Judgment A.K.Prasad, J. 1. This appeal at the behest of sole appellant (Jugnu alias Ruplal Mahto) is directed against the judgment and order dated 16.12.1995 in S.T. No. 224 of 1990 passed by Sri Subhas Chandra Jha, the then Additional Sessions Judge, Bermo at Tenughat whereby and whereunder he has been convicted under Sec. 302 read with Sec. 34, under Sec. 307 read with Sec. 34, and under Secs. 394 and 411 of the Indian Penal Code, and sentenced to under go life imprisonment under Sec. 302 read with Sec. 34 of the Indian Penal Code and five years rigorous imprisonment each on the counts under Secs. 307 read with Sec. 34 and under Secs. 394 of the Indian Penal Code. Further, he has been sentenced to rigorous imprisonment for two years under Sec. 411 of the Indian Penal Code. However, the sentences were directed to run concurrently. It appears that charge under Sec. 120-B of the Indian Penal Code was not established against the appellant. 2. It may be stated that co-accused Gangaram Nayak was acquitted of the charges framed against him. Co-accused Lal Md. Ansari and Arjun Nayak died during the pendency of the trial, whereas co-accused Chintamani Kewat absconded and his trial was separated. 3. The prosecution case, in brief, as made out in the fardbeyan (Exhibit 4) and elucidated in evidence by the informant is as under: Deceased Rathu Mahto was the owner of line hotel at village Bahadurpur within Police Station Jaridih, district Giridih. Akla Kamar the other deceased, was the servant in the line hotel. On 7.8.1990. around 9 p.m., Atul Chandra Jha, the informant (PW 7) and deceased Rathu Mahto were playing Chess on a Chowki in the outer lawn of the line hotel. In the meantime, PW 3 (Barun Prasad Kushwaha) arrived and sat on a chair near them to watch the Chess game. Some persons were sitting on a cot and taking meal at some distance in open space at the line hotel. After some time, while the informant and the deceased Rathu Mahto were playing the Chess game, one of the unknown customers who was taking meal with his associates uttered that he had demanded water thrice, but had not been served and who was the foolish owner of the hotel, Rathu Mahto protested to it. Thereafter the informant and the deceased Rathu Mahto resumed the Chess game. Thereafter the informant and the deceased Rathu Mahto resumed the Chess game. A tall person, who was one amongst the unknown culprits, wearing black cap went near the place where Chess was being played accusing deceased Rathu Mahto that he had addressed him in impolite word "REY" and that he thought himself to be a big boss, threw a bomb on chest of Rathu Mahto which caused great explosion and Rathu Mahto sustained bomb injuries and fell from the Chowki. Immediately thereafter another bomb was hurled by one of the miscreants. The informant and Barun Kushwaha (PW 3) sustained bomb splinter injuries on their hand and neck respectively. Due to sustaining the wound and sound of powerful bomb explosion, the informant lost his senses and fell down when he regained his senses, he found that Akla Kamar was also seriously wounded. The informant out of fear, left the place. After some time, villagers of Rathu Mahto came to the hotel of deceased Rathu Mahto and took injured Rathu Mahto and Akla Kamar to Bokaro hospital on a trekker. The informant and PW 3 (Barun Prasad Kuswaha) were brought by the villagers to Referal hospital at Jaina More for treatment of the wounds. At the time of occurrence a generator was running in the line hotel and there was light. Later on the informant learnt that Rathu Mahto and Akla Kamar had died. The fardbeyan of PW 7 (Atul Chandra Jha) was recorded by B.C. Tripathy, the then Sub-Inspector of Police, Giridih Police Station, in the Referal hospital at about 11.45 p.m. On this basis the instant case came to be instituted under Sec. 302 read with Sec. 34 of the Indian Penal Code against unknown miscreants, a formal First Information Report (Exhibit 5) was drawn up and the case was investigated by the then officer-in-charge, Giridih Police Station (who has not been examined). Further prosecution case is that during investigation it transpired that unknown miscreants had committed robbery and looted away some properties, namely, a cash box, a yellow V.I.P. and an attache containing some clothes, documents and other articles belonging to deceased Rathu Mahto from the line hotel. Further prosecution case is that during investigation it transpired that unknown miscreants had committed robbery and looted away some properties, namely, a cash box, a yellow V.I.P. and an attache containing some clothes, documents and other articles belonging to deceased Rathu Mahto from the line hotel. It is alleged that during investigation some stolen clothes, a dhoti two kurtas, a paijama and a monkey cap belonging to deceased Rathu Mahto, which had been kept concealed by the appellant, were recovered from the house of Kunju Mahto (PW 17). 