Judgment P.K.Sarkar, J. 1. This Criminal Appeal arises out of the judgment and order dated 6.9.1991 passed by Shri Laxman Oraon, 1st Additional Sessions Judge, Nawadah in Sessions Trial No. 27 of 1990/81 of 1988, whereby he found the appellant Bldeo Chauhan guilty under Sec. 302 of the Indian Penal Code (hereinafter to be called as "the Code"). He also held the appellant Lakhan Sao guilty under Sec. 302/34 of the Code. He, therefore, sentenced each of the appellants to undergo R.I. for life under the aforesaid section. He further found both the appellants guilty under Sec. 27 of the Arms Act and sentenced them to undergo R.I. for three years. He further ordered that both the sentences will run concurrently. 2. The facts giving rise to the present appeal, in short, is that in the night of 22nd March, 1987, the informant Kishori Sao alongwith his brother Parmeshwar Sao (deceased) were thrashing wheat in their Khalihan in village Gangti, P.S. Pakribarawan in the District of Nawadah. The informant Kishori Sao was operating the thrashing machine and his brother Parmeshwar Sac (deceased) was bringing the wheat bundles from the Khalihan to their thrashing machine. At about 11.30 to 12 night in course of bringing the wheat bundles when Parmeshwar Sao went towards north east corner of the Khalihan taking a lantern with him, both the appellants who were concealing themselves behinds the wheat bundles, came out. Appellant Lakhan Sao caught Parmeshwar Sao from behind on his waist and under his orders Baldeo Chauhan fired with his pistol at the shoulder of Parmeshwar Sao and Parmeshwar Sao got injuries and fell down. Kishori Sao (informant) then raised alarm and his mother Saho Devi, Bhabhi Kumari Sharda Devi and uncle Bishun Sao came there, who saw both the appellants running away with pistols towards the east. The motive assigned for the occurrence was that there was some land dispute between the informant, the deceased and Appellant Lakhan Sao and a case is still pending in that regard, in which the evidence of deceased Parmeshwar Sao was to be recorded. It is also stated that the appellant Baldeo Chauhan had taken a loan of Rs. 350.00 from Parmeshwar Sao. About fifteen days before the occurrence he again demanded a loan which was refused by Parmeshwar Sao on the ground that the earlier loan had not been repaid as yet. It is also stated that the appellant Baldeo Chauhan had taken a loan of Rs. 350.00 from Parmeshwar Sao. About fifteen days before the occurrence he again demanded a loan which was refused by Parmeshwar Sao on the ground that the earlier loan had not been repaid as yet. At this accused appellant Baldeo Chauhan and his family members had threatened Parmshwar Sao to do away with his life. Accused appellant Lakhan Sao had also threatened with pistol the uncle and relatives of the informant due to land dispute. It is also stated that accused-appellant Lakhan Sao had killed his two wives by burning them and he had no hesitation in committing murder. Thereafter the F.I.R. of the informant Kishori Sao was recorded on 23.3.1987 at Pakribarawan Police Station in the District of Nawadah, where he went there after the said occurrence alongwith the dead body of his brother accompanied by his uncle Bishun Sao and others. 3. The police took up investigation of the case, prepared an inquest report in presence of the witnesses in carbon copies and sent the dead body for postmortem examination and visited the place of occurrence. After completing investigation he submitted charge-sheet under Sec. 302 of the Code and 27 of the Arms Act against both the accused appellants. The leaned Chief Judicial Magistrate took cognizance of the offence and after committment the learned Additional Sessions Judge framed charge under Sec. 302 of the Code against accused Baldeo Chauhan and charges under Sec. 302/34 of the Code and under Sec. 27 of the Arms Act were framed against accused Baldeo Chauhan and Lakhan Sao. 4. The learned Additional Sessions judge after completing trial, found the accused-appellants guilty and sentenced them in the manner already mentioned above. 5. Being aggrieved and dissatisfied with the aforesaid order this present appeal has been filed. From the records it appears that the accused appellants have pleaded not guilty and submitted that they have been falsely implicated in this case. 6. The prosecution in all has examined nine witnesses in this case, out of whom P.W. 6 is Kishori Sah informant in this case. He has clearly stated that on the night of the occurrence he alongwith his brother Parmeshwar Sao (deceased) were thrashing wheat in the threshing machine in their Khalihan in the light of a lantern. 