the prosecution case, seizure of countrymade revolver and other articles from the possession of the appellants becomes doubtful. In his cross-examination he states that after making fire, smell of gunpowder can last for about 15 days. 19. Learned counsel for the appellants have contended that since the witnesses to the memorandum and seizure have not supported the prosecution case, seizure of countrymade revolver and other articles from the possession of the appellants becomes doubtful. However, this argument is not acceptable for the reason that though the witnesses to the memorandum and seizure have turned hostile, but they have admitted their signature on the relevant documents and furthermore, the investigating officer (PW-14 Ravindra Kumar Dhruv) in his examination-in-chief categorically stated about recording of memorandum of the accused persons and the seizure made in pursuance thereof. He remained firm on the point that countrymade revolver was seized on the basis of memorandum of accused Kamal @ Bawander. PW-11 Jaipal Sahu after examination of said firearm states that fire was made from it. PW-7 Dharmendra Sahu has stated that at the time of incident he was present at the spot and saw accused Kamal @ Bawander firing with countrymade revolver at the deceased. It was also suggested by the defence that initially he (Dharmendra) and the deceased beat accused Kamal and thereafter he fired at the deceased. 20. Thus, from the overall evidence, oral and documentary, adduced by the prosecution it stands proved beyond reasonable doubt that it is appellant Kamal @ Bawander who killed the deceased by causing him gunshot injury. Looking to the manner in which the incident took place where appellant Kamal @ Bawander fired at him on his vital part which led to his death, it cannot be said that while making such assault he was not having any intention to kill the deceased. Being so, his conviction and sentence under Section 302 of IPC and Sections 25 & 27 of the Arms Act are just and proper warranting no interference by this Court. 21. As regards the conviction of accused/appellant Narshing Kumar Verma, it is clear from the statement of eyewitness PW-7 Dharmendra Sahu that no active role was played by this accused in commission of the offence. From paras 19 & 20 of his statement it is clear that PW-7 and the deceased assaulted Kamal @ Bawander and then he took out pistol and fired at the deceased. From paras 19 & 20 of his statement it is clear that PW-7 and the deceased assaulted Kamal @ Bawander and then he took out pistol and fired at the deceased. Though he states that Narshing Kumar Verma was also abusing him but considering the manner in which the incident took place where while accused Narshing Verma along with accused Kamal @ Bawander was going on motorcycle, on the way they found the deceased going by motorcycle with PW-7, accused Kamal intercepted their motorcycle; there was scuffle between accused Kamal and the deceased and during this process, Kamal fired at the deceased, it would not be justifiable to hold that accused Narsingh Verma was also guilty of offence under Section 302 of IPC or even of sharing common intention with accused Kamal of murdering the deceased. 22. The Hon'ble Supreme Court in the matters of Dani Singh Vs. State of Bihar, 2005 SCC (Cri) 127 and Pardeep Kumar Vs. Union Admn. (2007) 1 SCC (Cri) 41 has observed that the ingredients of Section 34 are that there should be criminal act i.e. either committing the act or omitting to commit the act, which is an offence under IPC, that criminal act is done by more than one person and that criminal act is done in furtherance of common intention of all, meaning thereby that the persons should have decided in advance about the commission of the act and every one of them have acted keeping in mind that common intention. The common intention may be inferred either from direct evidence or from the surrounding circumstances and the conduct of the parties. Therefore, whether an act is in furtherance of the common intention is an incident of fact and not of law. In the matter of Sunny Kapoor Vs. State (UT of Chandigarh), (2006) 10 SCC 182 it was observed that to attract mischief of Section 34 of IPC two things need to be established : (i) common intention to commit an offence; and (ii) participation in commission of the offence. Where these two ingredients were satisfied, even overt act on part of some of the persons sharing the common intention was not necessary. In the matter of Sheoram Singh Vs. State of UP, (1973) 3 SCC 110 , the Hon'ble Apex Court held that a pre-concert in the sense of a distinct previous plan is not necessary to be proved. Where these two ingredients were satisfied, even overt act on part of some of the persons sharing the common intention was not necessary. In the matter of Sheoram Singh Vs. State of UP, (1973) 3 SCC 110 , the Hon'ble Apex Court held that a pre-concert in the sense of a distinct previous plan is not necessary to be proved. The common intention to bring about a particular result may well develop on the spot as between a number of persons, with reference to the facts of the case and circumstances of the situation. 23. Keeping in view the principles of law enunciated in respect of applicability of Section 34 of IPC, if we analyze the alleged act of accused Narshing Kumar Verma in commission of the offence, it is found that though both the appellants were together at the time of incident but when accused/appellant Kamal had a scuffle with the deceased, he suddenly took out countrymade revolver and fired at the deceased on his chest leading to his death. In these circumstances, accused Narshing Kumar Verma cannot be held guilty of sharing common intention with accused Kamal of murdering the deceased. 24. In the result: CRA No.273/2020 is allowed and appellant Narshing Kumar Verma is acquitted of the charge under Section 302 of IPC. He is reported to be on bail, therefore, his bail bonds shall remain in operation for a period of six months from today in view of provisions of Section 437A of CrPC. CRA No.391/2020 being devoid of any substance is hereby dismissed. Appellant Kamal Sahu @ Bawander is reported to be in jail, therefore, no further order regarding his arrest, surrender etc. is required to be passed. The record of the trial Court along with copy of this judgment be sent back immediately to the trial Court concerned for compliance and necessary action.