4 The main defence is of innocence and false implication. 5. At the trial, the prosecution examined 21 witnesses in support of its case. Out of them PW 1 (Simen Raj), PW 9 (Khusi Ram Mahto) and PW 21 (Gouri Yadav) are formal witnesses, whereas PW 12 (Sampurna Addi) is the tendered witness PW 2 (Tijan Singh), PW 3 (Barun Pd. Kushwaha), PW 8 (Dhiren Singh, PW 14 (Md. Halim) and PW 17 (Kunju Mahto) are hostile witnesses. The other PWs are: PW 4 (Vijay Mahto) and PW 5 (Rajan Mahto), cousins of the deceased Rathu Mahto. PW 6 (Madan Mahto), PW 7 (Atul Chandra Jha) the informant, PW 10 (Suresh Mahto), another cousin of deceased Rathu Mahto, PW 11 (Mithilesh Singh), a witness on seizure list (Exhibit 6), PW 13 (Jitendra Kumar Mahto), the younger brother of deceased Rathu Mahto, PW 15 (Alimuddin Khan), a witness on the seizure of some documents of Truck No. BPO 7635 from Tand near village Bhulan Khetko on 8.8.1990 (his evidence is not of significance); PW 16 Phuleshwar Singh (his evidence is not relevant so far appellant is concerned), PW 18 Dr. Devendra Prasad, who had examined the injuries on PWs 3 and 7, PW 19 (Mahavir Kumar) is the Judicial Magistrate who held Test Identification Parade of suspect/appellant on 17.9.1990 in the sub-jail at Tenughat (Exhibit 8 is the carbon copy of the T.I. Chart in his pen). PW 20 Chandra Bhusan Singh is another Judicial Magistrate who held Test Identification Parade of the other suspects/accused in the case in sub-jail at Tenughat on 28.8.1990 (Exhibit 9 is the carbon copy of the Test Identification Chart). Further, he recorded the statement of PW 17 under Section 164 Cr. PC. (Exhibit 10). The defence, on the other hand, adduced no evidence. 6. Further, he recorded the statement of PW 17 under Section 164 Cr. PC. (Exhibit 10). The defence, on the other hand, adduced no evidence. 6. The learned Additional Sessions Judge on consideration of materials on record and mainly relying on the identification of the appellant by PW 5 (Ramjan Mahto) and PW 13 (Jitendra Kumar Mahto) in Court as well as in the T.I. Parade, which was corroborated by PW 19 and taking into consideration the fact that some clothes of deceased Rathu Mahto kept concealed by the appellant had been recovered from the house of PW 17 held the appellant guilty of the charge under Sec. 302 read with Sec. 34 of the Indian Penal Code, and Sec. 307 read with Sec. 34 and Secs. 394 and 411 of the Indian Penal Code and convicted and sentenced him thereunder as stated above. Learned Counsel for the appellant has assailed the impugned judgment mainly on the ground that PW 3 (Barun Pd. Kushwaha) and PW 7 (Atul Chandra Jha) the injured witnesses did not identify the appellant in Court and the evidence of PW 5 (Rajan Mahto) and PW 13 (Jitendra Kumar Mahto), who are related to appellant cannot be relied upon and further they have attributed no overt act to the appellant in their evidence. It was next submitted that appellant had surrendered in the instant case on 29.8.1990 in the Court and he was put on T.I. Parade on 17.9.1990 and there is every possibility that the appellant might have been shown to the witnesses before holding the T.I. Parade. He further contended that there is no cogent evidence that the appellant had concealed the stolen clothes of deceased Rathu Mahto alleged to have been recovered from the house of PW 17. He further pointed out that the Investigation Officer has not been examined in the present case. Learned A.P.P., on the other hand, has supported the impugned judgment. 7. Broadly speaking there are two categories of witnesses regarding the occurrence. Firstly, those who were present at the line hotel of Rathu Mahto at the time of occurrence, namely, PWs 3, 7, 8 and 13. The other set of witnesses are those who rushed to the spot on the sound of bomb explosions and they are PWs 2, 4, 5, 6 and 10. 8. PW 7 has testified to the. Firstly, those who were present at the line hotel of Rathu Mahto at the time of occurrence, namely, PWs 3, 7, 8 and 13. The other set of witnesses are those who rushed to the spot on the sound of bomb explosions and they are PWs 2, 4, 5, 6 and 10. 