Judgment P.K.Sarkar, J. 1. These two criminal appeals have been heard together and are being disposed of by this one common judgment, as they arise out of the same judgment and order of conviction and sentence dated the 26th August, 1986 passed by the IIIrd Additional Sessions Judge, Sasaram in Sessions Trial No. 180/42 of 1983/83, whereby all these three appellants, namely, Rama Kant Tiwary, Bahadur Singh (appellants in Cr. Appeal No. 442/86) and Parmanand Tiwary (appellant in Cr. Appeal No. 489/86) have been convicted Section 302/34 of the Indian Penal Code (for short "the Code") and sentenced to undergo R.I. for life by the Court below. 2. Being aggrieved and dissatisfied with the said judgment and order these two appeals have been filed by the appellants in the manner as aforesaid. 3. The prosecution case in short, as disclosed from the Fardbeyan of Mangal Tiwary, recorded by the S.I. Sri R.N. Tiwary of Chand P.S. District Rohtas is that on 24.2.1983 at 4.30 p.m. the Fardbeyan of the informant was recorded by S.I. R.N. Tiwary of Chand Police Station, wherein the informant contended that they are these brothers. The eldest is Shyama Kant Tiwary, who is mentally deraliled. The second is Krishna Kant Tiwary and he (Mangal Tiwary) is the youngest. The appellants Parma Nand Tiwary and Rama Mani Tiwary are also residents of their village Boldan within Chand Police Station in the district of Rohtas and they are their Gotias. The appellant Bahadur Singh is a resident of another village Chasrewa of the same Police Station and District. It is further stated that they were having some land dispute with the appellant Parmanand Tiwary. On the date of occurrence in the morning his brother Krishna Kant Tiwary had gone to Chand for some urgent piece of work. In the meantime the appellant Parmanand Tiwary sent some labourers for harvesting the massor crops in the field situated on the western side of their house. The informant Mangal Tiwary protested and the labourers were sent back. His brother Krishna Kant Tiwary returned from Chand at about 10 a.m. Thereafter Parmanand Tiwary came to their house and asked him as to why his brother did not allow his labourers to harvest the masoor crops. The informant Mangal Tiwary protested and the labourers were sent back. His brother Krishna Kant Tiwary returned from Chand at about 10 a.m. Thereafter Parmanand Tiwary came to their house and asked him as to why his brother did not allow his labourers to harvest the masoor crops. This caused some altercation in between Krishna Kant Tiwary and Parmanand Tiwary, and Parmanand Tiwary threatened him and challenged that he is going to the field for harvesting the masoor crops and asked him to do what he can. The appellant Parmanand Tiwary thereafter went to the house of the appellant Bahadur Singh and returned along with him. Appellant Bahadur Singh had also brought an illegal gun with him and went along with the appellant Parmanand Tiwary to the field for harvesting the masoor crops and asked Krishna Kant Tiwary to come to the field, at which his brother said that he will not go to the field, instead he will go to the police station along with the Chowkidar. Thereafter Krishna Kant Tiwary along with the informant Mangal Tiwary went to the house of Dukhanti Chowkidar for taking him to the police station. At about 11 a.m. when he along with his brother reached near the house of Dukhanti Chowkidar, there they found the appellant Bahadur Singh armed with a gun, appellant Ramakant Tiwary armed with a lathi and the appellant Parmanand Tiwary without any arms coming from the eastern side. After reaching near the door of Dukhanti Chowkidar, appellant Bahadur Singh asked to assault his brother Krishna Kant Tiwary, at which the appellant Parmanand Tiwary took the gun from the hand of the appellant Bahadur Singh and fired at Krishna Kant Tiwary, which hit on his thigh and his brother fell down. Appellant Parmanand Tiwary again loaded the gun and tried to shoot at him (informant) but he fled away from that place. The appellants thereafter also tried to fire at his brother again, but their sister Dhanraji Devi, who was also going along with them, fell down on the body of her brother Krishna Kant Tiwary and started crying. The appellant thereafter went away towards the western side of the village. The injured Krishna Kant Tiwary was taken to Khar-gawan Hospital where he subsequently died. 4. The appellant thereafter went away towards the western side of the village. The injured Krishna Kant Tiwary was taken to Khar-gawan Hospital where he subsequently died. 4. On the basis of the aforesaid Fardbeyan a formal F.I.R. was drawn up in this case in Chand Police Station and investigation was taken up by the police. On completion of the investigation the police submitted charge-sheet under Section 302 of the Code against all the three accused-appellants and on trial the learned Court below convicted and sentenced all the three appellants in the manner as indicated above. 