6. The prosecution in all has examined nine witnesses in this case, out of whom P.W. 6 is Kishori Sah informant in this case. He has clearly stated that on the night of the occurrence he alongwith his brother Parmeshwar Sao (deceased) were thrashing wheat in the threshing machine in their Khalihan in the light of a lantern. He has further stated that he was running thrashing machine and was putting the bundles of wheat into it and his brother was brining the wheat bundles from the Khalihan. In course of that when his brother Parmeshwar Sao went to bring the bundle of wheat, accused appellant Lakhan Sao caught hold of him and on his order accused-appellant Baldeo Chauhan fired at Parmeshwar Sao with his pistol which hit him on the right side of shoulder in front and he fell down. Lakhan Sao was having a pistol in his hand. Thereafter both the accused appellants ran away towards east. He has further stated that he raised Hade on which his uncle Bishun Sao, his mother and Bhabhi and father came there. The villagers also arrived there. Subsequently he took the dead body of his brother to the police station where his statement was recorded, which was read over and explained to him and having found to be correct, he put his signature on the same which has been marked as Ext. 1/1. He has further state that the S.I. made inquest on the dead body and prepared an inquest report, in which he and Sikandar Sao gave their signature (marked Ext. 2 and 3/1). This witness has also stated that a case under Sec. 145, Cr.P.C. was pending between the accused and the deceased. He has also stated that the accused Baldeo Chauhan had taken a sum of Rs. 350.00 from his brother which was not returned. Hence he did not give him further loan. 7. P.W. 2 Sharda Devi is the wife of the deceased and Bhabhi of the informant. P.W. 4 Saho Devi is mother of the informant and P.W. 3 Bishun Sao is uncle of the informant. Out of these three witnesses PW.4 has been tendered, but other two witnesses have fully corroborated the statements of P.W. 6. 7. P.W. 2 Sharda Devi is the wife of the deceased and Bhabhi of the informant. P.W. 4 Saho Devi is mother of the informant and P.W. 3 Bishun Sao is uncle of the informant. Out of these three witnesses PW.4 has been tendered, but other two witnesses have fully corroborated the statements of P.W. 6. However, P.W. 2 has not claimed to have identified the accused appellants while running away, but she saw her husband in the pool of blood and heard from her Dewar that accused Lakhan Sao caught hold of her husband and Baldeo Chauhan fired at him. However, the uncle (P.W. 3) has stated that on Haifa of the informant he came to the place of occurrence and saw Baldeo Chauhan and Lakhan Sao running away from the place of occurrence. 8. P.W. 5 Dr. Brahmdeo Prasad Singh. He has stated that on 23.3.1987 he was posted at Sadar Hospital, Nawadah as C.A.S. and on the date at 10.10 A.M. he held postmortem on the dead body of Parmeshwar Scio of village Gangti, P.S. Parkibarawan, District Nawadah and found the following injuries: (1) Lacerated wound nearly circular with inverted margin and scorching of skin around (size 1/2" in diametre x inner deep) over upper part of right side of chest in the first inter postal space (the wound of entry). (2) Lacerated wound with everted margin nearly circular about 3/4" in diameter X inner deep over right side back of chest in the fourth inter postal space with rapture of light scapular bond (would of exit). On probing both the wounds communicate with each other. Both the injuries were ante mortem in nature and were impact of one fire and both the injuries were caused by fire arm, may be by pistol and were sufficient to cause death in ordinary course of nature to cause death. He has poved Ext. 2, i.e. postmortem examination report. 9 P.W. 1 Uttam Kumar, P.W. 7 Nand Lal Sao and P.W. 2 Jamuna Prasad Sharma are formal witnesses, inasmuch as, they have proved certain papers only. P.W. 1 has proved the F.I.R. (Ext.1) P.W. 7 has proved Ext. 4 which is licence of the shop of Kishori Sao, informant (P.W. 6) and P.W. 9 has proved the carbon copy of the seizure list. 10. P.W. 8, Jai Ram Sharma is the investigating Officer of this case. P.W. 1 has proved the F.I.R. (Ext.1) P.W. 7 has proved Ext. 4 which is licence of the shop of Kishori Sao, informant (P.W. 6) and P.W. 9 has proved the carbon copy of the seizure list. 10. P.W. 8, Jai Ram Sharma is the investigating Officer of this case. This witness has stated that he recorded the statement of the informant Kishori Sao in the Police Station and proved the F.I.R. (Ext. 1) He has also stated that in course of investigation he saw the Khalihan where the bundles of wheat were kept. He also saw some straw on the ground. He also found some blood spots on the bundles. In his crosss-examination, however, he has stated that he did not find any blank cartridge at the plea of occurrence. 