8. PW 7 has testified to the. effect that on fateful night, around 9.30 p.m. he was playing Chess with Rathu Mahto at his line hotel and some unknown persons were taking meal on a cot at short distance in the hotel and one of them made objectionable comment over service of water to which Rathu Mahto protested and soon thereafter one of the three unknown miscreants hit Rathu Mahto with bomb on his chest and on its found explosion he himself became unconscious and when he regained senses, he found Rathu Mahto lying dead and later he learnt that Akla Kamar had also died. PW 7 has further stated that he also sustained bomb injury on his hand. PW 3 has stated that while he was watching Chess game there were explosions at the line hotel. PW 8 the line hotel cook has stated that there was altercation over service of water and one of the unknown miscreants had hurled a bomb at Rathu Mahto whereafter he himself fled away. PW 13 has deposed that miscreants had exploded two bombs causing severe wounds to Rathu Mahto and Alka Kamar. PWs 2, 4, 5, 6 and 10 have testified to the effect that they had seen both the deceased lying injured on the spot. PWs 2, 4, 5, 6 and 13 have further deposed that they had taken the injured Rathu Mahto and Akla Kamar on a tekker to Bokaro hospital where they died. PW 6 has clarified that Rathu Mahto died as soon as he was taken to the hospital, whereas Akla Kamar succumbed to the injuries after some time. Exhibits 2 series are signatures of PWs 5, 6 and 10 on inquest reports of the two deceased, their post-mortem reports (Exhibits 11 and 11/1 in pen of Dr. S.P. Sinha) have been proved by PW 2, Gouri Yadav, a formal witness. There is unimpeachable ocular testimony of the PWs that both the deceased succumbed to the bomb injuries the same night. S.P. Sinha) have been proved by PW 2, Gouri Yadav, a formal witness. There is unimpeachable ocular testimony of the PWs that both the deceased succumbed to the bomb injuries the same night. It is not disputed by the defence that on the fateful night around 9.30 p.m., there were two bomb explosions at short intervals at the line hotel of Rathu Mahto situated at village Bahadurpur, as a result of which Rathu Mahto and his servant Akla Kamar sustained wounds and they ultimately, succumbed to the injuries, when taken to Bokaro General Hospital, the same night. In the circumstances of the case, non-examination of the doctor who conducted post-mortem examination of the deceased persons does not adversely affect the prosecution case. The materials on record establish beyond doubt that the deceased persons met with a violent death. 9. PW 11 has testified to the effect that in the morning of 8.8.1990 the police officer had seized blood-stained earth and remains of bomb, namely, stringe and iron pieces from the line hotel of Rathu Mahto under seizure list (vide Exhibit 6), The identity of the place of occurrence has not been challenged by the defence. It is not the defence version that both the deceased had suffered wounds at some other place. There is sworn testimony of PWs 5 and 6 that a generator and some articles were seized by the police officer from the hotel of deceased Rathu Mahto on 8.8.1990 vide seizure list (Exhibit 6). 10. It has come in the evidence of PWs 4, 10 and 13 that after the explosions a cash box, a yellow V.I.P. and an attache of the deceased which contained his clothes and documents had been taken away by the miscreants from the hotel. They could know about it on their return to the hotel. It was urged by the learned Counsel for the appellant that in the fardbeyan (Exhibit 4) there is no mention of robbery committed in the hotel of deceased Rathu Mahto. It is suffice to say that the First Information Report was not lodged by PWs 4, 10, 13 or any other family member of the deceased. The reason is obvious that at that moment their anxiety was to rush the injured to the hospital at Bokaro to save their lives. It is suffice to say that the First Information Report was not lodged by PWs 4, 10, 13 or any other family member of the deceased. The reason is obvious that at that moment their anxiety was to rush the injured to the hospital at Bokaro to save their lives. The informant (PW 7) was himself injured in the incident and he had been taken to the Reforel hospital at Jaina More by the villagers for treatment where the fardbeyan was recorded by the police officer. The fact of commission of robbery came to the light during the investigation of the case. It has come in the evidence of PW 6 that on 8.8.1990 at about 10 a.m. the police officer had recovered an abandoned small wooden cash box, a cover of attache, a card-board separator and a small air-bag from Maghi Tand in his presence as well as in presence of PW 5, which is at a short distance to the East of the hotel of deceased Rathu Mahto under seizure list (Exhibit 3/A).PW 5 has corroborated this fact. The. recovery lends assurance to the prosecution case regarding commission of the robbery. 