5. The prosecution has examined 11 witnesses in all, out of whom P.W. 5 Mangal Tiwary is the brother of the deceased Krishna Kant Tiwary and informant of this case, who is an eye-witness of the occurrence. P.W. 6 Dhanraji Devi sister of the deceased and the informant, is also an eye-witness to the occurrence. It is stated that both these witnesses (PWs. 5 and 6) were accompanying the deceased when the occurrence took place. Both these witnesses have fully corroborated the prosecution case and the evidence of each other. They have clearly stated about the earlier occurrence when the appellants Parmanand Tiwary and Ramakant Tiwary came and threatened the deceased Krishna Kant Tiwary in their house and challenged him to come to the field expressing displeasure at the act of the informant in not allowing the appellant Parmanand Tiwary to harvest the masoor crops. The deceased had told the appellants that he would not go to the field, but would go to the Police Station along with the Chowkidar and when the deceased along with P.Ws. 5 and 6 were going to the house of Dukhanti Chowkidar, all the three appellants came in front of the house of the said Chowkidar. At that time appellant Bahadur Singh was armed with a gun, appellant Ramakant Tiwary was armed with a lathi and the appellant Parmanand Tiwary was empty-handed, but subsequently appellant Parmanand Tiwary took the gun from the appellant Bahadur Singh and fired at Krishna Kant Tiwary, which hit him on his thigh and he fell down injured. Thereafter he was taken to Khargawan Hospital, where he sub-sequently died. 6. Thereafter he was taken to Khargawan Hospital, where he sub-sequently died. 6. P.W. 5, Mangal Tiwary, who is the informant in this case, has also stated that his statements were recorded by the police, which were read over and ex-plained to him and finding the same to be correct he gave his signature on the same. He has proved Ext. 1, i.e. his signature on the Fardbeyan, He has also proved Ext. 2, i.e. signature of the witness Diwan Fakhruddin Khan before whom the said Fardbeyan (Ext. 1) was recorded. These witnesses have also stated that the deceased had told the informant earlier not to allow the appellant Parmanand Tiwary to harvest the masoor crops, as the said land was given to Parmanand Tiwary by the informant and his brother on Batai and a sum of Rs. 34/- was due. The deceased Krishna Kant Tiwary, therefore, had said that only after payment of the said amount the crops can be harvested and can be divided half and half. 7. P.W. 8 Manjira Devi is the wife of the deceased Krishna Kant Tiwary, who went to the place of occurrence on hearing alarm and saw the injuries on the body of her husband and her sister-in-law (Nanad) were crying there. She learnt from the informant Mangal Tiwary that the appellant Bahadur Singh gave his gun to the appellant Parmanand Tiwary and on the instigation of the appellant Ramakant Tiwary, the appellant Parmanand Tiwary fired at her husband and Mangal Tiwary and thereafter all the accused-appellants fled away towards west. The evidence of this witness (P.W. 2) shows that she did not see the actual occurrence. However, she has corroborated the injuries and also the fact that she learnt about the occurrence from others. 8. P.W. 9, Malti Devi, who is wife of the elder brother of the deceased, also came at the place of occurrence on hearing Halla. She also told that when she went to the place of occurrence, she found Krishna Kant Tiwary with gun shot injuries in a pool of blood. She learnt about the occurrence from the informant Mangal Tiwary and her sister-in-law (Nanad) and found that they were covering the dead body of Krishna Kant Tiwary. Thus the evidence of this witness also corroborates the prosecution case to the extent that she also found the deceased in an injured condition at the place of occurrence. She learnt about the occurrence from the informant Mangal Tiwary and her sister-in-law (Nanad) and found that they were covering the dead body of Krishna Kant Tiwary. Thus the evidence of this witness also corroborates the prosecution case to the extent that she also found the deceased in an injured condition at the place of occurrence. The evidence of the aforesaid four witnesses fully established the fact that the occurrence happened in front of the house of Dukhanti Chowkidar. 