Judgment S. K. Homcbaudhuri, J. 1. This appeal is directed against the judgment and order of conviction and sentence dated 3-4-1992 passed bv leaned 9th additional Sessions Judge, Rohtasat Sasaram Session Trial No.28 of 1981/22 of 1990. 2. The prosecution case as disclosed in the fardbeyan (Ext.2) of rajendra Singh,. recorded by Sub-Inspector of Police Oinara P. S on 16-5-79 at 0045 hours, is that in the evening of 15-5/9 while the informant, rajendra Singh was sitting at the platform in front of their Dalan his brother birendra Singh (P. W.3) was being taught by Suryadeo Singh (P. W 4)on a chowki by the side of the platform in the light of a lantern kept thereon. The informants father Harihar Singh, the deceased, was lying on a cot nearby. At around 7.45 P. M when the regional news was over, about 12 persons came there with guns, Idthi, bhala, torch etc, in the house and amongst them he recognised the appellants and accused Nagina Singh. The accused lalan Singh and accused had gun. accused Kameshwar singh had country made pistol and accused Nagina Singh had lathi in their hand asked the informant and others to sit quietly and shut their eyes. The accused appelpent Chadrama Singh aimed his gun at the roof of Annan Singh, the neighbour of Informant, who had a licenced gun. On seeing this harihar Singh (deceased) got up from the cot and started suffling with then the accused Nagina Singh ordered to kill Harihar Singh and Lallan Singh fifed his gun on Harihar Singh and due to gun shot injury harihar Singh fell down. Hearing hullah of the informant as well as sound of gun shot the neighbours raised alarm and rushed towards the P. O. In the meantime Annant Singh neighbour of the informant also fired from his roof. The accused persons and other miscreants thereupon fled away towards north and while fleeing away they took away a Transistor and wrist watch kept on the chowki Condition of Harihar Singh being serious, he was taken to the house of Dr. Ganesh Prasad for treatment. This fardbyan was recorded by the S. I. , Dinara Police Station, in the chamber of the doctor. On the advise of the doctor at Dinara, Harihar Singh was carried for treatment at patna but on the way to Patna he succumbed to injury. 3. Ganesh Prasad for treatment. This fardbyan was recorded by the S. I. , Dinara Police Station, in the chamber of the doctor. On the advise of the doctor at Dinara, Harihar Singh was carried for treatment at patna but on the way to Patna he succumbed to injury. 3. Further case of prosecution is that the accused appellants lallan singh, , Kameshwar Singh and accused Nagina Singh had stolen paddy from their Khalihan and Harihar Singh had told the villagers about the theft and due to which accused bore grudge against them and particularly against the deceased, Harihar Singh and that might be the motive to kill Harihar Singh. On the basis of fardbyan formal F. I. R. was drawn and Dinara polices case No 9/79 under Sec.147, 148, 307/34 of the I P. C. and Sec.27 of the Arms Act was registered After the death of Harihar singh Sec.302; of the I. P. C. was added The police after investigation submitted charge-sheet against the appellants and accused Nagina Singh. After the case wae committed, the learned Sessions Judge, on perusal of the materials, framed charges under Sec.304/34 of the I. P. C and Sec.27 of the Arms Act, against the accused appellants. Accused Nagina Singh died before framing of charge. The accused having not pleaded guilty, the case was tried. 4. To bring home the charges against the appellants, the prosectition examined eight witnesses. Out of the eight witnesses P. W.3, P. W 4 and p. W.6 are the eyewitness to the occurrence, P W.7 Dr Ganesh Prasad is the Medical Officer, who held autopsy on the body of the deceased Harihar singh, P W.8 is the Investigation Offlcer, who investigated the case had submitted charge sheet and other witnesses are formal witnesses. 5. P. W.3, Birendra Singh has deposed that on, 15-5-79 in the evening he was being taught by P. W.4, Suryadeo Singh and they were sitting on the platform along with his brother Rajendra Singh. His father was also lying on a cot by the side of the plateform and a lantern was burning. One Ram parvesh Singh (D. W. I) was also studying with him Just after they heard the regional new from the transistor, about 12-14 persons arrived with lethal weapons including fire arms there and asked them to sit quietly. He saw appellant , lallan Singh. One Ram parvesh Singh (D. W. I) was also studying with him Just after they heard the regional new from the transistor, about 12-14 persons arrived with lethal weapons including fire arms there and asked them to sit quietly. He saw appellant , lallan Singh. Nagina Singh and Kameshwar singh amongst those, persons in. the light of lantern and flash of torch. Appellant Nos 1 and 2 had gun in their hands, appellant No.3 had pistol in his hand and accused Nagina Singh had a lathi in bis band. He further deposed that reaching at the place of occurrence, appellant, No 2 pointed his gun towards the roof of the house of Annnnt Singh, their neighbour, who had a licenced gun and his father (deceased) got up from cot arid stated scuffling with. pushed harihar Singh and thereafter lallan Singh fired from his gun on Harihar singh who fell down after sustaining gun shot injury Hearing alarm and sound of firing the villagers arrived there and, the miscreants fild away A lantern was burning and there was sufficient