11. From the evidence of the aforesaid witnesses it is, therefore, clear that they have fully corroborated the fact that in the night of the occurrence Parmeshwar Sao alongwith the informant Kishori Sao were thrashing wheat in the Khalihan in their own thrashing machine, when the accused-appellants who were concealing themselves in the Khalihan, came out and the accused Lakhan Sao caught hold of Parmeshwar Sao and on his order accused Baldeo Chauhan fired at him, as a result Parmeshwar Sao fell down, and subsequently dies. 12. The learned Counsel for the appellants has submitted that the occurrence is alleged to have happened in the night and it is stated that a lantern was burning, but that may not be sufficient for identification of the accused appellant. The admitted case of the prosecution is that the deceased was bringing wheat bundles from a distance of about 20-25 it., and it is submitted that it is not possible for the informant, who is only eye witness, to identity these appellants and so the entire identification appears to boubtful. Similarly though in the F.I.R. it is stated that the uncle, Bhabhi and mother of the informant also saw the accused appellants running away, but from the statement of P.W.2, i.e. wife of the deceased it appears that she did not see the accused appellants running away and she reached the place of occurrence when the assailants had already escaped. Similarly. P.W. 4 mother of the informant has been tendered and thus there is no statement of this witness regarding identification of the appellants. 13. Similarly. P.W. 4 mother of the informant has been tendered and thus there is no statement of this witness regarding identification of the appellants. 13. So far as P.W. 3, i.e. uncle of the informant is concerned, his statement is true that he had seen the accused-appellants running away, but his statement that he was in his own Khalihan nearby has not been substantiated. The learned Counsel for the appellants, therefore, submitted that the identification in this case appears to be doubtful and on that ground it cannot be observed that the murder was committed by these appellants in the manner as alleged. The learned Counsel for the appellants also submitted that the manner in which the prosecution story has been alleged, it falsifies the case in view of the fact that if accused Lakhan Sao caught hold of the waist of the deceased from his back and accused Baldeo Chauhan fired at him from front, it is quite possible that there was every possibility that accused Lakhan Sao was also hit by the fire. 14. The learned Counsel for the State, however, submitted that admittedly the accused-appellants are known persons and as the motive assigned has been that there were litigations between the appellants and the informant and the deceased and also that the deceased refused loan to one of the appellants, it is not at all difficult to identify them even in the insufficient light. Moreover from the cross-examination of the informant it will appear that the lantern was burning at a distance of 2-3 it, from the place where his brother was standing. He has also stated that his attention was attracted toward that side from a distance of 5-6 it, by hearing dragging sound. He has also given clear description of the manner in which the occurrence happened and also the fact that he ran towards that place, but by then his brother was already shot. When Baldeo Chauhan fired he was at a distance of 1 fit, from the deceased and the person who was catching hold, already left him. In this connection the learned Counsel for the State relied on the decision of the Supreme Court in the case of Krishna and Anr. When Baldeo Chauhan fired he was at a distance of 1 fit, from the deceased and the person who was catching hold, already left him. In this connection the learned Counsel for the State relied on the decision of the Supreme Court in the case of Krishna and Anr. V/s. State of Kerala reported in 1996 SCC (Cri) page 1375, where the Supreme Court has held that occurrence taking place in an open filed on a cloudless starry night, there was no difficulty in identifying a known person from a close distance. That apart it should be kept in mind that there was no difficulty in identifying the victim by the assailant because of existence of some light with which identification was possible. The occurrence happened in the Khalihan and so the aforesaid decision, in my opinion, also corroborates the claim of identification of the appellants by the witnesses at the time of occurrence even in the insufficient light. The learned Counsel for the State therefore, submits that the facts will clearly show that there can be no apprehension in identification of the accused persons and also in the manner of occurrence, as is apparent from the aforesaid statement of the informant (PW.6) that the other accused-appellant left the decease when the fire was made. 15. The defence has also examined three witnesses in this case. D.W. 1 Bhikhari Chauhan, D.W. 2 Chando Paswan and D.W. 3 is Latan Chauhan. These witnesses have accepted the murder of Parmeshwar Sao in the night of the occurrence. However, these witnesses have stated that they ran towards the place of occurrence but did not see the accused persons nor the informant. Thus from the evidence of those witnesses the occurrence and the time of occurrence are almost established beyond all shadow of reasonable doubts. They have only denied the identification for the accused persons. The learned Counsel for the appellants, however, did not press the evidence of these defence witnesses at the time of hearing of this appeal. 