JUDGMENT Santosh Hegde, J.
1. The appellant before us was Accused No. 2 before the Court of IIIrd Additional Sessions Judge, Banka. He along with his father (A-1) and his younger brother (A-3) was charged for offence punishable under Section 302 read with Section 34 IPC and having found guilty was sentenced to imprisonment for life on that charge. The appellant and his brother Kustam (A-3) were also charged for an offence punishable under Section 27 of the Arms Act and were sentenced to 3 years R.I. on that charge. On appeal, the High Court of Judicature at Patna has confirmed the said conviction and sentence.
2. All the three accused persons preferred the above noted criminal appeal before this Court and this Court as per its order dated 9.2.2001 dismissed the appeal so far as it concerned Hazi Shariff (A-1) and Kustam @ Khurshid (A-3), while notice was issued in regard to appeal filed by the present appellant and on return of the said notice after hearing the parties the leave was granted on 23.4.2001, therefore, the appeal of the present appellant alone as against the judgment of the High Court is before us.
3. The prosecution case briefly stated is that there was some dispute between the father of the appellant and one Manir Mian the deceased in this case in regard to some land. It is the further case of the prosecution that on 14.6.1996 in the morning at about 9 a.m. the A-1 was taking a pumping set in a bullock cart for irrigating his land and when the art reached near the house of one Sheikh Madhu the deceased who was there asked A-1 not to use the pump for irrigating the land until the dispute as to the land is settled and at that time the deceased also stopped the bullock cart. A-1, getting angered by this obstruction caused by the deceased, the first accused allegedly called the appellant and accused No. 3 shouting that the deceased is stopping his cart. On hearing this shout, it is stated that the appellant and A-3 Kustam came to the spot armed with firearms, appellant carrying pistol and Kustam carrying a musket. On their arrival, their father A-1 allegedly exhorted them to kill Manir. It is the further case of the prosecution that on this exhortation the 3rd accused fired from his musket which hit the chest of Manir consequent to which injury, he died, this was noticed by deceased's wife PW-9. On hearing the sound of firing, it is stated, that the deceased's mother (PW-7) and other members of the deceased's family came there at which time the prosecution states that the appellant herein fired two shots one of which grazed the mother-in-law (PW-7) and PW-4 the other hit the wall of the house. Thereafter the prosecution case is that the accused persons went away from the place of incident. On the above allegation, the three accused persons including the appellant herein were charged under Sections 302, 307 and 120B IPC and Section 27 of the Arms Act. On the said charges as stated above, the three accused persons were convicted.
4. From the facts narrated above, it is seen that because of the enmity between A-1 and the deceased on an exhortation made by A-1, A-3 fired a shot from the musket which caused the death of the deceased. For this A-1 was convicted under Section 302 read with Section 34 IPC while A-3 was convicted under Section 302 simplicitor as also under Section 27 of the Arms Act. Even though there has been no overt act on the part of the appellant in the killing of the deceased, he was convicted under Section 302 read with Section 34 IPC and under Section 27 of the Arms Act. Since the appeal of accused Nos. 1 and 3 has been dismissed by this Court, in this appeal we will have to only examine the role of the appellant in the incident that occurred on 14.6.1996 in which Manir lost his life. From the prosecution evidence, the overt act attributed to the appellant is that after A-3 shot Manir, the appellant allegedly shot from his revolver causing an injury to PW-7 and PW-4 which the doctor described in the first instance as an injury which was caused by hard and blunt substance, which on further examination the very same doctor opined that it can also be caused by the grazing of the pellet. Question, therefore, is can the appellant be held to have shared the common intention of A-1 and A-3 in causing the death of Manir so as to hold him guilty for an offence punishable under Section 302 read with Section 34 IPC? We will also have to consider the charge framed against the accused under Section 27 of the Arms Act.
