Judgment S. H. S. Abidi, J. 1. -remnu Mahto, Shiv Shankar Mahto and Jogeshwar mahto have been convicted under Sec.302 read with Sec.34 of the indian Penal Code (for short I. P. C.) and sentenced to rigorous imprisonment for life and a fine of Rs.1000/- each and in default to undergo simple imprisonment for one year. They havt also been convicted under Sections 148 and 452, I. P. C. but no separate sentence has been given to them. Five other accused Madhusudhan Mahto, Gopal Mahto, Bhuneswar Mahto, lalit Mahto and Saileshwar Mahato have been acquitted of all the charges. 2. A first information report (Ext.2) was lodged on 12-12-1979 at 8.30 a. m. at police station Sonua by Bimala Mahtain (PW 1) where she had gone along with her father Dasarath Mahto, Gauri Mahto, Janm Jag nayak, Dhirendra Mahto and Chaukidar Bhola Nath Tanti. She has stated in the said report that last night after taking food she, her father, Dashrath mahto (since deceased) son Dhaneshwar Mahto (deceased in this case) and daughters were sleeping in the house after closing the door. Her mother also after taking her meal went to the old house to sleep. At about 12 in the night a voice came from outside asking to take notice from Chaibasa court. On hearing the same she and her son Dhaneshwar Mahto taking the lamp opened the door and went out. Three appellants, namely. Remnu Mahto, Shiv Shankar Mahto, and Jogeshwar Mahto armed with swords pushed her son inside and said that they had filed oases in respect of land in the courts. Then the appellants, namely, Remnu Mahto and Shiv Shankar Mahto began to give sword blows to her son. She raised alarm. Then Jogeshwar Mahto gave her sword blow at her head. Outside the house many people with swords were standing, namely, Bhuneshwar, gopal Mahto, Lalit Mahto. Madhusudhan and Saileshwar Mahto, the five acquitted accused and one Rajan (who died during the trial) entered the house with swords and assaulted her father Dashrath who was trying to escape. Then the accused ran away. On her alarm none came as her house is at a lonely place. After going away of the accused she saw her son dead. Madhusudhan and Saileshwar Mahto, the five acquitted accused and one Rajan (who died during the trial) entered the house with swords and assaulted her father Dashrath who was trying to escape. Then the accused ran away. On her alarm none came as her house is at a lonely place. After going away of the accused she saw her son dead. Her father went to the old house situated in the middle of the village and brought her mother, Chaukidar Bholanath Tanti, Janm Jag Nayak, Dhirendra mahto (who is now dead) and others. The occurrence was seen by her, her daughter and house boy Madhu Shankar Das. 3. On the basis of this first information report investigation of the case was taken up by Atul Kumar Karkatta (PW 11) who went to the place of occurrence, being one and half kilometer from the police station. He prepared the inquest report (Ex.4) and sent the dead body for postmortem examination. He also found blood scatter upto khalihan. He seized the blood stained earth. He prepared injury reports of the informant and her father and sent the injured also for medical examination. After completing the investigation he submitted charge-sheet. 4. The accused in defence dented the prosecution case and alleged that they have been falsely implicated in this case on account of enmity. No witness in defence has been examined. 5. The prosecution in support of its case produced 11 witnesses. PW 1 bimala Devi (informant) herself has deposed as an eye-witness. The other eye witness is Gauri Mahtain (PW 6) own daughter of the informant. Janata Jagnayak, Shankarho, Asha Mahtain daughter of the informant and madhushankar Das house boy (PWs 2, 3, 7 and 8) have been tendered, bhola Nath Tanti (PW 4) had come after the occurrence and the informant had given out the names of the aqpellacrs to him. PW 5 Gokul Mahto is a witness of inquest. PW 9 Saraswati Prasad, Advocates clerk has proved the writings on the first information report. PW 10 Dr. S. Ahmad had conducted postmortem examination on 13-12-1979 at 3.40 P. M. and submitted the postmortem report (Ext.3 ). PW 11 is Atul Kumar Karkatta Investigating officer, who after investigation submitted charge-sheet against the appellants. 6. The trial Court after considering the entire material on record has convicted and sentenced the appellants as mentioned above. 7. PW 10 Dr. S. Ahmad had conducted postmortem examination on 13-12-1979 at 3.40 P. M. and submitted the postmortem report (Ext.3 ). PW 11 is Atul Kumar Karkatta Investigating officer, who after investigation submitted charge-sheet against the appellants. 6. The trial Court after considering the entire material on record has convicted and sentenced the appellants as mentioned above. 7. Learned Counsel for the appellants contended that the order of conviction is had as out of eight accused, five have been acquitted and so the basil of the prosecution case has been shaken and doubt has been created about the verasity of the prosecution case. In the first information report the informant has given about injuries to her on hand and head while in court she said cheek and hand. She and her father have not been examined by any doctor, and no injury report has been brought on the record. As such the version of giving injuries to her and her father is not made out and on that score the overt act assigned to logeshwar Mahto is not made out and is against the appellants. Further the evidence on the record shows that there was prolonged litigation between the appellants and the informant and her sister. But the informant is not the victim, specially, when she was freely available and she has been spared by the eight persons who are said to be fully armed and why the informants son had been killed. The evidence of PW 4 and the informant is at variance, as she says that she had given the name of others whereas PW 4 is also silent about her Nana Dashrath going to the village and informing and about his going to police station and she has said only about herself and her mother going to the police-station. It appears from the evidence that the appellants were lodged in jail and were brought up before the C. J. M. for bail on that very