Judgment D.P.S.Choudhary, J. 1. The sole appellant Nanhak Singh alias Devendra Singh was tried by the Sessions Judge, Vaishali at Hajipur in Sessions Trial Case No. 42 of 1983 charged of the offence under Section 302, read with Section 34 of the Indian Penal Code, for the murder of Subhash Singh. By his judgment and order dated 17.1.1987 the Sessions Judge found him guilty of the offence under Sections 302/34 of the Indian Penal Code and sentenced him to undergo rigorous imprisonment for life. One Diwakar Singh was also an accused in the case but he died during the trial. 2. The occurrence is said to have taken place on 1.2.1979 at 3.30 p.m. at village and P.S. Raghopur, District Vaishali, within the jurisdiction of Police Station, Raghopur. In his fardbeyan, the informant, Ashok Singh (PW 6) stated that at that time he was at his darwaja along with his brother Subhash Singh (deceased) and some of the co-villagers, namely, Sukhnandan Singh, Hardeo Singh and Seth Bahadur Singh (PWs 2, 1 and 4). Accused Nanhak Singh alias Devendra Singh along with his brother, Diwakar Singh (since deceased) and their father Brahamdeo Singh (not sent up) came near darwaja of the informant. Accused Nanhak Singh was armed with rifle and so also his brother, Diwakar Singh. Their father Brahamdeo Singh asked his sons to finish the informant and others. On this, Diwakar Singh fired from his rifle which hit Subhash Singh, the brother of the informant at his shoulder. The bullet passed through his chest. Accused Nanhak Singh fired from his rifle at the informant but he escaped unhurt. Sub-has Singh fell down and died instantaneously, thereafter accused persons fled away. The motive for the occurrence alleged is that two days before, i.e. on 30.1.1979 accused Nanhak Singh was slapped by the informant and his brother Subhash Singh when he was stealthily uprooting the informants standing khesari crop. On the same day at 5.00 p.m., the Officer In-charge, Raghopur, Sri Raghunandan Sinha (PW 8) heard a rumour regarding the murder and at about 6.00 p.m., he went to the darwaja of Ashok Kumar and recorded his fardbeyan (Ext. 1) which was witnessed by one Sheo Kumar Singh (Ext. 2). The Investigating Officer took up the investigation, prepared the inquest report on the dead body of Sub-hash Singh (Ext. 4) and obtained signature of the two witnesses (Exts. 5 and 6). 1) which was witnessed by one Sheo Kumar Singh (Ext. 2). The Investigating Officer took up the investigation, prepared the inquest report on the dead body of Sub-hash Singh (Ext. 4) and obtained signature of the two witnesses (Exts. 5 and 6). He found the dead body of Sub-hash Singh in the lower part of the Sahan of Ashok Kumar Singh, the informant, which is lower than the western part of the Saltan. He found blood near the dead body. There was a Bargad tree at about 9 steps from where the dead body was found. There were some houses in the near vicinity. He seized the blood-stained earth and prepared seizure list (Ext. 7), thereafter sent the dead body for post-mortem examination. He recorded the statement of several witnesses including PWs 1, 2, 3, 4 and 5 and after completing the investigation submitted the charge-sheet. 3. In cross-examination, the Investigating Officer stated that at the place of occurrence, he did not find empty cartridges. The place of occurrence was not a cultivable land. He further stated that though he sent the blood-stained earth for chemical examination but he did not receive the report. 4. Dr. Sheo Shankar Choudhary (PW 7) who held the post-mortem examination on the dead body of Subhash Singh on 2.2.1979 at 3.00 p.m. at Malanda Medical College and Hospital, Patna found an oval wound of entrance 1-1/2" x 1/2" on the upper and anterolateral part of the left arm. On opening the chest cavity, he found left first rib and right 3rd and 4th ribs fractured. He found left lung and right lung perforated. In his opinion, death has caused due to haemorrhage and shock caused by the above injury which was caused by fire-arm. The death has caused within 36 hours approximately from the time of the post-mortem examination (Ext. 3). 5. The prosecution also examined several eye-witnesses in support of its case. PW 1, Hardeo Singh stated that on the date of occurrence at about 3.30 p.m. he went near the house of Sub-hash Singh (deceased) from his house on hearing hulla. There was a firing which hit Subhash Singh who died on the spot. He did not see who fired at him. PW 1, Hardeo Singh stated that on the date of occurrence at about 3.30 p.m. he went near the house of Sub-hash Singh (deceased) from his house on hearing hulla. There was a firing which hit Subhash Singh who died on the spot. He did not see who fired at him. The prosecution declared him hostile and in his cross-examination, he stated that he does not remember whether before the Investigating Officer he stated that accused Nanhak Singh and Diwakar Singh were armed with rifle and Diwakar had fired at Subhash Singh. 6. Similarly PW 2, Sukhnandan Singh has been declared hostile by the prosecution because in his examination in chief he did not say who fired at the deceased. But in the cross-examination by the prosecution, he stated that Diwakar Singh had fired at Subhash Singh but Nanhak Singh, who fired his gun, did not hit anyone. From his cross-examination, it appears that this witness and the informant are the descendants of a common ancestor. 