5. If we examine the prosecution case in regard to the role played by the appellant, then it is seen that according to evidence of PW-9 who is an eye-witness to this incident of murder of her husband, it is seen that after accused No. 1 exhorted his sons to kill Manir it is A-3 alone who shot at Manir and no role is attributed by her to this appellant. She says on coming of the members of her family to the place of the incident, the appellant had fired a shot which had hit PWs. 4 and 9. In this evidence, she has not specifically stated whose shot actually hit the injured person. It is to be noticed that in the complaint also no such act is attributed to the appellant. PW-5 who also witnessed the incident has also not attributed any role to this appellant even in regard to second shooting. She says it was A-3 who shot the second time also. According to her, it is the pellets discharged by the musket of A-3 which caused injuries to PWs. 4 and 7. PW-7 in her evidence has stated that it is the appellant who fired a gum shot which hit her in her right hand and by the same shot, PW-4 Jabbar was also hit. Then the said pellet struck the wall. PW-8 another witness in his evidence has stated that it is the appellant who fired the gun which caused the injury to PWs. 4 and 7 but in his statement before the Police he had not stated that PWs. 4 and 7 had received the injury, therefore, to that extent he has made an improvement in his evidence before the court. Therefore, in reality it is only the evidence of PW-7 which implicates the appellant as to the injury caused to PWs. 4 and 7. While considering the charge under Section 307 IPC against this appellant, the trial court itself did not believe the prosecution case that the appellant had caused the injury to these injured persons with an intention to kill. Therefore, it had acquitted the appellant of that charge. Thus, it is apparent that this appellant did not share the intention of his father to either kill Manir or anybody else. if that be so, we find it difficult how this appellant could be attributed the common intention of A-1 to kill Manir when he had not taken any part in causing any injury much less the fatal injury to the appellant and when he had no intention to cause the death of either PW. 4 or PW-7 so as to hold him guilty under Section 302 read with 34 IPC for the murder of deceased Manir.
6. The question, therefore, is whether this finding can be confirmed. From the entire prosecution evidence, it is noticed that the appellant and accused No. 3 came to the place of incident on hearing the call of their father. It is said that after they came to the spot armed with firearms, their father exhorted them to kill Manir, the deceased. In response to that exhortation, it is only accused No. 3 who fired at Manir and admittedly the appellant did not shoot at the deceased. Therefore, it is clear that so far as the father's intention to kill Manir is concerned the same is shared only by A-3 and not by A-2. Therefore, we will have to consider whether the alleged subsequent shooting of appellant at PWs. 4 and 7, if at all true could also be attributed as part of the same common intention. In this process we notice that there is so much of contradiction in the case of the prosecution that the Sessions Court itself thought it fit not to rely upon this part of the evidence of the prosecution while considering the case under Section 307 IPC against the appellant. Then we notice appellant has not been attributed with any other motive to either kill the deceased or any of the members of his family nor was there any exhortation by A-1 to kill any person other than the deceased. In such circumstances, if the appellant has not chosen to obey the exhortation of his father to kill Manir then it will be extremely difficult to hold that the appellant shared the common intention of his father and his younger brother. Even if the role attributed to this appellant in shooting PWs. 4 and 7 is to be accepted even then that cannot be part of the same common intention of killing Manir. Therefore, in our opinion, the prosecution has failed to establish that the appellant had shared the common intention of his father A-1 and younger brother A-3 so as to hold him guilty of murder by invoking Section 34 IPC.
7. The next question, for our consideration, is can the prosecution case in regard to the appellant firing at PWs. 4 and 7 be believed or not? In this regard we have noticed that in the FIR there is no such allegation against the appellant. PW-9 the wife of the deceased who first came there has also not spoken anything about this appellant causing injuries to PWs. 4 and 7. PW-5 has also not spoken anything about the role of this appellant in the incident of 14.6.1996. As noticed above, PW-4's evidence cannot be considered because the court has not administered any oath to this witness, therefore, in effect it is only the evidence of PWs. 7 and 8 which really implicates this appellant. If we consider the evidence of PW-8 then we notice it is for the first time before the court he has implicated the appellant and he has not done the same when he gave his statement to the Police in the first instance therefore, there being an improvement in his evidence we do not think it safe to rely upon his evidence. Coming to the evidence of PW-7 we notice that the doctor in his evidence had initially stated that the injuries suffered by her and PW-4 were caused by a blunt weapon. PW-12, the doctor on further questioning by the prosecution stated:
"This injury cannot be caused by pellet of fire arm. Again says that it may be caused by pellet of fire arm if the pellet touches the skin. This injury report in my writing and bears my signature."
8. Later in the cross examination, he stated thus:
"My injury report does not show that the injuries of the injured persons were caused by pellet of fire arm. The injury of Jahiram may be caused by contact of pressure of door or any hard substance. The injury of Jabbar may be caused by fall on hard substance."
9. In the background of this evidence and the improvements which we have noticed in regard to the role played by this appellant, we find it difficult to place reliance on this part of the prosecution case so as to hold the appellant guilty of having caused prosecution case so as to hold the appellant guilty of having caused any injury to either PW-4 or PW-7 as also the alleged offence attributed to him under the Arms Act.
10. For the reasons stated above, this appeal succeed. The judgment and conviction recorded by the High Court as against this appellant is set aside. The appeal is allowed. We are informed that the appellant is on Bail. His Bail Bonds shall stand discharged.