light. Condition of his father being setious, he was taken the Dinara hospital by Rajendra Singh (P. W.6) accompanied by P W.4 and others and his father died while he was being taken for treatment to Patna. P. W 4. Suryadeo Singh was declared hostile P W.4 deposed that on the date of occurrence i e. , 15-5-79, at 7 30 p m while he was teaching Birendra Singh (P. W 3) on the platform, in front of the Lalan of in the light of lantern and while the, informant was on platform, his father (deceased) was lying nearby on a cot Soon after they heard the regional news, about 10-12 persons armed with lathal weapons came there and asked them to shut their eyes and keep mum Out of fear he kept his eyes shut and kept mum and he could not see as to who were the miscreants and who shot Harihar After, the miscreants fled away, he found seriously injured and he went along with P. W. with injured for his treatment. P. W 6 had deposed that in the evening of 15-5-1979 infront of the Dalan his brother was being taught by P. W.4 sitting on the platform and he was also, sitting there and that bis father (the deceased) was lying nearby on a cot Soon after the local news was over, about 12-13 persons came in the place of occurrence armed with various lethal weapons including fire arms. Out of them he could recognise appellant Nos: 1, 2, 3, and accused Nagina singh. Appellant Nos 1 and 2 had gun in their hands, appellant No.3 had a Country made pistof, Nagina Singh had a lathi in his hand and other miscreants were also armed with various weapons After reaching the place of orcurrence the miscreants asked them to shut their eyes and keep mum. Thereafter appellant Cbandrama Singh pointed his gun towards the roof of the house of Annant Singh, their neighbour, who had a licenced gun. and, on seeing that his father got up from the cot and started scuffling with Cbandrama Singh In course of scuffling, Cbandrama Singh pushed his father back Then Nagina Singh asked appellant lallan Singh to kill and lallan Singh fired at with his gun as a result of which sustained injuries and fell down. He raised alarm and villagers arrived there. P. W 6 has stated in the light of lantern which was burning he could identify the appellants He also deposed that few months back the appellants had stoled paddy from their Khalihan and his father told about the theft to the villagers which might be the reason for killing his father. 6. P. W.7 is the Dr. Ganesh Prasad who held autopsy over the dead body deposed that he found bn examination numerous lacerated punctured circular Pea shaped on front of chest around the left elbow and upper part of abdomen. He took out nine pilleta from the body of the deceased and handed over the same to the police. He also stated (hat the injuries were caused by gun shot Accused in their defence examined two witnesses D. W. I has deposed that on the date of occurrence i. e.15-5-1979 he along with p. W.3 was taught by P W.4 on the platform with the help of a lantern in the house of Harihar Singh. He also stated (hat the injuries were caused by gun shot Accused in their defence examined two witnesses D. W. I has deposed that on the date of occurrence i. e.15-5-1979 he along with p. W.3 was taught by P W.4 on the platform with the help of a lantern in the house of Harihar Singh. Besides them, P. W.6 informant was sitting on the platform and Harihar Singn (deceased) was, lying nearby on a cot. After the local news was over, about 12-14 unknown miscreants having various lethal weapons came and caught hold one on the dacoits. He was pushedand another dacoit fired as a result of which he sustained injuries. The Luisereants covered their faces with gamcha and he could not identify any of them. After the miscreants Sed away was found injured. D. W.1 corroborated the evidences of P. W 3, P. W.6 on all material facts except identification of accused D W.2, a co-villager, who arrived after the incident deposed that after hearing hullah and alarm, he came to the place of occurrence and found in injured condition. The accused were examined under Sec.313 of the I. P. C. and they simply denied of being involved in the incident and murder of. Their case is that they have been falsely implicated in the case. 7. The learned Sessions Judge after conclusion of the hearing, on perusal of the materials on records, by the impugned judgment held that the prosecution has been able to establish the charge under Sec.303/34 i P C and under Sec.27 of the Arms Act against all the accusscd-appellants beyond reasonable doubt. The learned Sessions Judge also held that charge under Sec.302 has been established against lallan Singh. Accordingly, the learned Sessions Judge convicted all the accused-appellants under section 302/34 I P. C. and under Sec.27 of the Arms Act. The learned sessions Judge also convicted accused appellant lallan Singh under Section 302 I. P. C. by the impugned judgment. 8. The learned Sessions Judge sentenced each of accused-appellants and Rameshwar Singh to undergo RI for life for commission of offence under Sec.302/34 I P C. and further for a period of 3 years under Sec.27 of the Arms Act. The learned sessions Judge also convicted accused appellant lallan Singh under Section 302 I. P. C. by the impugned judgment. 