9. P.W. 1, Bachcha Tiwary has stated that at about 11 a.m. on the date of occurrence he heard a sound of gun and came out of his house and found the deceased Krishna Kant Tiwary in an injured condition. He has further stated that he did not see any body running away. He also found the informant and his sister at the place of occurrence and some other persons of the village were also present there. Thus the evidence of this witness also corroborates the fact that he saw the deceased Krishna Kant Tiwary in an injured condition at the place of occurrence. 10. P.W. 2, Tarkeshwar Pandey, P.W. 3 Bhikho Dusadh, and P.W. 4 Sheo Murat Prasad Gond were declared hostile by the prosecution, as they did not corroborate their earlier statements made before the police. Now these witnesses also have corroborated the fact that they found the deceased Krishna Kant Tiwary in an injured condition on the date of occurrence at the place of occurrence. 11. P.W. 10, Diwan Shahabuddin Khan, who is said to be the witness of the Fardbeyan (Ext. 1), has stated that Krishna Kant Tiwary of his village was murdered and the police came to the place of occurrence where he was present. The police seized blood-stained earth in his presence and prepared a seizure-list, in which he and Chandra Bhushan Singh Yadav gave their signatures. He also proved his signature and that of Chandra Bhushan Singh Yadav, marked as Exts. 4 and 4/1 respectively. 12. P.W. 11, Sheo Kumar Pandey has proved the formal F.I.R. (Ext. 5) and the case-diary (Ext. 6). Thus P.Ws. 10 and 11 are formal witnesses and have proved certain papers only. The Investigating Officer has not been examined in this case. 13. From the discussion of the evidence of the witnesses it will, therefore appear that the informant Mangal Tiwary (P.W. 5) has fully corroborated his Fardbeyan (Ext. 5) and the case-diary (Ext. 6). Thus P.Ws. 10 and 11 are formal witnesses and have proved certain papers only. The Investigating Officer has not been examined in this case. 13. From the discussion of the evidence of the witnesses it will, therefore appear that the informant Mangal Tiwary (P.W. 5) has fully corroborated his Fardbeyan (Ext. 1) so far as the occurrence is concerned. However, he has stated some more facts regarding the reason for not allowing the appellant Parmanand Tiwary to harvest the masoor crops due to non-payment of Rs. 34/-which was due, and he was asked by his brother (deceased) not to allow them to harvest the masoor crops till the said amount was paid. P.W. 6, Dhanraji Devi sister of the informant and the deceased, who was admittedly going with them, had also corroborated the entire occurrence including the statements of the informant regarding payment of Rs. 184/-. 14. P.Ws. 8 and 9 have stated that they reached the place of occurrence after the occurrence and they saw the deceased in injured condition. P.Ws. 1, 2, 3 and 4 all of them have found the deceased injured on the date of occurrence. P.Ws. 1, 2 and 3 were declared hostile as they did not support their earlier statements made before the police. The I.O. has not been examined in this case, hence the attention of the I.O. could not be drawn towards the statements of the witnesses as recorded by him. So there is little value of the evidence of these witnesses for the prosecution. However, the aforesaid evidence of the witnesses clearly shows that the deceased Krishna Kant Tiwary received gun shot injury on the date of occurrence and subsequently he died in the hospital. The death of the deceased Krishna Kant Tiwary has not been disputed. Hence the fact of culpable homicide is established in this case. 15. P.W. 7, Dr. Satyendra Kumar, who conducted the post-mortem examination on the dead body of the deceased Krishna Kant Tiwary, has stated that on 25.2.1983 while he was posted as Civil Assistant Surgeon in Bhabua Hospital he held post-mortem examination at 11.30 a.m. on the dead body of Krishna Kant Tiwary and found the following injuries : "(1) One lacerated wound 1/2" x 1/4" x tissues deep on the right side of the waist near Ischial tuberrosity. (2) One lacerated wound 1/4" x 1-1/4" x tissue deep about 1/2" awav from injury No 1. (3) One lacerated wound 1/2" x 1/2" x tissue deep 1" awav from injury No. 2. (4) One lacerated wound 1/2" x 4" x muscle deep on the front of thigh right side...." The Doctor (P.W. 7) has further stated that on internal examination he discovered two metallic pellets from the dead body which were sealed after putting in a glass vessel and were handed over to the police. The doctor on internal examination also found on opening the chest and abdomen blood clots were present in the cavity of abdomen and there was rupture large intestine area 1/2" x 1/4". Both the chambers of heart were empty, lever spleen were pale and congested and bladder was empty. P.W. 7 has further stated that all the aforesaid injuries were ante-mortem in nature and have been caused by fire-arm. In his opinion the death was caused due to shock and haemorrhage and due to rapture on large intestine with blood vessels and the time elapsed was within 24 hours from the time of the occurrence. He was proved Ext. 3, i.e. post-mortem report submitted bv him. In his cross- examination he has stated that 8 to 12 hours will take to completely digest the food. Thus the medical evidence also corroborates the evidence of the witnesses regarding death of the deceased by gun shot injuries. 