11. The crucial point which now arises for consideration is whether the appellant was involved in the occurrence. One may now proceed to discuss and analyse the evidence on the point. There is evidence of PWs 3, 7, 8 and 13 that the incident took place while Rathu Mahto, the deceased and the informant (PW 7) were playing Chess in the campus of the line hotel. They have further stated that at that time PW 3 was watching Chess game. According to PWs 7,8, and 13 the genesis of the incident was that there was altercation between deceased Rathu Mahto and one of the unknown customers/miscreants over the service of water to them and the miscreants hurled two bombs which caused loud explosions and the deceased sustained injuries and, ultimately, died. PWs 3 and 7 too had sustained wounds by bomb splinters. This fact has been testified to by PWs 3, 7 and 13. PW 18 (Dr. Devendra Prasad) has deposed that on 7.8.1990 around 11.15 p.m. while posted as Medical In-charge Referel Hospital, Jaina More, he had examined Barun Pd. Kushwaha (PW 13) and Atul Chandra Jha (PW 7). PWs 3 and 7 too had sustained wounds by bomb splinters. This fact has been testified to by PWs 3, 7 and 13. PW 18 (Dr. Devendra Prasad) has deposed that on 7.8.1990 around 11.15 p.m. while posted as Medical In-charge Referel Hospital, Jaina More, he had examined Barun Pd. Kushwaha (PW 13) and Atul Chandra Jha (PW 7). He has further stated that he found bleeding penetrating wound with sharp cut margin measuring 1" x 1/4" x 1/2" muscle deep with blackish colour, greasy material over the margin of the wound on the right side of the root of neck of Barun Prasad Kushwaha (PW 3). He has further stated that he had found a lacerated wound measuring 1/4" x 1/4" x muscle deep on the medial aspect of the right upper arm of Atul Chandra Jha (PW 7). The margin of the wound was blackish in colour with greasy materials. According to him, the wounds found on their persons were possible by explosive substance. Exhibits 2 and 2/1 are the injury reports of PWs 3 and 7 respectively in his pen. The medical evidence corroborates the testimony of PWs 3 and 7 that they had sustained wounds by bomb splinters. PW 3 has stated that on the sound of explosion, he fell down and ran away. He admits that 20-25 days after the occurrence he had attended the T.I. Parade in which perhaps he had identified two culprits, but expressed his inability to identify them in Court. The demeanour of the witness recorded by the trial Court is that PW 3 has declined to identify the appellant or the other accused. He has been declared hostile by the prosecution. PW 19 (Mahavir Kumar) the Judicial Magistrate has deposed that PW 3 (Barun Pd. Kushwaha) had identified the appellant in the T.I. Parade stating that there was bomb in his hand. It seems that PW 3 for the reasons best known to him did not choose to identify the appellant in Court. However, the fact that PW 3 did not identify the appellant in Court in the circumstances does not adversely affect the prosecution case. PW 8 (Dhiren Singh), the cook, has stated that 5/6 miscreants were taking meal on a cot and one of them picked up quarrel over serving of water and a miscreant had hit deceased Rathu Mahto with bomb. PW 8 (Dhiren Singh), the cook, has stated that 5/6 miscreants were taking meal on a cot and one of them picked up quarrel over serving of water and a miscreant had hit deceased Rathu Mahto with bomb. He has further stated that he fled from the line hotel in fear. He admits to have identified three culprits in the T.I. Parade, but he proceeded to make a positive statement that none of such identified culprit was present in Court. The trial Court has recorded the demeanour of PW 8 that he had declined to identify the appellant or any other accused. PW 19, on the other hand, has stated that PW 8 (Dhiren Singh) had identified the appellant saying that he had struck the deceased Rathu Mahto with bomb. PW 8 has been declared hostile by the prosecution. It appears that PW 8 has not deliberately identified the appellant in Court. 