day, but nothing has been said by the informant or the investigating officer about grant of bail. To appreciate these contentions the evidence will have to be examined and scrutinised with care. 8. Pw 1 Bimala Mahtain the informant has supported the version given by her in the first information report. To appreciate these contentions the evidence will have to be examined and scrutinised with care. 8. Pw 1 Bimala Mahtain the informant has supported the version given by her in the first information report. She has said that after taking the meal she, her father, deceased son, daughters and daughters the house boy were sleeping inside the new house and the mother has gone to sleep in the old home which is in the middle of the village. On getting the v ice from outside to take notice of court, she along with her son got up and went to the door with the light and on opening the door the three appellants entered in the house saying that a case has been filed against them in the revenue court. She and her son were pushed inside. Her son was assaulted by Remnu Mahto and his son Shiv Sankar (both appellants ). She wanted to save her son and asked not to do so but Jogeshwar Mahto gave a sword blow on her cheek and right hand. On getting the sword blow her son fell down. Besides the appellants, six others, that is the five acquitted accused and one Ranjan (since deceased), were there. They assaulted her father also. Thereafter the accused ran away. Her father had received injuries. After that her father went to inform her mother and others in the village. Then a Chaukidar Janm Jay Nayak. (PW 2), Dhirendra Mahto (since deceased) came and they were told about the occurrence. The occurrence was seen by other members of the family Then she with Gouri Mahtain her daughter, Dhirendra Mahto (since deceased) and the Chaukidar went to the police-station for lodging the report. She was also sent to the hospital. Her son died on account of injuries. In the hospital she was given medical treatment. She had given out the names of three appellants to the doctor. Her father Dashrath Mahto and Dhirendra Mahto have died. Other houses are at about half kilometer from the place of occurrence. The accused had appeared on that before the learned C. J. M. in connection with police case for cutting paddy crop from the field of her sister Lochan Mahtain and she could not say as to whether they had been granted bail on that date in the case or not. The accused had appeared on that before the learned C. J. M. in connection with police case for cutting paddy crop from the field of her sister Lochan Mahtain and she could not say as to whether they had been granted bail on that date in the case or not. It was not Known to her if Lochan Mahtain had filed another case in which bond was executed. Proceeding under Sec.145 of the Code of Criminal Procedure was pending between Lochan Mahtain and the accused. Her father Dashrath Mahto had given land by registered deed to her and her sister. The revenue case was also pending at Patna. It was not correct that on 11-12-1979 she accused had not reached the village as they were delayed in furnishing bail-bonds. She has no brother. Hari mahto is real brother of her father. Gangadhar and Saro are hii two other brothers. Gopal, Madhusudan and Remnu are her cousin brothers. Jogeshwar and Samsher are cousin brothers. Shiv Sankar is son of Remnu Mahto. She denied the defence suggestion about a dacoity and false implication and also not giving out the name to the villagers. 9. The next eye-witness is Gauri Mahtain (PW 6) daughter of the informant. She too has supported the version of her mother. She said that the accused on entering the house said case karate Ho and began to assault the brother who died. She had gone to the police-station along with her mother where her statement was recorded. Her mother and her grandfather were treated though he died later. On account of the dispute of land tbe occurrence had taken place. In cross-examination she has said about the relationship between her and Lochan Mahtaia and litigation. It was not correct that the accused had not entered in tne house. She denied that she was in old house and she had not seen the occurrence. Madhu Gope is younger to her and lives and works in another village. There was lantern which was showed to tha police though it was not seized. The police had examined her and her mother. Her sister Asha had not gone to the police-station. She and her servant did not receive any injury. She denied that there was no dacoity in the house at the evening and the people had come in the morning. The police had examined her and her mother. Her sister Asha had not gone to the police-station. She and her servant did not receive any injury. She denied that there was no dacoity in the house at the evening and the people had come in the morning. She denied the suggestion that the names had been given in the morning and that there is false implication of the accused. 10. Besides these two eye-witnesses PW 4 Bhola Tanti is Chaukidar who is said to have reached the spot after the occurrence to whom narration had been given by the informant, He said that he was Chaukidar of village arjunpur and in the night of occurrence Nani of Dhaneshwar (deceased)came to him and informed that in her house mar kat had been done. Upon this with him J to 4 persons went to the place of occurrence and saw the dead body of Dhaneshwar and injury on his person. He also saw injury on the person of Bimala Mahtain and her father. Bimala Mahtain told him that three appellants had killed (kat diva ). She also said about other accused but did not give out their names. Then he took them to the policestation and gave the statement. Dashrath and Dhirendra are dead. He had not seen the occurrence. He gave the name of the mother of Bimala mahtain the informant and said that she (mother) lives in the house about half a kilometer from the place of occurrence. Bindawati has said that she was not present at the time of occurrence and she bad no injury. It was pot correct that there was dacoity in her house. 