16. The learned Counsel for the appellants also argued that the investigating Officer did not seize any lantern nor found any cartridge at the place of occurrence and no blood on the ground was also found nor any Ganji etc. also were seized and the blood found on the scattered wheat bundles was also not taken out by him. 16. The learned Counsel for the appellants also argued that the investigating Officer did not seize any lantern nor found any cartridge at the place of occurrence and no blood on the ground was also found nor any Ganji etc. also were seized and the blood found on the scattered wheat bundles was also not taken out by him. Mofeover, the witnesses examined are all relations and no other villagers. though appeared have been examined. 17. The learned Counsel for the State has further submitted that from the prosecution evidence coupled with the statements of the defence witnesses it is established that the occurrence happened. Admittedly, the accused appellants left the place of occurrence immediately after the occurrence and the identification mainly rests on the version of the informant (P.W. 6) In this view of the matter non-examination of the villagers is not very important. Similarly seizure of blood, cartridges etc. from the place of occurrence also lose its importance. 18. The learned Counsel for the appellants also submitted that the lantern was not seized by the investigating Officer. The witness has claimed to have identified the accused-appellants in lantern. In this connection the learned Counsel for the State has reled on the decision of the Supreme Court in Balo Yadav and Ors. V/s. State of Bihar Cr. appeal No. 324 of 1987 reported in (1997) BLJR 1007 (SC). Where the Supreme Court has held that in not seizing of the torchlight by the investigation officer whether the same was used by the accused or the victim is different than which is used by the witness to see the occurrence and both of them cannot be equated. Non-seizure of the torchlight used by the witness cannot be considered as a lapse on the part of the investigation office much less a ground for impairment of the testimony of the eye witness. In this view of the matter the learned Counsel for the State submitted that non-seizure of the lantern is not material. 19. Non-seizure of the torchlight used by the witness cannot be considered as a lapse on the part of the investigation office much less a ground for impairment of the testimony of the eye witness. In this view of the matter the learned Counsel for the State submitted that non-seizure of the lantern is not material. 19. From the facts stated above and the submissions made by both the parties to me it appears that in view of the fact that the appellants are well known to the informant and other witnesses and also the fact that the informant had an opportunity to see the appellants at the time for occurrence since he was also present near about, coupled with the decisions referred to above. I also feel that there is no doubt on the identification of the accused-appellants. On the basis of the decision referred to above (1997) 2 BLJR 1007 (SC), in my opinion, non-seizure of the lantern does not affect the prosecution case very much. The evidence of P.W. 2 and P.W. 3 also corroborates the evidence of the informant (P.W. 6) fully establishing the occurrence in the manner allege by the prosecution. The evidence of doctor (P.W. 5) and two lacerated wounds and other wounds of exit also corroborate the fact of assault by pistol (fire-arm), which in the opinion of the doctor were sufficient to cause death in ordinary course of nature. 20. In view of the facts stated above it appears that the prosecution has been able to establish the fact that the appellant Lakhan Sao caught hold of the deceased Parmeshwar Sao and on his order the appellant Baldeo Chauhan fired at him and also the fact that both of them were having pistol in their hands has been proved beyond all shadow of reasonable doubts. The findings of fact and the sentence as passed in the impugned judgment and order, therefore, appears to be quite consistent with the facts of the case an the evidence on record and the same does not require any interference in this appeal. 21. In the result this appeal is dismissed and the conviction and sentence passed against both the appellants vide impugned judgment dated 6.9.1991 are hereby confirmed. Appellant No. 1 Lakhan Sao is on bail. Hence his bail bond is cancelled. R.N.Prasad, J. 22 I agree.