12. PW 7 has not named or identified any culprit in his evidence. He has stated that on the loud explosion of the bomb which had hit Rathu Mahto, he himself fell unconscious on the spot. He has further stated that he was deeply engrossed in the Chess game at the time of the incident. It is quite possible that he might not have been able to completely identify the assailant of the deceased. Further, he was so shocked that he became unconscious on the spot. In the given circumstances, his failure to identify the appellant or any other culprit in Court does not cast any doubt on the prosecution case. PW 2 (Jitan Singh), hostile witness, has not identified any accused in Court, although he had identified the appellant in T.I, Parade amongst those whom he had seen taking food around 9 Oclock on the fateful night at the hotel of deceased Rathu Mahto vide Paragraph 2 of the deposition of PW 19. PW 4 (Vijay Mahto), who owns a betel shop near the line hotel, has stated that on 7.8.1990 around 9 p.m. he had visited the hotel of Rathu Mahto and when he proceeded for his house, two persons had arrived and placed order with PW 8 for meal and while on way at a distance of about 300 mts.. he heard sound of explosion. Whereafte he rushed to the hotel with villagers to find that the unknown customers/miscreants had disappeared. he heard sound of explosion. Whereafte he rushed to the hotel with villagers to find that the unknown customers/miscreants had disappeared. He has stated that in the T.I. Parade he had identified two culprits, but he was unable to identify them in Court after three years had elapsed. PW 6 (Madan Mahto), who lives in the vicinity of the line hotel, states in his chief-examination that around 9 p.m. he had visited the line hotel, some outsiders arrived and sat on cot and while he was returning home on the way he heard explosions and ran to the spot. He claims to have identified one miscreant in the T.I. Parade whom he had seen taking meal at the hotel and his name was Jugnu Mahto (the appellant), but with passage of time he did not recollect the physical description of such culprit and was unable to identify him in Court. During the cross-examination, he has made a statement suitable to the defence that before the T.I. Parade the appellant had been shown to him at the police station. His evidence on identification merits no further consideration. 13. PW 10 (Suresh Mahto) has deposed that as usual he visited the line hotel, around 9.30 p.m., on the date of occurrence and while he was taking tea five miscreants in two batches of two and three came one after another to the line hotel and meanwhile he left for his home and at a distance of about 50-60 mts. we heard sound of explosion Thereafter with the villagers he went to the hotel. He has further stated that in the T.I. Parade he has identified three miscreants, one of whom had been seen sitting with a plastic bag at the hotel, while another had an air bag, but in Court he identified one accused, namely, Lal Md. Ansari (since dead). He did not identify the appellant in Court. 14. He has further stated that in the T.I. Parade he has identified three miscreants, one of whom had been seen sitting with a plastic bag at the hotel, while another had an air bag, but in Court he identified one accused, namely, Lal Md. Ansari (since dead). He did not identify the appellant in Court. 14. PW 13 (Jitendra Kumar Mahto) has deposed that on the fateful night, around 10 p.m., he was sitting on a Chowki near the counter of the line hotel and at that time two persons from the west came to the hotel and sat on a cot and placed order for food which was served by the servant and there was a bag beneath them and after an interval of 15 minutes a batch of three persons came from East, one of whom had a plastic bag and they too were served food, and the two unknown miscreants who had come in the first batch abused the servant and when Rathu Mahto (deceased) protested to it. one of them abused him and there was a lull whereafter deceased Rathu Mahto resumed the Chess game and after some time one of the miscreants who had come in the second batch took out a bomb from the bag and hurled it on Rathu Mahto causing loud explosion and injury to him. He has further stated that out of the five miscreants two were armed with pistols, one with a big knife and the remaining two had hurled bombs. It has come in his evidence that the line hotel faces West with a hall for entrance and the counter is in Northern portion of it adjacent to the wall. He has further stated that three tube-lights inside the hall and one tube-light out-side the hotel on a bamboo support were burning at the time of the occurrence. 