11. Atul Kumar Karkatta. investigating officer in this case on registering the first information report reached the place of occurrence which is half a kilometer from the village He found Wood scattered where the dead body was lying and blood had fallen upto khalihan. He prepared the inquest report (Ex.4) and he also seized the blood stained earth, prepared seizure memo (Ext.5 ). He also found injury on the person of the informant and her father and sent them for medical examination and also the dead body for postmortem examination. 12. The postmortem examination had been done by the doctor, S. Ahmad (PW l) on 13-12-1989 at 3.30 p. m. who submitted the postmortem report (Ext.3 ). He also found injury on the person of the informant and her father and sent them for medical examination and also the dead body for postmortem examination. 12. The postmortem examination had been done by the doctor, S. Ahmad (PW l) on 13-12-1989 at 3.30 p. m. who submitted the postmortem report (Ext.3 ). He found the following injuries on the person of the deceased :- "i. Incised wound 4 "x1/2 "x1/2 "deep on the right side of the face cutting cheek right pinna and back of head posterior to right pinna. Direction anterior posteriorly. On dissection, the right temporal zone was found to be cut size 1/2" long. Right Zyogomatic bone was found cut 1 "long. II. Incised wound 4 "x 1/2 "x bone deep on the crown of head posterior part. A chip of bone 2" x 1" x vault thickness was found separate from the craneium but attached to the scalp. III. Incised wound 5 "x1 "x bone deep on crown of head post part. Direction right to left. Bone was found cut 5 "long with fracture of bone 2" long. Small fracture of both parital bones were present Meninges were found congested 2 remis blood was present In the cranial cavity. All the injuries were caused by sharp cutting weapon such as swords. The time of death is 24 to 48 hours before postmortem examination. The nature of the injuries was fatal. Death, in the opinion of the doctor, was caused due to shock and haemorrhage as a result of the injuries. The post-mortem report proved by the doctor is marked ext.3. " 13. The tendered witnesses have not been cross-examined, specially, asha Mahtain daughter and Madhusudan Das (PWs 7 and 8 ). 14. From all the evidence it appears that appellants Remnu Mahto and Jogeshwar Mahto are cousin and Shiv Sankar Mahato is son of Remnu mahto. Bimala Mahtain is also cousin sister of appellants 1 and 3. So they are all related interse. Dhaneshwar Mahto had got no son. When he had given his land to his two daughters on account of which were the litigations between the accused and the informant and her sister and on the day of occurrence also the accused were in the court of learned C. J. M. as accused. So it was but natural for them to take vengeance. When he had given his land to his two daughters on account of which were the litigations between the accused and the informant and her sister and on the day of occurrence also the accused were in the court of learned C. J. M. as accused. So it was but natural for them to take vengeance. They h ad enmity against the informant and her sister and also with the family and that is why they came to the house of the informant which was away from the village at a lonely place. They came armed with swords and that is why they gave out to take the summons from Chaibasa court and on opening of the door they said case karate ho and then the assault was made by the two appellants Remnu Mahato and Shiv Sankar Mahato upon dhaneshwar Mahto and when she ran to rescue her son she was assaulted by Jogeshwar Mahto giving sword injury on her vital parts of body. She is said to have received two injuries. Her father was also given injury and then all went away together. It was natural for Dhashrath Mahato to have gone to the old house to inform his wife, who in turn, went to the Chaukidar and brought him to the place of occurrence and the informant, her sister, her father and Chaukidar along with Janjannayak and Dhirendra Mahato went to the police-station and lodged the report. The investigating officer on coming to the place of occurrence found dead body there and also blood on the spot which he seized, He also found injuries on the person of the informant and her father and prepared injury report and sent them for medical examination. Thus the evidence on scrutiny does not suffer from any infirmity or lacuna, rather inspires confidence. The witnesses have been subjected to searching cross-examination and they have withstood the test. The eye-witnesses Bimala Mahtain and her daughter Gouri Mahtain are inmates of the house and their presence on the spot at the house is but natural. Nothing has come out that they were not present. Oouri Mahtain has denied the suggestion that she was at the old house at the time of the occurrence The suggestion cannot take place of positive evidence of the witnesses in court. Nothing has come out that they were not present. Oouri Mahtain has denied the suggestion that she was at the old house at the time of the occurrence The suggestion cannot take place of positive evidence of the witnesses in court. The defence has not cross-examined even Asha Mahtain and Msdbu Sankar Das the other inmates who have been tendered. Dasrath mahto has died. The other witness Dhirendra Mahto has also died. Bhola nath Tanti has given out as to what bad been given to him immediately after the occurrence. Nothing has come out in bis evidence to show that he was interested for the informant or against the accused. There is immediate disclosure to him and he also went to the police-station to lodge the report. This evidence about killing of Dhaneshwar has been corroborated by the evidence of the doctor who had found four injuries on the person of the deceased. 15. As regards non-examination of the doctor, who had examined bimala Mahtain (P. W.1) and her father Dashrath and also not producing the injury reports, it has been said by Bimala Mahtain in the first information report that she had received injury on her cheek and hand PW 4 Bhola Nath tanti has also said that he found injury on her person as well on her father. The investigating officer also said that he prepared injury report of the informant and her father and sent them for medical examination. No doubt, the doctor has not been examined and the injury report has not been brought on the record, but non-examination of the doctor or non-production of the injury report cannot be a ground to disbelieve the evidence of the witnesses in court. Injury reports and the examination of the doctor is only corroborative piece of evidence. 