16. The point, therefore, arises for consideration is whether these injuries were caused by the appellants in the manner as alleged by the prosecution. 17. The learned Counsel for the appellants has submitted that P.W. 1 has stated in his cross-examination that the brother, sister and mother of the deceased Krishna Kant Tiwary were coming to the place of occurrence after he reached there. The learned Counsel for the appellants on the basis of the aforesaid statements submits that none of the informant or his sister can be termed as an eye-witness to the occurrence, as they reached the place of occurrence after P.W. 1, who when reached the place of occurrence, saw the deceased in injured condition. Thus there is no eye-witness to the alleged occurrence in this case and the evidence of P.W. 5 and P.W. 6 cannot be given full credence. Thus there is no eye-witness to the alleged occurrence in this case and the evidence of P.W. 5 and P.W. 6 cannot be given full credence. On a perusal of the evidence of P.W. 1, it will appear that in his examination in-chief he has clearly stated that when he reached the place of occurrence he found Krishna Kant Tiwary injured and his brother Shyama Kant Tiwary, his sister, mother and many other persons present at the place of occurrence. Thus there is apparent contradiction in his cross-examination and in his examination in-chief. The manner in which he has deposed, also therefore, raises a doubt and only on the aforesaid fact the consistent statement in the evidence of P.W. 5 and P.W. 6 cannot be disbelieved. 18. The learned Counsel for the appellants also submitted that both the witnesses, namely, P.W. 5 and P.W. 6 are close relations of the deceased and no independent witness has come forward to support the occurrence. It is an admitted principle of law that only because the witnesses are relations. Their evidence cannot be fully discarded. The principle is that the evidence of such witnesses. should be viewed with care and caution. In the circumstances of the case I do not think it proper to completely discard the evidence of the aforesaid witnesses. 19. The learned Counsel for the appellants has also submitted that the I.O. has not been examined in this case and the non-examination of the I.O. is fatal to the prosecution case as it has prejudiced the defence of the appellants. 20. The learned Counsel for the State has submitted that the evidence of P.Ws. 5, 6, 8 and 9 have fully corroborated the fact that the occurrence happened near the house of Dukhanti Chowkidar. P.W. 1 though not supported the entire occurrence, has fully corroborated about the place of occurrence, where he saw the deceased in injured condition. Thus there is no dispute on the place of occurrence. Moreover, no specific instance has been given which caused prejudice to the defence for non-examination of the Investigating Officer. P.W. 1 though not supported the entire occurrence, has fully corroborated about the place of occurrence, where he saw the deceased in injured condition. Thus there is no dispute on the place of occurrence. Moreover, no specific instance has been given which caused prejudice to the defence for non-examination of the Investigating Officer. In this connection the learned Counsel for the State has referred to a decision reported in 1996 SCC (Cr.) page 271 :1996 (1) East Cr C 401 in the case of Bihari Prasad and others V/s. State of Bihar, wherein it has been held that in a case where the involvement of the accused in committing the murder has been clearly established by the evidences of the eyewitnesses, for non-examination of the Investigating Officer, the prosecution case should not fail. Hence the learned Counsel for the State has submitted that since the eye-witnesses and the other evidence fully corroborates the charge of murder, due to the non- examination of the I.O. the prosecution case cannot fail. Moreover, no prejudice has also been caused to the defence by non-examination of the I.O. 21. The defence has also examined one witness in this case, namely, Sheo Nath Singh, who has only proved" Ext. A, the formal F.I.R. of Chainpur P.S. Case No. 7/80 and Ext. B, the Fardbeyan of that case. The learned Counsel for the appellant submits that admittedly there is a criminal case against the appellants and the deceased which will show that there is enmity in between the parties due to land dispute. The evidence of this witness was not pressed by the defence. 