15. PWs 3 to 8 have corroborated the testimony of PW 13 that murcury lights were burning at the hotel of deceased (Rathu Mahto) at the time of the occurrence. It has been noticed above that a generator was seized from the hotel by the police officer the next morning. 16. PWs 4 and 5 have supported the presence of PW 13 at the hotel at the time of the occurrence. His presence on the spot at the time of the occurrence cannot be doubted. 17. It has been noticed above that a generator was seized from the hotel by the police officer the next morning. 16. PWs 4 and 5 have supported the presence of PW 13 at the hotel at the time of the occurrence. His presence on the spot at the time of the occurrence cannot be doubted. 17. It has come in the evidence of PW 7 that number of customers at the hotel was not large. PW 6, on the other hand, has stated that there were some customers between two to five. PWs 5 and 10 have corroborated the testimony of PW 13 that unknown customers had come in two batches It has been elicited in the cross-examination of PW 13 that at the time of the occurrence there were five customers. PW 13 identified the appellant in Court. He has stated that he had identified the appellant in the T.I. Parade held on 17.9.1990. There was sufficient light on the spot at the time of the occurrence. PW 13 was sitting at the counter, so he had occasion to watch the activities of the unknown customers. A comment has been made that PW 13 has not expressly stated in his evidence that he had seen the appellant at the spot, nor he has attributed any overt act to him. The evidence of PW 3 is to be read in the context that he had seen the appellant in the group of unknown miscreants at the time of the occurrence and for this reason he identified him in the T.I. Parade, as well as in Court. PW 9 has deposed that Jitendra Kumar Mahto (PW 13) had identified the appellant in the T.I. Parade conducted by him on 17.9.1990 stating that he had seen him on the spot with a bomb in his hand, Exhibit 8 is the T.I. Parade Chart, which shows that PW 13 had identified the appellant in the T.I. Parade. 18. PW 9 has deposed that Jitendra Kumar Mahto (PW 13) had identified the appellant in the T.I. Parade conducted by him on 17.9.1990 stating that he had seen him on the spot with a bomb in his hand, Exhibit 8 is the T.I. Parade Chart, which shows that PW 13 had identified the appellant in the T.I. Parade. 18. PW 5 (Rajan Mahto) has testified to the effect that around 9.30 p.m. on 7.8.1990 he had been to be line hotel and in his presence two unknown customers in a batch arrived and started taking meal, whereafter another batch of three unknown customers came and sat on a cot and in the meantime he left the place and while he went at a distance of about 150 yards, he heard sound of explosion and the villagers he went to the hotel. He had identified the appellant in Court amongst unknown customers whom he had seen taking meal at the hotel on that night. PW 19 has corroborated the fact that PW 5 had identified the appellant in T.I. Parade. The evidence of PW 5 lends assurance to the testimony of PW 13 that the appellant was present on the spot at the time of the occurrence. It is true that PW 13 has not attributed any overt act to the appellant, but the fact remains that he has identified the appellant amongst the miscreants who had committed the crime. There is no material on the record to suggest that PWs 5 and 13 have any animosity with the appellant. 19. It has been canvassed by the learned Counsel for the appellant that P.Ws 2, 6 and 8 have stated that the suspects had been shown to them before the T.I. Parade at the police station and so the evidence of PWs 5 and 13 on the point of identification should be discarded. PWs 2 and 8 are hostile witnesses. The defence has not suggested to PW 5 that the suspects had ever been shown to him by the police before the T.I. Parade. PW 13 had made categorical statement that Daroga had not taken him to the police station before the T.I. Parade. The appellant had surrendered in Court on 29.8,1990. No material has been placed before us to show that the appellant was in police custody in the instant case. PW 13 had made categorical statement that Daroga had not taken him to the police station before the T.I. Parade. The appellant had surrendered in Court on 29.8,1990. No material has been placed before us to show that the appellant was in police custody in the instant case. Hence, the above contention of the learned Counsel for the appellant is devoid of merit. 