8. The learned Sessions Judge sentenced each of accused-appellants and Rameshwar Singh to undergo RI for life for commission of offence under Sec.302/34 I P C. and further for a period of 3 years under Sec.27 of the Arms Act. The learned Sessions Judge sentenced the accused lallan Singh to undergo RI for life for commission of offence under section 302 I P. C. and further sentenced him to undergo RI for three years under Sec.27 of the Arms Act. The learned Sessions Judge, however, has not awarded separate sentence to appellant lallan Singh under Sec.302/ 34 I P. C Sentences passed against the appellants have been ordered to run concurrently. 9. Heard learned counsel for the appellants as well as learned public prosecutor. 10. Learned counsel for the appellants has submitted the learned sessions Judge convicted the appellants on the basis of the evidence of P. W.3 and P. W.6. who are apparently interested witnesses. The prosecution case is that the motive of killing of by the appellants, could be traced from the fact that accused appellants and accused Nagina Singh had stolen paddy from the Khalihan of and discussed about the theft with the villagers but on their advise he did not lodge any f. I. R. against the accused appellants and because of that the appellants bore grudge against. learned counsel for the appellants has submitted that when admittedly the deceased or the informant did not lodge any case on the alleged theft of paddy by the accused-appellants, they could not bear any grudge against them. On the contrary, the informant and his brother P. W.3 naturally bore grudge against the appellants for the alleged theft, of their paddy and that might be the reason for implicating the appellants in the case although in fact they could not recognise any of the miscreants who came to their residence in the date of occurrence for committing dacoity. Learned counsel for the appellants has submitted that admittedly p W.4 and D W.1 were present at the time of occurraoce along with P. W.3 and P. W.6, and they are not interested witnesses. But none of them corroborated the testimony of P. W.3 and P. W.6 implicating appellants ia the alleged offence although appellants were well known to them. Learned counsel for the appellants has submitted that admittedly p W.4 and D W.1 were present at the time of occurraoce along with P. W.3 and P. W.6, and they are not interested witnesses. But none of them corroborated the testimony of P. W.3 and P. W.6 implicating appellants ia the alleged offence although appellants were well known to them. That apart, admittedly, attracted by the alarm and the sound of firing a number of villagers immediately rushed to the place of occurrence and due to which the miscreants fled away but none of the villagers, particularly, the neighbour annant Singh, who said to have fired from his roof to scare away the miscreants, has been examined by the prosecution. The learned counsel for the appellants has submitted that withholding of examination of the natural and non-interested witness gives rise to presumption that if examined, they would not have supported the prosecution case that the appellants were involved in commission of the offence, under the circumstances, it is not safe to convict the accused appellants and they are entitled to be acquitted on benefit of doubt. 11. Learned Public Prosecutor on the other hand has submitted that the failure of the prosecution to examine other witnesses cannot throw the case of prosecution out of court, when the evidence of the eye-witnesses do not suffer from any infirmity inspite confidence. Elaborate cross examination of the witnesses could not at all shake their testimonies. According to the learned public prosecutor testimonies of P W.3 and P. W.6 are consistent and free from contradiction learned public prosecutor has further submitted that D. W 1, in his deposition has supported the case of the prosecution in all material facts except recognition of the accused appellants. But when examined under Sec.161 Cr. P. C. he stated before the I O. that P. W.3 immediately after occurrence disclosed that accused appellants were involved in commission of the offence. But he supressed this fact in his deposition and has introduced the new story that the accused could not be recognised because they covered their faces with gamcba. Unshaken evidence of P. W.3 is that soon after the villagers came to the place of occurrence he disclosed the fact of involvement of the accused-appellants in the crimes. 12. But he supressed this fact in his deposition and has introduced the new story that the accused could not be recognised because they covered their faces with gamcba. Unshaken evidence of P. W.3 is that soon after the villagers came to the place of occurrence he disclosed the fact of involvement of the accused-appellants in the crimes. 