16. No doubt, the doctor has not been examined and the injury report has not been brought on the record, but non-examination of the doctor or non-production of the injury report cannot be a ground to disbelieve the evidence of the witnesses in court. Injury reports and the examination of the doctor is only corroborative piece of evidence. 16. Learned counsel for the appellants has referred to a decision in the case of Khoka Mahto and others V/s. State of Bihar, 1985 Eastern Criminal Cases 460 (Patna) where a Division Bench, has said that when a doctor conducting the post mortem examination had not been examined nor any satisfactory evidence for his non-examination given by the prosecution and even oral evidence of injury causing death has not been led in than the post mortem report ie not admissible as expert opinion and also further said that when the doctor has not been examined and there is no explanation for bis non-examination, the injury report becomes inadmissible. The value of the medical evidence is only corroborative. The main basis should be evidence rf the witnesses who have suffered injury and others who have seen the injuries. The evidence of the doctor and the injury report as well as post mortem report will show the injuries, their nature and the manner of injuries. The supreme Court in the case of Solanki Chiman Ukabhai V/s. State of Gujarat, AIR 1983 SC 484 , has been pleased to observe at page 487 para 12 :- "ordinarily, the value of medical evidence is only corroborative. It proves that the injuries could have teen caused in the manner alleged and nothing more. The use which the defence can make of the medical evidence is to prove that the injuries could not possibly have been caused in the manner alleged and thereby discredit the eye witnesses. Unless, however, the medical evidence in its turn goes so far that it completely rules out all possibilities whatsoever of injuries taking place in the manner alleged by eye witnesses, the testimony on the eye witness cannot be thrown out on the ground of alleged inconsistently between it and the medical evidence". But in the case of non-examination of the doctor or in case of non-production of the injury report the evidence of the eye witnesses cannot be thrown out ia its entirety. But in the case of non-examination of the doctor or in case of non-production of the injury report the evidence of the eye witnesses cannot be thrown out ia its entirety. The Supreme Court in the case of Malkiat Singh V/s. State of punjab, 1992 Eeastern India Criminal Cases 98, has observed at page 109 iu para 8 :- "it is settled law that corroboration is not a rule of law, but one of caution as an assurance. The conviction could be made on the basis of the testimony of a solitary witness. The occasion for the presence at the time of occurrence, opportunity to witness the crime the normal conduct of the witness after the incident, the nearness of the witness to the victim, his pre-disposition towards the accused, are some of the circumstances to be kept in view to weigh and accept the "ocular evidence of a witness. It is tot the quantum of the evidence but its quality and credibility of the witness that lends assurance to the Court for acceptance. Considered in this light, we have no hesitation to conclude that, PW 4 is a witness of truth and inspires us to believe his evidence. He would even in the absence of any light have identified the accused, who had attacked him and committed the murders of sleeping unarmed and innocent D-1 to D-4," 17. If the doctor would have been examined or injury report would have been brought on record it could have been specifically shown as to what type of injury had been recieved with what weapon and other details about injury. Even in the absence of the non-examination of the Doctor or non-production of the injury report the evidence of the eye-witnesses which otherwise inspires confidence can be accepted only this much that the victim of the assault had received injuries as said by them by the weapons. Further details of the injury cannot be looked into or gone into without the evidence of the doctor. But on account of non-examination of the doctor or non-production of the injury report the ocular evidence which does not suffer from infirmity cannot be dis-believed and it cannot be held that ao injury bad been received. Further details of the injury cannot be looked into or gone into without the evidence of the doctor. But on account of non-examination of the doctor or non-production of the injury report the ocular evidence which does not suffer from infirmity cannot be dis-believed and it cannot be held that ao injury bad been received. Not only the informant says about the receiving the injury but PW 4 chaukidar says thad he had seen injuries PW 11 I. O. says that he had prepared the injury report. In view of this corroborative evidence of the chaukidar and the I, O. the version of informant that she has received injury cannot be disputed. A Division Bench in the case of Khoka Mahto and others v. State, (supra) has cleatly observed at page 461 ia para 5 :- "but in the case the only oral evidence available is that Baijnath was hit by edge of Kudal no witness said what injury was caused. In absence of post mortem report and in the absence of any material it is difficult to come to a definite finding that the cause of death was the injuries inflicted by the appellant on Baijnath. ". A learned single Judge of this Court in Ramdeo Yadav V/s. State of Bihar, 1977 bbcj 775, where though injury reports were produced but doctor was not examined, has said at page 778 in Para 6 :- "but, even if these injury reports are excluded from the evidence, there remains sufficient material on the record to prove in general way the fact that these witnesses had sustained injuries in the course of the occurrence. Indeed their evidence is there on this point. Then there is also the evidence of the investigating officer who had found injuries on their persons and had referred them to the doctor for medical examination. Of