20. A criticism has been that the appellant surrendered in the case in Court on 29.8.1990 and he was put on T.I. Parade on 17.9.1990 and there has been inordinate delay in putting him on T.I. Parade. The appellant was put on T.I. Parade within 20 days and it cannot be said that there has been abnormal delay in holding the T.I. Parade of the appellant. There is evidence of PW 19 that he had conducted the T.I. Parade of the appellant in proper manner by mixing him with nine persons in a row of similar descriptions according to the rules. 21. It is true that the I.O. has not been examined in the present case. No material contradiction has been elicited by the defence from PWs 5 and 13 with reference to their statements in Court and before the police. The defence has failed to show that any prejudice has been caused to it due to non-examination of the I.O. 22. There is no reason to discard the testimony of PWs 5 and 13 on the identification of the appellant. A family member of the deceased would not spare the real culprit and falsely implicate innocent person. 23. In view of the discussions made above, it is established that the appellant with his associates committed the murder be deceased persons and robbery in furtherance of common intention. Hence, the conviction of the appellant finder Sec. 302 read with Secs. 34 and 394 of the Indian Penal Code is affirmed. The charge under Sec. 307 read with Sec. 34 of the Indian Penal Code is defective. The name of any victim on whom attempt was made to murder has not been set out in the charge. This is a material omission. Hence, the conviction of the appellant under Sec. 307 read with Sec. 34 of the Indian Penal Code cannot be sustained. So, his conviction under these sections is set aside and he is acquitted of this charge. This is a material omission. Hence, the conviction of the appellant under Sec. 307 read with Sec. 34 of the Indian Penal Code cannot be sustained. So, his conviction under these sections is set aside and he is acquitted of this charge. The allegation is that some clothes and a monkey cap belonging to deceased Rathu Mahto which had been kept concealed by the appellant were recovered from the house of Kunju Mahto (PW 17) at village Pichri within Petarbar Police Station. The police officer who conducted the search and seizure has not been examined. The seizure list has also not been brought on record. PW 14, Md. Halim, a witness to the seizure has turned hostile to the prosecution. He has simply stated that some recovery was made by the police from some house at village Pichri. PW 17 (Kunju Mahto) too has become hostile to the prosecution. He has simply stated that on 28.8.1990 the police had visited his house in search of the appellant; that the appellant, a relation of his daughter-in-law, was living on rent in his house and on the date of the raid by the police, the appellant was not at his house. He does not whisper in his evidence that any article was seized by the police from his house or that such seized article had been kept concealed by the appellant. The statement of PW 17 was recorded under Section 164 Cr.P.C. during investigation by P.W. 20. P.W. 17 has denied to have made statement under Sec. 164 Cr.P.C. that in the morning of 8.8.1990 the appellant came to his house and kept a bag which contained a dhoti, two shirts and a paijama in a plastic bag. It is well settled that a statement under Sec. 164 Cr.P.C. is not substantive piece of evidence. It may be used to corroborate or contradict its maker. Exhibit 10 can. at best, be relevant to contradict/discredit the evidence of PW 17. There is no positive evidence on record to suggest that the stolen property kept concealed by the appellant had been recovered. Therefore, in the facts and circumstances, the conviction of the appellant under Sec. 411 of the Indian Penal Code cannot be upheld and is set aside. The appellant is acquitted of the charge under Sec. 411 of the Indian Penal Code. 24. Therefore, in the facts and circumstances, the conviction of the appellant under Sec. 411 of the Indian Penal Code cannot be upheld and is set aside. The appellant is acquitted of the charge under Sec. 411 of the Indian Penal Code. 24. In the result, this appeal is dismissed with the above observations/modifications.