12. It have considered the submissions of the learned counsel for the appellants as well as of the learned Public Prosecutor and perused the materials. on record. I find force on the submission of learned Public prosecutor that it is not the quantity but the quality of evidence which has to be taken into consideration and if the evidence of P. W.3 and P W 6 are believed, non-examination of other witnesses by the prosecution cannot throw the prosecution out of the court. From the evidence of D W.1 the date, time and place of occurrence has been established that the deceased was seriously injured by gun shot to which he ultimately succumbed. It has been established that at the time of occurrence P. W.4, P. W.6, D. W. I and the deceased were present and that a lantern was burning at that place with the help of which P. W.4 was coaching P. W.3 and D. W. I. Now it is to be seen as to whether the accused-appellants were involved in the crime of murdering. Harihar Singh. P. W 4 and D. W. I have corroborated the evidence of P W.3 and P. W.6 on all material facts, except recognition of the accused-appellants and their involvement in the crime. P. W.4 has deposed that as commanded by the miscreants scon after arrival at the place of occurrence, he kept his eyes shut and for which he did not see as to who were involved in the crime. But he stated that he accompanied P. W.6 when injured was taken to the hospital and in chamber of the doctor, from P. W.6 he came to know that accused-appellants were involved in the crime. On perusal of the evidence on records I find that the learned trial court has rightly concluded that it was appellant lallan Singh shot the deceased with his gun and injured him seriously-to which ultimately succumed and the charge under Sec.302 I P. C. and Sec.27 of the Arms Act has been established against him. On perusal of the evidence on records I find that the learned trial court has rightly concluded that it was appellant lallan Singh shot the deceased with his gun and injured him seriously-to which ultimately succumed and the charge under Sec.302 I P. C. and Sec.27 of the Arms Act has been established against him. As such no interference is called for against the judgment of conviction of lallan singh. 13. On the question as to whether the charge under Sec.302/34 i. P. C and Sec.27 of the Arms Act has been established against appellant. Chandrama Singh by the evidences on records or not, the evidence against chandrama Singh is that he was one of the members of the miscreants numbering 12 to 14. who entered into the house of (the deceased)on the date of occurrence around 7,45 P,m and he had gun in his hand and soon after his arrival at the place of occurrence, he pointed his sun towards the roof of Annant Rai. the neighbour of Harihar Singh. According to the prosecution Annant Rai bad licenced gun which was known to the miscreants and with a view to resisting Annant Rai and making him inactive, the gun was aimed by Chandrama Singh towards his roof. Further evidence against chandrama Singh is that seeing him aiming the gun towards the roof of annant Rai, the deceased suffled with him and in course of scuffling. Chandrama Singh pushed aside the deceased thereafter at two command of accused Nagina Singh to kill the accused Lallan Singh fired a shot with his gun at and injured him to which he ultimately succumbed. It becomes apparent from the evidence and materials on records that a group of miscreants numbering about 12 to 13 entered the bouse of with common intention to commit dacoity and accused Chandrama singh was one of them and the intention to kill. developed subsequently at the place of occurrence when, the accused Nagina Singh asked lallan Singh to kill Had all the accused entered the house of harihar With common intention to kill him finding Harihar lying on the cot, they would have fired at him then and there without wasting time by aiming he gun towards the house of Annnpt Rai and awaiting an order from the accused Nagina Singh to kill Harihar Singh. Evidence against Chandrama singh is that reaching the place of occurrence, he aimed his gun towards the roof of neighbour Annant Rai and when the deceased started suffling with him he pushed the deceased aside. From this evidence, it cannot be concluded that appellant Chandram Singh shared the intention of accused Nagina singh and Lallan Singh to kill which developed after Harihar singh was pushed back by him. As such conviction of Chandrama Singh under Sec.302/34 I P C. is not justified and cannot be sustained However, from the evidence on records I find that charge under Sec.27 of the Arms act has been established against appellant Chandrama Singh. beyond reasonable doubt. 14. The evidence against the appellant Kameshwar Singh is that he was seen with the miscreants with a country made pistol in his hand There is no evidence against him of taking any active part in killing the deceased. The evidence against Kameshwar Singh a scanty and it cannot be ruled out that Kameshwar Singh is implicated with other accused persons to rope all the members of the family. As such, it is not safe to convict Kameshwar singh under Sec.302/34 I P. C. or under Sec.27 of the Arms Act The judgment of conviction and sentence passed against accused Kameshwar Singh, therefore, cannot be sustained. 15. For the reasons stated aboye the appeal of Kameshwar Singh is allowed and the impugned judement of conviction and sentence passed against him are set aside. Appellant Kamsshwar Singh is acquitted of the charges and is also discharged frorn the bail bond. The appeal of accused chandrama Singh is partly allowed and impugned judgment of conviction and sentence under Sec.502/34 I P. C. passed against him is set aside. However, judgment of conviction under Sec.27 of the Arms Act is affirmed and he is sentenced to Undergo to imporisonment for the period already undergone. He is discharged from the bail bond. The appeal of lallan singh is dismissed and judgment of conviction under Sec.302 I. P C. and under Sec.27 of the Arms Act passed against him is confirmed and he sentenced suffer R. I. for life under Sec.302 I. P. G. and for the further period of three years under Sec.27 of the Arms Act. Both sentence shall run concurrently. Order accordingly.