JUDGMENT : PRADEEP KUMAR SRIVASTAVA, J. Heard Mrs. Vandana Singh, learned counsel for the appellants and Mrs. Nehala Sharmin, learned Spl.P.P. appearing for the State. 2. Above named appellants have preferred this criminal appeal challenging his judgment of conviction dated 24.06.2006 and order of sentence dated 26.06.2006 passed by learned 3rd Additional Sessions Judge, (F.T.C.), Dumka in Sessions Case No. 220 of 1997, whereby and whereunder, the appellants have been held guilty for the offence under Sections 323 and 304 Part-II of the I.P.C. and sentenced to undergo R.I. for five years for the offence under Section 304 Part-II of the I.P.C. and further to undergo imprisonment for six months for the offence under Section 323 of the I.P.C. Both the sentences were directed to run concurrently. FACTUAL MATRIX 3. The factual matrix giving rise to this appeal in a narrow compass is that informant Pradeep Rout and accused Sikandar Raut (appellant no. 1) used to plough their field by sharing the ox of each other. It is alleged that on 06.07.1997, Sikandar Raut had ploughed his filed with the ox in the morning. Hence, the informant took the ox of Sikankar Raut in the evening for ploughing and sowing maize crop. It is further alleged that when the informant brought his ox from cattle shed to his field, meanwhile, Arjun Raut (appellant no. 2) objected and Sikandar Raut separated his ox from ploughing on the pretext that time is over. It is further alleged that when the informant returned to his home then Sikandar Raut came and started abusing him and Arjun Raut also came there and assaulted informant on his head by gadasa. Accused Abhikant Raut assaulted on the head of the informant by farsa. Sikandar Rout also started assaulting indiscriminately with his lathi on both arms of informant. The informant raised alarm then his father Tiruti Raut (since deceased) came, who was also assaulted by Arjun Raut (appellant no. 1) and Sikandar Raut (appellant no. 2). 4. On the basis of above information, FIR being Saraiyahat P.S. Case No. 99 of 1997 dated 06.07.1997 was registered for the offence under Sections 341, 323, 337, 324, 504/34 of the I.P.C. Later on, offence under Section 302 of the I.P.C. was added due to death of Tiruti Raut in the said occurrence. 5. 2). 4. On the basis of above information, FIR being Saraiyahat P.S. Case No. 99 of 1997 dated 06.07.1997 was registered for the offence under Sections 341, 323, 337, 324, 504/34 of the I.P.C. Later on, offence under Section 302 of the I.P.C. was added due to death of Tiruti Raut in the said occurrence. 5. After completion of investigation, the I.O. of the case has submitted charge sheet under Sections 341, 323, 337, 324, 504, 307 and 302/34 of the I.P.C. After submission of charge sheet, the cognizance was taken and the case was committed to the court of Sessions, where the charges were framed under Sections 307/34 and 302/34 of the I.P.C., to which the appellants pleaded not guilty and claimed to be tried. 6. In order to substantiate the charges leveled against accused persons, altogether eight witnesses were examined by the prosecution. 7. Apart from oral evidence of ocular witnesses, following documentary evidences were also adduced. Exhibit-1 : Signature of Birendra Raut on the fardbeyan. Exhibit-1/1 : Signature of informant on the fardbeyan. Exhibit-1/2 : Signature of Birendra Raut on the inquest report. Exhibit-2 : Injury report of deceased. Exhibit-2/1 : Injury report of deceased. Exhibit-2/2 : Injury report of informant. Exhibit-3 : C.C. of post-mortem report of deceased. Exhibit-4 : Fardbeyan of deceased. Exhibit-5 : Endorsement on the fardbeyan. Exhibit-6 : Formal F.I.R. 8. The case of defence is that appellants are innocent persons and have committed no offence at all. They have been falsely implicated in this case. However, two documentary evidence has been adduced by the defence. Exhibit-A : Certified copy of F.I.R. of Saraiyahat P.S. Case No. 98/97. Exhibit-B : Charge-sheet No. 105/97 submitted in Saraiyahat P.S. Case No. 98/97. 9. The learned trial court, after evaluating the evidence available on record, held the appellants guilty for the offence under Sections 323 and 304 Part-II of the I.P.C. and sentenced as stated above. 10. Being aggrieved with the impugned judgment of conviction dated 24.06.2006 and order of sentence dated 26.06.2006, this Criminal Appeal has been preferred on behalf of the appellants. 11. Learned counsel for the appellants has submitted that during pendency of the appeal, appellant no. 1 namely, Sikandar Raut and appellant no. 2 namely, Arjun Raut have died, as such, the appeal on behalf of appellant nos. 2 & 3 may be abated. 12. 11. Learned counsel for the appellants has submitted that during pendency of the appeal, appellant no. 1 namely, Sikandar Raut and appellant no. 2 namely, Arjun Raut have died, as such, the appeal on behalf of appellant nos. 2 & 3 may be abated. 12. Considering the aforesaid submission, the appeal stands abated against the appellant no. 1 namely, Sikandar Raut and appellant no. 2 namely, Arjun Raut . 13. Learned counsel for the appellant no. 3 has submitted that no specific overt act has been attributed against the appellant Abhikant Raut and none of the prosecution witnesses examined in this case including the informant (P.W.