course, these materials cannot be enough to prove the specific injury said to have been sustained by them but, they are sufficient to establish the broad facet that they had sustained some injuries in course of dacoity. " 18. In this case the two appellants Remnu Mahto and bis son Shiv shankar Mahto had got specific role of assault giving sword injuries to the deceased. Jogeshwar Mahato is said to have given assault to the informant. " 18. In this case the two appellants Remnu Mahto and bis son Shiv shankar Mahto had got specific role of assault giving sword injuries to the deceased. Jogeshwar Mahato is said to have given assault to the informant. To show Jogeshwars overt act of assaulting the informant, when she wanted to save her son and which was a natural conduct of her, is made out. Origiginally the appellants and the others (including 5 acquitted and one deceased)were put on trial under Sec.302/149 I. P. C. Evidence against all of them is that they came together. The learned trial court has acquitted the five accused and convicted the appellants only under Sec.302/34 I. P. C. A court on finding the evidence to be made out can convict the accused with the aid of Sec.34 I. P. C. if it cannot convict under Sec.149. The supreme Court in the case of Baital Singh aud other V/s. State of U. P. , 1991 eastern Criminal Cases 8 at page 9 (SC) in Para 40 said :- "this Court in Lachman Singh V/s. The State, 1952 SCR 839 : AIR 1952 sc 167 and Karnail Singh V/s. State of Punjab, 1954 SC 904 : AIR 1954 SC 204 has held that the conviction under Sec.149 can be substituted by Sec.34 keeping in view the facts of the case. 19 The Court can look to the facts of the case and try to find out if the accused had shared the common intention. Each and every case will have to be scrutinised in the light of the facts including the cases of those already acquitted to come to a conclusion whether the accused under appeal had shared common oject and what is their role. In the case of Ram Bilash singh V/s. State of Bihar, 1989 SC 1593 in paragraph 7 it has been said : "it is true that in order to covict persons vicariously under Sec.34 or 149 I. P. C. it is not necessary to prove that each and every one of them had indulged in overt acts. Even so there must be material to show that overt act or acts of one or more of the accused was or were done in furtherance of the common intention of all the accused or in prosecution of the common object of the member of the unlawful assembly. Even so there must be material to show that overt act or acts of one or more of the accused was or were done in furtherance of the common intention of all the accused or in prosecution of the common object of the member of the unlawful assembly. " In the case of Bratht @ Sukhdeu Singh V/s. State of Punjab, 1991 Crlj 402 ; 1991 SC 318, their Lordships have considered about Sec.34 and 149 i. P. C. and also the effect of acquittal and the consideration of the evidence on the record in appreciating the evidence against non-acquitted accused. It has been observed at page 406 in Para 9 Crlj :- the general principal of the criminal liability is that it primarily attaches to the person who actually commits an offence and it is only such person that can be held guilty and punished for the offence Sections 35 and 149 of the Penal Code deal with the liability for constructive criminality. Sec.149 creates a specific offence and postulates an assembly of five or more persons having a common object. Sec.34 has enacted a rule of co-existence culpability when offence is committed with common intention by more than one accused. The offence of criminal conspiracy punishable under Sec.120-B I. P. C, consists in the vary agreemeat between two or more persons to commit a criminal offence. Before these sections can be applied, the court must find with ctrtaintx that there were at leant two persons sharing the common intention or five persons sharing the common objsct or two persons entering into an agreement, the principle of vicarious liability does not depend upon the necessity to convict a requisite number of persons; it depends upon proof of facts beyond reasonable doubt which makes such a principle applicable. As observed by Krishna Iyer, J. in Harsad Singh V/s. State of Gujarat, AIR 1977 sc 710 : 1977 Cri LJ 352. "if some out of several accused are acquitted but the participating presence of plurality of assailants is proved, the conjoint culpability of the crime is in escapable. "when more persons than one are prosecuted and one of them is convicted and and others are acquitted, the order of acquittal cannot be set aside unless an appeal has been duly preferred in that behalf against the said order. "when more persons than one are prosecuted and one of them is convicted and and others are acquitted, the order of acquittal cannot be set aside unless an appeal has been duly preferred in that behalf against the said order. But there is no bar to the appellate court acting under Sec.386 of the Code of Criminal procedure to appreciate the whole evidence in a given case for tbe purpose of accepting or rejecting the appeal before it. The evidence examined as a whole may show that the appellant is guilty under Sec.34 of the Indian Penal Code having shared a common intention with the other accused who are acquitted and the acquittal of these persons was bad. There is nothing in law to prevent the appellate court from expressing that view and recording that fiading. The conviction of the appellant in such a case could bo maintained on the basis of that finding. This is the correct legal approach to prevent miscarriage of justice. A wrong and erroneous order of acquittal though irreversible in the absence of an appeal by the State would not operate as a bar in recording constructive liability of the co-accused when concerted action with common intention stands proved. In Sunde Singhs case, AIR.1962 SC 1211: 1962 (2) Cr LJ 290, (supra), four persons were tried for offence under Sections 302/34, I, P. C. The Sessions judge gave the benefit of doubt to Rachpal Singh and acquitted him but convicted the other three of the offences charged. No appeal was preferred against the acquittal of Raohpal Singh. But the three convicted persons appealed to the