7. PW 3, Bihari Singh stated in the examination-in-chief that from his darwaja, he saw Diwakar Singh, Brahamdeo Singh and Nanhak Singh running towards west. He followed them and found that they went to the darwaja of Brahamdeo Singh, father of the informant and Diwakar Singh fired at Subhash Singh. Nanhak Singh fired at the informant but did not hit him. According to him, a day before the occurrence accused Nanhak Singh has uprooted the khesari crops of deceased Subhash Singh. In cross-examination, he stated that he did not find any person in the northern field of Subhash Singh when he was hit by the fire-arm but in the eastern field, there were three persons. 5-6 persons were present near his door. In his presence, the Investigating Officer visited the place of occurrence. It was drizzling just before the occurrence. 8. PW 4 (Seth Bahadur Singh) stated that on the date of occurrence at about 3.00 p.m., he was at the danvaja of Subhash Singh along with PWs 1 and 2 and the informant. Accused Nanhak Singh and Diwakar Singh along with their father Brahamdeo Singh came near the danvaja and Diwakar Singh fired from his rifle causing injury to Subhash Singh. Nanhak Singh fired from his rifle at the informant but it did not hit him. Subhash Singh died on the spot. In cross-examination, he admits that he is cousin of the informant. Accused Nanhak Singh and Diwakar Singh along with their father Brahamdeo Singh came near the danvaja and Diwakar Singh fired from his rifle causing injury to Subhash Singh. Nanhak Singh fired from his rifle at the informant but it did not hit him. Subhash Singh died on the spot. In cross-examination, he admits that he is cousin of the informant. He further stated that the fardbeyan was recorded in his presence at the place of occurrence by the Investigating Officer who also recorded his statement Sukhnandan and Harnandan (PWs 1 and 2) were also examined by the Investigating Officer in his presence. He further stated that at the time of occurrence, he was standing at a distance of about five laggi from Diwakar Singh. 9. PW 5 (Ram Sajiwan Singh) stated that on the date of occurrence at about 3-4 p.m. he went to the house of Subhash Singh on hearing hulla and found Subhash Singh lying dead. He saw Diwakar Singh and Nanhak Singh running towards east along with 8-10 persons but he did not identify any of them. This witness was declared hostile and was cross-examined by the prosecution. He stated that he was not examined by the Investigating Officer. 10. PW 6 (Ashok Kumar Singh) is the informant and brother of deceased, Subhash Singh. According to him, on 1.2.1979 at about 3.30 p.m. he was at his darwaja along with his brother Subhash Singh (deceased), Sukhnandan Singh (PW 2), Hardeo Singh (PW 1) and Seth Bahadur Singh (PW 4). He saw Nanhak Singh, Diwakar Singh armed with rifle and Brahamdeo Singh coming to his darwaja. On the order of Brahamdeo Singh, Diwakar Singh fired at Subhash Singh, resulting in his instantaneous death. Nanhak Singh fired at him but it did not hit him. According to him, the motive for the occurrence was that on 30.1.1979 he and his brother Subhash Singh has slapped Nanhak Singh for uprooting his standing khesari crops. In cross-examination, he admitted that there is no witness on the fact of uprooting the khesari crops by the accused. The Investigating Officer examined him on the same day at his darwaja over which he was signed. According to him, the Investigating Officer examined other witnesses in his presence including Seth Bahadur Singh (PW 4). According to him, Subhash Singh lived in the same angan. The Investigating Officer examined him on the same day at his darwaja over which he was signed. According to him, the Investigating Officer examined other witnesses in his presence including Seth Bahadur Singh (PW 4). According to him, Subhash Singh lived in the same angan. He further stated that the accused persons came to his darwaja, abused them and thereafter fired. 11. I have already discussed the evidence of Investigating Officer (PW 8). There is no other material witness examined on behalf of the prosecution. 12. The case of the defence is that the appellant is innocent and has been falsely implicated because of previous enmity. It was submitted on behalf of the appellant that prosecution has failed to fix the place of occurrence. It is not categorically fixed from the evidences of PWs where the deceased was at the time of alleged occurrence and from where he was shot at. As per the first information report, the deceased, Subhash Singh along with the informant and other was sitting at his door. The accused persons come near the Bargad tree and accused Diwakar Singh fired from there causing injury to Subhash Singh who died instantaneously. In the inquest report, it is mentioned that dead body was found at about 16 steps east of the house of the informant. The Investigating Officer (PW 8) visited the place of occurrence on the same night and found the dead body in the Saltan of the informant. According to him, the place of occurrence is eastern portion of the informants Sahan. The Sahan is on higher level and the dead body was found at a distance of about 16 steps from the door in the lower portion of Sahan. This suggests that deceased was not shot at his door as mentioned in the first information report and stated by the PWs including the informant (PW .6). It is not the case of the prosecution that deceased ran to some distance and thereafter, he was shot at. On the other hand, it is the evidence of PWs that he died instantaneously after he was shot at. The Investigating Officer has not found blood mark at the door of the informant, but he found blood where dead body was lying. This suggests that deceased suffered the gunshot injury at a different place and his dead body was brought near Bargad tree and thrown on the ground. The Investigating Officer has not found blood mark at the door of the informant, but he found blood where dead body was lying. This suggests that deceased suffered the gunshot injury at a different place and his dead body was brought near Bargad tree and thrown on the ground. Learned Counsel appearing on behalf of the State submitted that a careful reading of the evidence of the Investigating Officer shows that there is no discrepancy in the prosecution case regarding place of occurrence. The door of the informant and Sahan are adjacent. The Sahan is at lower level than the door. The dead body was found at a distance of about 16 steps from the door of the informant in the lower portion of the Sahan. It is consistent case of the prosecution that accused persons fired at the deceased from near the Bargad tree which is at a distance of about 9 steps from the place where the dead body was lying. Therefore, there is no material contradiction in the evidence of PWs and the Investigating Officer regarding place of occurrence. 13. I have carefully read the deposition of the. eye-witnesses including PWs 4,5 and 6, and the evidence of the Investigating Officer and I am convinced that there is no discrepancy regarding the place of occurrence as described in the first information report. The occurrence took place in front of the door of the informant which has been described as Sahan and the Bargad tree, from where the accused persons are said to have fired, is situated at a distance of about 9 steps. Therefore, no doubt is created with regard to the place of occurrence. 14. It was submitted on behalf of the appellant that the injury found on the deceased was not possible in the manner alleged by the prosecution. The deceased was standing at a higher level in the Sahan and the accused fired at him from a lower level. According to the Doctor, the oval wound of entrance was on the upper and anterolateral part of the left arm. The left 1st rib and the right 3rd and 4th ribs were also found fractured. The cartridge was lodged in the subcutaneous tissues under the skin to right nipple. All this suggest that the track of the bullet had downward tendency. The left 1st rib and the right 3rd and 4th ribs were also found fractured. The cartridge was lodged in the subcutaneous tissues under the skin to right nipple. All this suggest that the track of the bullet had downward tendency. After examining the post-mortem report and the evidence of the Doctor, we do not find much substance in this contention. The evidence suggest that after entrance, the bullet had hit the left first rib and was then diverted towards below causing fracture of right 3rd and 4th ribs. Such deflection of the bullet is possible after hitting the hard bony ribs. 15. The learned appellants lawyer submitted that as per the first information report, Brahamdeo Singh had ordered to kill but this part of the prosecution case has been disbelieved at the initial stage of investigation and he has not been sent up in the case. This suggested that prosecution has not come with clean hands. From the evidence of PWs 4 and 6, we have found that they also named Brahamdeo Singh as the order giver. Therefore, only on the ground that Investigating Officer at the initial stage has not found sufficient material against him, does not lead to the conclusion that the prosecution case is doubtful. 16. It is further submitted on behalf of the appellant that the earliest version of the Dafadar at the police station has not been brought on record nor the Dafadar has been examined. There is no explanation for this lacuna. It is possible that at the initial stage, the Dafadar has not named any of the accused but subsequently, after due deliberation, the name of the accused persons was added before the Investigating Officer. I do not find such substance in this contention in view of the evidence of the Investigating Officer (PW 8). He stated that on 1.2.1979 at about 15 hours, he heard a rumour at the police station and rushed to the place of occurrence and recorded the fardbeyan of the informant. He does not say about any station diary entry made by him on the statement of Dafadar. 17. It was further contended on behalf of the appellant that out of the eight witnesses examined on behalf of the prosecution PWs 1 and 2 have been declared hostile. PW 3 is not named in the first information report. PW 4 is cousin of the informant. 