-3) have alleged any specific role of the appellant in causing any injury to any of the informant party or even to the deceased. The prosecution has also failed to prove any common intention in furtherance of which the appellant Abhikant Raut has participated in the alleged offence, rather the learned trial court has not convicted the present appellant with the aid of Section 34 of the I.P.C. Under the aforesaid circumstance, specific role of the appellant in the alleged offence is required to be proved. 14. The appellant Abhikant Raut has been convicted only on the basis of general and omnibus allegation against him. Hence, he deserves acquittal and this appeal is fit to be allowed by setting aside the impugned judgment of conviction and order of sentence. 15. On the other hand, learned APP has opposed the aforesaid contentions raised on behalf of the appellant and has submitted that there are eye-witnesses of the occurrence. P.W.-5 Gayatri Devi, who happens to be the wife of Birendra Raut (P.W.-1), P.W. -6 Shyama Devi, who is wife of the informant Pradeep Raut. P.W.- 6 Shyama Devi has supported the prosecution story as an eye-witness and attributed role of the present appellant in the said occurrence. Hence, the impugned judgment of conviction and order of sentence required no interference and this appeal devoid of merit is fit to be dismissed. 16. It is not disputed that the deceased Tiruti Raut died in course of treatment in the alleged occurrence. The informant (P.W.-3) has stated nothing about the role of present appellant Abhikant Raut, rather he has specifically stated that except Sikandar, none else was involved in assaulting him or his father. 17. 16. It is not disputed that the deceased Tiruti Raut died in course of treatment in the alleged occurrence. The informant (P.W.-3) has stated nothing about the role of present appellant Abhikant Raut, rather he has specifically stated that except Sikandar, none else was involved in assaulting him or his father. 17. P.W.-1 Birendra Raut is the son of deceased and he is a hearsay witness and came to know about the incident from his brother Pradeep Raut. 18. P.W.-2 Bimal Rana has been declared hostile by the prosecution. 19. P.W.-4 Gopal Ghor has seen the occurrence from some distance and has stated in a general manner that hearing hulla, he went towards the place of occurrence and saw Arjun, Sikandar and Abhikant were scuffling and assaulting to Tiruti Raut by small stick. Informant Pradeep Raut was also present there, but he has not stated anything regarding any assault given to the Pradeep or any specific role of the accused persons, which need to be given much force. 20. P.W.-5 Gayatri Devi. She has specifically stated at para-4 of her evidence that at the time of occurrence, she was not present there, rather, she arrived later on and saw the injuries to brother of her husband and father-in-law. His father-in-law was treated at Hospital. She also admits cross-case lodged by the accused persons. 21. P.W.-6 Shyama Devi is wife of informant. She is also not eye-witness of the occurrence and stated in a general way against all the appellants showing their involvement in the alleged occurrence. 22. P.W.-7 is the Dr. Sita Ram Sah, who conducted autopsy on the deceased and found five injuries, which are as follows:- (I) Healing – Superficially laceration on right shoulder joint posteriorally 2½” x 1” skin deep. (II) Abrasion under healing process on right arm laterally. (III) Bruise and abrasion on left shoulder posteriorly in healing process 1 ½” x 1”. (IV) Bruise on right side neck posteriorally 3” x 2” (greenish – yellowing color. (V) Bruise with swelling on scalp at volt anterially with central vaxation 3” x ½”. The cause of death opined to be cerebral hemorrhage due to Injury No. (V), caused by hard and blunt substance. 23. P.W.-8 is the formal witness to FIR and other documents, but not taking part in investigation. 24. (V) Bruise with swelling on scalp at volt anterially with central vaxation 3” x ½”. The cause of death opined to be cerebral hemorrhage due to Injury No. (V), caused by hard and blunt substance. 23. P.W.-8 is the formal witness to FIR and other documents, but not taking part in investigation. 24. From discussions of over all evidence adduced by the prosecution in this case, it is crystal clear that no specific overt act has been attributed against the present appellant. There is no concrete evidence against him to sustain his conviction and sentence for the offence under Section 304 and 323 of the I.P.C. read with Section 34 of the I.P.C. This Court finds that the learned trial court has committed serious error of record in holding the appellant Abhikant Raut guilty for the aforesaid offence and sentenced him without any evidence. Therefore, impugned judgment of conviction dated 24.06.2006 and order of sentence dated 26.06.2006 passed by the 3rd Additional District & Sessions Judge, Dumka (F.T.C.) against the appellant Abhikant Raut is hereby set aside. 25. Therefore, this appeal stands allowed. 26. The appellant-Abhikant Raut is on bail, as such, he is discharged from liability of bail bond and sureties shall also discharged 27. Let a copy of this judgment along with trial court record be sent back to the court concerned for information and needful.