High Court. The high Court was of the view that the Sessions Judge was wrong in giving the benefit of doubt to Raohpal Singh that Rachpal Singh was present at the scene of occurrence and all the four accused had the common intention alleged by the prosecution. The appellants in that case contended before the Supreme Court that tbe High Court had no jurisdiction or authority to embark upon an enquiry into the propriety or Validity of the acquittal of rachpal Singh and that its finding that Rachpal Singh had taken part in the offence as alleged by the prosecution had introduced serious infirmity in the judgment of the High Court. Gajendragadkar, J. as he then was speaking for the Bench of three Judges observed at pages 1215-16 of AIR At page 294 of Cri LJ aa under:- "when the High Court in appeal considered the case against the three appellants, it had inevitably to examine the comment made by Mr. Sethi againgst the reliability of the witnestes on the ground that their evidence against Rachpal Singh had not been accepted by the trial court and that necessarily meant that the High court had to apply its mind to that problem as well. If in dealing with the case presented before it on behalf of the appellants, it became necessary for the High Court to deal indirectly or incidentally with the case against Rachpal Singh, there is no legal bar at all. It may be that in considering the evidence as a whole the high Court may hava come to the conclusion that the evident; a against Rachpal Singh was unsatisfactory and if it had come to such a conclusion, it would have examined the said evidence in the light of this infirmity. On the other hand, after considering the evidence, the High Court may well have come to the conclusion as it has, in fact, done in the present case, that the evidence against Rachpal Singh is also good and need not have been discarded. In our opinion, there is no doubt that if in appreciating the points made by the appellants before it the High Court had to consider whole of the evidence, in respect of the accused persons, it was free to come to one conclusion or the other in respect of the said evidence, so far as it related to Rachpal Singh. That is why with him that the point made by Mr. Sethi that section 423 (1) (a) precluded the High Court from considering the merits of the order of acquittal even incidentally or indirectly cannot be upheld. That is why with him that the point made by Mr. Sethi that section 423 (1) (a) precluded the High Court from considering the merits of the order of acquittal even incidentally or indirectly cannot be upheld. " It was pointed out that when the High Court considered the criticism against the prosecution evidence based on the assumption that the said evidence was found to be unreliable in so far as Rachpal singh is concerned, it was not appreciating the evidence with a view to reverse the order of acquittal passed in favour of Rachpal singh ; it was appreciating only with a view to decide whether the said evidence should be believed against the appellants before it and observed thus; at page 1216, of AIR : At page 295 cri LJ :- "indeed, as an appellate court, the High Court has to consider indirectly and incidentally the evidence adduced against an accused person who had been acquitted by a trial court in several oases where it is dealing with the appeals before it by the co-accused persons who had been convicted at the same trial and in doing so, the High Court and even this Court sometimes record its indirect conclusion that the evidence against the acquitted persons was not weak or unsatisfactory, and that the acquittal may in the sense be regarded as unjustified. " 20. The Chaukidar (PW 4) has also given out the injuries seen by him on the informant and her father. The investigating officer on coming to the spot found the injuries on the person of the informant and her father and prepared the injury reports and sent them for medical examination. All these are sufficient materials to prove in a geneaal way that the informant and her father bad sustained the injuries in the same transaction. The informant suffered injury when she tried to save her son and her father was also assaulted. It is something different that the details about the injuries cannot be established in the absence of the doctor or the injury report. However, the participation of the person, who has given sword injury to her, is established on this score. 21. The Supreme Court has also considered the effect of acquittal of some of accused upon the remaining appellants. It is something different that the details about the injuries cannot be established in the absence of the doctor or the injury report. However, the participation of the person, who has given sword injury to her, is established on this score. 21. The Supreme Court has also considered the effect of acquittal of some of accused upon the remaining appellants. In the case of Yaswant V/s. State of Maharashtra, AIR 1973 SC 337 , it has been observed at page 343 in para 23 :- "we do not think that this decision, which depends upon its own facts, as criminal cases generaly do lavs down any general principle that where the identity of one of the participants is doubtful, the whole case must and in acquittal. Such a question belongs to the realm of facts and not of law. " In the case of Molu and others V/s. State of Haryana, AIR 1976 SC 2499 , their lordship have observed at page 2405 in Para 10:- "it is well settled that mere fact that out of many accused some are acquitted is not sufficient to entitle rejection of the entire prosecution case. On the other hand, this Court has ponted out on times without number and Particularly in the cases Abdul Gani V/s. State of Madhya Pradesh, AIR 1954 SC 31 ; Kanbi Manji Virji V/s. State of Gujarat, 1970 3 SCC 103 : AIR 1970 SC 219 , and Dharam das V/s. State of U. P. , 1973 2 SCC 216 : AIR 1973 SC 2195 , that the Court should make every effort to dis-engage the truth from the falsehood and to shift the grain from the chaff rather than take the course of rejecting the entire prosecution case merely because there are some establishments. " In the case of Kishan Lal V/s. State of Haryana, AIR 1980 SC 1252 , it has been said at Page 1253 in Para 4 : that "we are not satisfied that merely because the trial court has ultra-cautiously acquitted some one, the higher Court must, for that reason, acquit everyone. 