17. It was further contended on behalf of the appellant that out of the eight witnesses examined on behalf of the prosecution PWs 1 and 2 have been declared hostile. PW 3 is not named in the first information report. PW 4 is cousin of the informant. PW 5 was also declared hostile. Therefore, the solitary evidence of PW 5 remains uncorroborated by any independent and reliable witness. The evidence of this witness has number of infirmities and he should not be relied upon as an eyewitness. Therefore, his evidence should not form the basis of conviction of the accused. The learned appellants lawyer submitted that no reliance should be placed on the evidence of PW 4 who is cousin of the informant. He was examined by the Investigating Officer on 16.5.1979, about three and half months after the alleged occurrence. He admits that he lives in the same angan of the informant. He stated that he was examined on the same, day by the Investigating Officer but the Investigating Officer stated that on search he was not found on that day in the village. Therefore, he was examined on 16.5.1979. The evidence of such witness can only be relied upon if there is plausible explanations for recording his statement by the Investigating Officer at belated stage, but no explanation, whatsoever, has been given by PW 4. On the other hand, it appears that he falsely stated that he was examined on the same day. Learned appellants lawyer further submitted that from the evidence of the PWs, it appears that the appellant, Nanhak Singh has been implicated in this case as there is no reliable evidence that he fired at the informant which did not hit him. The Investigating Officer stated that he did not find any empty cartridge at the place of occurrence. From the judgment of the trial Court (para 32), it appears that because of lack of evidence against this appellant no charge was framed against him under Section 307 of the Indian Penal Code. As such, the presence of the appellant at the place of occurrence becomes doubtful. The prosecution has also failed to prove that the alleged murder was committed by deceased accused Diwakar Singh in furtherance of common intention of all. As such, the presence of the appellant at the place of occurrence becomes doubtful. The prosecution has also failed to prove that the alleged murder was committed by deceased accused Diwakar Singh in furtherance of common intention of all. The essence of that liability is to be found in existence of common intention leading to doing of a criminal act in furtherance of such intention. Besides, the allegation of firing made against the appellant remains uncorroborated by any reliable evidence as stated above. 18. Learned appellants lawyer further submitted that the testimony of the abovementioned eye-witnesses including the informant are not truthful nor there is any reliable evidence that this accused had fired in furtherance of the common intention, as such the appellant is entitled to acquittal. In support of this contention, the learned lawyer relied on the decision reported in AIR 1998 SC page 1936 :1998 (1) East Cr C 903 (SC) (Harjinder Singh, appellant V/s. Karnail Singh and others, respondents). 19. The learned APP submitted that though PWs 1, 2 and 5 have been declared hostile but in part they have supported the prosecution case. PW 5 stated that he saw the accused persons fleeing from the place of occurrence and also found Subhash Singh lying in a pool of blood. He further submitted that though PWs 3 and 5 have not been named in the first information report but on this ground, their evidences should not be disbelieved. PW 3 is an eye-witness and there is nothing in his cross-examination to discredit him. If, these witnesses are found otherwise independent and reliable, they should not be discarded merely on the score that they are not named in the first information report. In support of this contention, he relied on a decision reported in 1996 SCC (Cr) page 370 (Babu Singh V/s. State of Punjab). The learned APP further submitted that the evidence of PW 4 who is an eye-witness, should not be discarded on the ground that he was examined by the Investigating Officer after much delay. His evidence is otherwise convincing and reliable. In support of this contention, he relied upon the decision reported in AIR 1996 SC page 733 (Krishnapal and another V/s. State of Uttar Pradesh). His evidence is otherwise convincing and reliable. In support of this contention, he relied upon the decision reported in AIR 1996 SC page 733 (Krishnapal and another V/s. State of Uttar Pradesh). He further submitted that the evidence of the informant (PW 6) finds corroboration from other eyewitnesses, including PWs 3 and 4 and also finds corroboration from the evidence of PW 5 who had seen the accused person fleeing from the place of occurrence. Their evidences find corroboration from the evidence of the Doctor who opined that Subhash Singh died due to the injury caused by firearm and the Investigating Officer has found blood near the dead body. Therefore, the evidences of all these witnesses read together, proved the charge levelled against the appellant beyond all reasonable doubt. 20. Having considered the submission of both sides and scrutinising the evidences as discussed above, I have no hesitation in coming to the conclusion that the prosecution has been able to substantiate that murder of Subhash Singh was committed in furtherance of the common intention of appellant, Nanhak Singh alias Devendra Singh along with accused Diwakar Singh, since deceased. 21. In the result, the judgment and order of the trial Court does not call for any interference by this Court. This appeal is, therefore, dismissed. Bail bonds of the appellant are hereby ordered to be cancelled and he is directed to surrender before the Court below to serve the remaining part of sentence. B.P.Singh, J. 22 I agree.