22. The facts mentioned above, show that there are sufficient evidence on record to lead us to the conclusion that on the date of occurrence Krishna Kant Tiwary (deceased) brother of the informant stopped by the appellants while he along with his brother (informant) and sister were going to the house of Dukhanti Chowkidar for taking him with them to the Police Station. At that time the appellant Bahadur Singh was having an unlicensed gun, appellant Ramakant Tiwary was having a lathi and Parmanand Tiwary was empty handed. It appears that the appellant Bahadur Singh instigated and the appellant Parmanand Tiwary took the gun from appellant Bahadur Singh, and he fired at the deceased Krishna Kant Tiwary, as a result he received injuries and subsequently died. 23. It appears that the appellant Bahadur Singh instigated and the appellant Parmanand Tiwary took the gun from appellant Bahadur Singh, and he fired at the deceased Krishna Kant Tiwary, as a result he received injuries and subsequently died. 23. The learned Counsel for the appellants has submitted that from the allegation of the prosecution and also from the evidence on record it will appear that there was no common intention on the part of the appellants Ramakant Tiwary and Bahadur Singh (appellants of Cr. Appeal No. 442/86) and thus the conviction of these two appellants along with the appellant Parmanand Tiwary (appellant of Cr. Appeal No. 489/86) under Section 302/34 of the Code is not correct. In this connection a decision reported in the case of 1989 Cr LJ 875, Rangaswami V/s. State of Tamil Nadu has been referred, wherein while interpreting Section 34 of the Code their Lordships of the Supreme Court have held that the appellant only accompanied the accused person and as there was no evidence of the purpose and the appellant having no enmity with the victim and no instigatory words uttered by the appellant only surrender by the appellant along with the accused persons before the police, does not show the meeting of minds, so the appellant cannot be held constructively liable for the act of other accused persons and cannot be convicted for murder by aid of Section 34 of the Code. Accordingly it was observed that in such circumstance appellant No. 3 is entitled for the benefit of doubt. The learned Counsel, therefore, submits that both the appellants Ramakant Tiwary and Bahadur Singh are entitled to the benefit of doubt. 24. On a careful consideration of the entire matter, we feel that there is no specific allegation of any overt act and of any instigation given by appellant Ramakant Tiwary. P.W. 6 alleged that he has also instigated Parmanand Tiwary to fire. P.W. 5 the informant is, however, silent on this point. In that view of the matter we feel that the appellant Ramakant Tiwary is entitled for the benefit of doubt. However, the allegations against other two appellants, namely, Parmanand Tiwary and Bahadur Singh have been fully established beyond all shadow of reasonable doubts. P.W. 5 the informant is, however, silent on this point. In that view of the matter we feel that the appellant Ramakant Tiwary is entitled for the benefit of doubt. However, the allegations against other two appellants, namely, Parmanand Tiwary and Bahadur Singh have been fully established beyond all shadow of reasonable doubts. As Bahadur Singh was armed with a gun and he gave it to Parmanand Tiwary, he cannot get the same benefit of doubt, given to Ramakant Tiwary, and thus we do not find any reason to interfere with the impugned judgment and order of conviction so far as these two appellants are concerned. 25. In the result, the appellant Ramakant Tiwary is acquitted from the charges under Section 302/34 of the Code and the order of conviction and sentence passed against him in the impugned judgment is set aside. The Cr. Appeal No. 442 of 1986 as against him is allowed to that extent only. He is on bail. Hence he is discharged from the liability of his bail bond. So far as the conviction and sentence passed against Bahadur Singh of Cr. Appeal No. 442/86 and the appellant Parmanand Tiwary of Cr. Appeal No. 489/86 are concerned, the same are confirmed. Cr. Appeal No. 442/86 so far as Bahadur Singh is concerned, is dismissed. Criminal Appeal No. 489/86 filed by Parmanand Tiwary is also dismissed. These appellants are on bail. Hence their bail bonds are cancelled. These two appellants namely, Parmanand Tiwary and Bahadur Singh are, therefore, directed to surrender before the Court below forthwith to serve out the remaining period of their sentence, failing which the Court concerned will take necessary steps for their arrest/apprehension. Cr. Appeal 442/86 partly allowed and Cr. App. 489/86 dismissed.