22. " In the case of Kishan Lal V/s. State of Haryana, AIR 1980 SC 1252 , it has been said at Page 1253 in Para 4 : that "we are not satisfied that merely because the trial court has ultra-cautiously acquitted some one, the higher Court must, for that reason, acquit everyone. 22. It has also been said that PW 6 is silent about PW 4 Bhola Nath tanti coming or giving put the names and also does not say about her grandfather going to the village and informing his wife and also not said about dashrath going to police-station but only said about herself and her mother. As to this evidence of PWa 1 and 4 is to the effect that Dashrath father of the informant went to the village to inform his wife and then the wife went to the Chaukidar (PW 4) who came to the spot along with others. The informant went to the police station along with Dashrath (deceased) Oouri Mahtain (PW 6), Janjannayak (PW 2), Dhirendra (deceased) and Chaukidar (PW 4 ). Even if these facts have not been stated, yet there is no reason for rejecting the evidence of PWs.1 and 4 and the I. O. who have categorically given out the same and have been found to be made out. The Supreme Court has said in the case of State ofu. P. V/s. Shanker, 1981 Cr LJ 23 that witness expressing ignorance about collateral facts, is no ground for rejecting the ocular evidence when general agreement between them with regard to the substratum of the prosecution case is there. 23. Learned counsel for the appellants has argued that there was no common intention of the appellants and there is no overt act. But this contention is also found to be untenable. The two appellants, Remnu Mahato and Sbiv Sbankar Mabato assaulted the deceased by their swords, Jogeshwar also was armed with sword. He too entered with his father and brother. When the mother (informant) ran to save her son and requested them not to kill then she too was given injury on her vital parts which shows that the appellants had shared the common intention. He too entered with his father and brother. When the mother (informant) ran to save her son and requested them not to kill then she too was given injury on her vital parts which shows that the appellants had shared the common intention. Common intention can be gathered from the act also done at the spur of the moment, Their coming and participating from the beginning to the end and doing various acts are quite sufficient to establish their common intention. In the case of Jogendra ahlr and others V/s. State of Bihar, 1971 SCC (Cr) 697 at 698 it has been stated :- "section 34 can only be applied when a Criminal Act is done by several persons in furtherance of the common intention of all. No overtact has been proved or established on the part of the appellants which showed that they shared the common intention of the person or persons who inflicted the injury or injuries on the head of the deceased which led to his death. " In the case of Ram Bilash Singh V/s. State of Bihar, AIR 1989 SC 1593 it has been observed in Para 7 :- "it is true that in order to convict persons vicariously under Section 34 or 149 IPC it is not necessary to prove that each and every one of them had indulged in overt acts. Even so there must be material to show that overt act or acts of one or more than of the accused was or were done in furtherance of common intention of all the accused and in prosecution of the common object of the members of the unlawful assembly. In this case such evidence is lacking ; hence the appellant cannot be held liable for the indidual act of Dinesh Singh. " In the case of Gupteshwar Nath Ojha V/s. State of Bihar, AIR 1976 SC 1649 the supreme Court has observed: "in the absence of any overtact or even a shout or an oral statement, he could not be convicted even with the aid of Sec.34. " again in the case of Ranga Swami V/s. State of Tamil Naidu, 1989 SC (CR) 617 looking to Paragraph Nos.10 and 11 it appears that for common intention circumstantial inference can be drawn. " again in the case of Ranga Swami V/s. State of Tamil Naidu, 1989 SC (CR) 617 looking to Paragraph Nos.10 and 11 it appears that for common intention circumstantial inference can be drawn. There was no evidence of instigation or assistance by the appellant to the other accused who took active part in a murderous assault. From mere presence of the appellant at the scene of occurrence along with other accused persons it cannot be held that he shared the common intention with them. But as there was subsequent conduct of the appellant to surrendering at the police-station along with other accused which indicates prior meeting of mind. In the case of Han Kishan Singh V/s. State of Bihar, 1988 SC 863 their Lordships have observed in Para 28 that "common intention under Sec.34 IPC is not by itself an offence But it creates a joint and constructive liability for the crime committed in furtherance of such common intention. As no overt act whatsoever has been attributed to the appellants, it is difficult to hold on the facts and that they shared the common intention with. . . . . . . . . " 24. Following these principles of law for appreciating the evidence in the instant case we find that the appellants and 5 others are said to have come to the house of the informant. Three of the appellants entered armed with swords. Appellants 1 and 2 Remnu Mahato and Shiv Shankar assaulted dhaneshwar (deceased) and when Dhaneshwars mother Bimala Mahtain (PW 1) rushed to save her son, she was given injuries on her head and hands. The five other accused were standing outside and then they also came and the accused are said to have assaulted Dashrath the father of the informant. No doubt the medical evidence has not been brought on the record to show the injuries, their nature and other details, but the fact remains that the informant and her father were injured for which first information report has been lodged giving out about the injuries, individually given. P. W.4 Chaukidar has also given out about the injuries. This shows that Jogeshwar had also participated in the occurrence by giving out injuries to the informant when she rushed to save her son. P. W.4 Chaukidar has also given out about the injuries. This shows that Jogeshwar had also participated in the occurrence by giving out injuries to the informant when she rushed to save her son. This overt act and coming with a sword along with others in the dead of night and remaining at the place of occurrence from the beginning to the end and going away together are sufficient to establish to Jogeshwar had shared the common intention with the other accused (appellants) who have caused the death of Dhaneshwar. 25. Learned counsel for the appellants has argued that appellant Nos.2 and 3 were minor at the time of occurrence and so they should not have been tried along with appellant No.1, and other accused and also they could not be sentenced to rigorous imprisonment for life under Sec.302/34 I. P. C. As to this contention under Sec.313 Cr. P. C, the appellants, namely, shiv Shankar and Jogeshwar have given out their ages as 22 and 20 years. Learned trial court in the judgment in the year 1989 has assessed their ages as 25 years. The occurrence took place on 11-12-1989. So according to statement under Sec.313 Cr. P. C. the ages of the appellants at the time of occurrence would have been 12 and 10 years respectively whereas according to the judgment 15 years of both of them. In any case they appear to be of 15 years age at the time of occurrence and so minors and juvenile. The question of age has not been raised in the trial court though it has been done here. Learned counsel for the appellants has referred to a decision in the case of Gopi Nath Ghosh V/s. State of West Bengal, AIR 1984 SC 237 wherein their Lordships set aside the conviction and sentence of the appellant under Sec.302 I. P. C. as he was between 16 and 17 years of age and so a juvenile delinquent, and sent the case for disposal to the court below in accordance with the provisions of West Bengal Children Act. Now in the state of Bihar Juvenile Justice Act, 1986 has replaced the earlier Children act. Now in the state of Bihar Juvenile Justice Act, 1986 has replaced the earlier Children act. A Full Bench of this Court in the case of Krishna Bhagwan V/s. State of bihar, 1989 PLJR 507 has held that Sec.26 of the Act gives out the procedure regarding pending eases that is trial and appeal pending before the enforcement of this Act, where the Court is to proceed in accordance with the Criminal Procedure Code till the determination of the guilt, that the claim of being juvenile at the time of occurrence can be raised for the first time in the appellate Court (the High Court) and the High Court should proceed with the hearing if the order of the lower court is affirmed, that a finding under Sec.32 should be called for from the court below and that for determining the age in dispute the court should get the accused examined by the Medical Board and than determine the age on the basis of the material on record including the opinion of the Medical Board and that the maximum period of detention under Sections 21 and 22 should not be more than 3 years. 26. Thus this Court has got jurisdiction while sitting in appeal as a juvenile Court to decide the guilt or otherwise of the accused and thereafter pass appropriate order in accordance with law after ascertaining the age. Here it has been found that appellant Nos.2 and 3, namely, Shiv Shankar mahato and Jogeshwar Mahato are guilty of offences under Sections 302/34 i. P. C. and that the ages of these two appellants have been assessed by the trial court as about 15 years at the time of occurrence, so they were juvenile at the time of occurrence and entitled to the benefit of this Act. They cannot be given sentence of death or life imprisonment or kept in any jail, because they are juvenile. They have attained the age of 14 years and it will not be in their interest or also in the interest of other children to be kept in a special school under the Juvenile Justice Act. The Supreme Court in the cass of shrikrishama and Pandit V/s. State of U. P. , AIR 1991 SC 43 : 1990 Cri. They have attained the age of 14 years and it will not be in their interest or also in the interest of other children to be kept in a special school under the Juvenile Justice Act. The Supreme Court in the cass of shrikrishama and Pandit V/s. State of U. P. , AIR 1991 SC 43 : 1990 Cri. LJ 2650 dealing with a case under U. P. Children Act 1952 has held that the accused was a child under Sec.2 (4) of the Act and he could not be sentenced to transportation or imprisonment for life as per Sec.27 and be could be dealt with only under Sec.33 of the Act. The question of application of sub-section (2) of Sec.33 also did not raise as had already been convicted and so he could not be discharged with admonition and similar view was taken by the Supreme Court in the case of Bhupram V/s. State of U. P. , AIR 1989 SC 1329 where the conviction was sustained but sentence was quashed. So their Lordships giving the accused benefit of probation of good conduct released him upon executing a bond to the satisfaction of the Sessions Judge. , jaunpur and further considering the gravity of the offence directed the accused to pay a fine of Rs 2000/- to be recovered and paid to the members of the deceased family. 27. Therefore, in the instant case, following the aforesaid observations of the Supreme Court while maintaining the conviction of appellants Shiv shankar Mahato and Jogeshwar Manato, they are directed to execute a bond of good conduct for a period of three years to the satisfaction of the learned Sessions Judge concerned and considering the gravity of the situation each of the appellants, who are now grown up and over 25 yeara of age, to pay a fine of Rs.5000/- each and on recovery of the said amount, shall be paid to Bimala Mahtain (informant), though this amount is not adequate or commensurate compensation for the loss of her son and injuries too suffered by her. As regards appellant Remnu Mabato, his conviction and sentence under Sections 302/34 I. P. C. and sentence of rigorous imprisonment for life is matained. This appeal is dismissed with modification in the sentences of appellants 2 and 3, namely, Shiv Shanker Mahato and Jogeshwar Mahato. Amir Das, J.-I agree. Appeal Dismissed with Modification in sentence.