Judgment B.N.Singh Neelam, J. 1. Both these Criminal Appeals so preferred under section 374 (2) of the Code of Criminal Procedure are against the judgment of conviction and sentence so passed by the learned 7th Additional Sessions Judge, Munger dated 16th of April, 1987 in Sessions Trial No. 178/85 by virtue of which the learned court below has found accused- appellant Pramod Mahto guilty of committing offence coming under the purview of section 302 of the Indian Penal Code (hereinafter referred to as I.P.C.) for intentionally causing the death of Devendra Mahto on 17.5.84 at village Rasulpur P.S. Surajgarha district Munger and convicting him thus under section 302 I.P.C. After hearing on the point of sentence, the learned court below has directed him to undergo rigorous imprisonment for life. As regards accused appellant Bechan Paswan, he has been found guilty of committing offence under section 302 read with section 34 I.P.C. and is also sentenced to undergo rigorous imprisonment for life. 2. In Criminal Appeal No. 211/87 the sole accusedappellant Bechan Paswan being convicted under section 302/34 I.P.C. and in Criminal Appeal No. 246/87 the sole accusedappellant is Pramod Mahto being convicted under section 302 I.P.C. since these appeals arise out of the same judgment of conviction and sentence so passed, they are heard together and this single judgment will thus dispose of both the criminal appeals. 3. The prosecution case in short as given by Kishori Mahto, the first informant who happended to be the father of the deceased Devendra Mahto is that on 17.5.84 at about 19.30 hrs. Devendra Mahto (since deceased) son of Kishori Mahto, the first informant, was sent to nearby shop of one Mansoor Alam as to purchase tobacco, the said shop being hardly at a distance of 15 yards from the house of the informant. After purchasing tobacco the moment Devendra Mahto, son of the informant, came out of the said shop, it is the case of the prosecution that these two accusedappellants along with and Bibhakar Mahto and one more companion who could not be identified, surrounded Devendra Mahto and at that time as far as accused-appellant Parmod Mahto is concerned, he is said to have been armed with pistol whereas accused- appellant Bechan Paswan with a gun in his hand. Further case of the prosecution is that Pramod Mahto accused-appellant shot at Devendra Mahto with pistol causing injury on his chest on which the first informant Kishori Mahto raised hue and cry on which other witnesses had arrived there and could see the occurrence so taking place at a nearby lane north to the said shop of Mansoor Alam, the lane running from east to west. The accused persons are also said to have been chased by some of the witnesses but they managed to escape and while after retreating of the accused persons, the informant with the help of others took the injured Devendra Mahto to the hospital for treatment, where he breathed his last. In the fardbeyan so recorded which is marked as Ext. 1 being proved by P.W. 3 because of the first informant of this case being, in course of trial dying as specifically coming from the mouth of P.W. 1 at paragraph 4, the motive so also is attributed for the occurrence taking place and in this connection Kishori Mahto the first informant has detailed that a fortnight prior to this occurrence the present accused persons had kidnapped one Mahendra Mahto who happened to be the agnate of the informants family and Rs. 5,000/- was so demanded for his release and it was Devendra Mahto (sincedeceased) who had protested to this demand so made by the accused persons for payment of Rs. 5,000/- and the accused persons carrying vengeance as a result of which informants son Devendra Mahto was so done to death as detailed above. Fardbeyan was so recorded in the hospital on the basis of which formal F.I.R. was so drawn up and after completion of the investigation, chargehseet was so submitted against the accused per- sons. After taking cognizance, it further transpires that case record was so sent to the court of sessions for trial. 4. In course of trial it transpires that as far as Bibhakar Mahto is concerned his trial was so split up because of his being minor at that time and it was sent for disposal under the Juvenile Act to the court of concerned Chief Judicial Magistrate. 4. In course of trial it transpires that as far as Bibhakar Mahto is concerned his trial was so split up because of his being minor at that time and it was sent for disposal under the Juvenile Act to the court of concerned Chief Judicial Magistrate. Accused-appellant Pramod Mahto stood charged under section 302 I.P.C. whereas another accused-appellant Bechan Paswan was so charged under section 302/34 I.P.C, the charges against them under one head being framed by the learned 7th Additional Sessions Judge on the 29th of August, 1985. The accused- appellants abjured the guift and claimed to be tried. 5. In course of trial it further transpires that seven prosecution witnesses were so examined on behalf of the prosecution out of whom P.Ws. 1, 2 and 5 claimed themselves to be the eye witnesses to the scene when informants son Devendra Mahto was so done to death. P.Ws. 3 and 6 are formal witnesses. P.W. 4 is the Medical Officer conducting post mortem on the dead body of the deceased Devendra Mahto and the post mortem report so prepared by him is proved in course of trial marked as Ext. 3. P.W. 6 is a Police Officer who recorded the Fardbeyan who is not Investigating Officer of the case. The Investigating officer of this case is Parmeshwar Singh who figures as P.W. 7. By looking into the documents so filed and proved from the prosecution side it transpires that over and above the Fardbeyan (Ext. 1), Inquest Report (Ext. 2), Post Mortem Report (Ext. 3), Seizure List (Ext. 4), some of the documents were also filed relating to the antecedent of the accused- appellants and they are marked as Exts. 5, 5/1 and 6. Certified copies of the char- gesheet are also filed of some of the cases showing accused-appellants to be accused in other cases and they are proved and marked as Exts. 7 and 7/1. In course of trial one defence witness is also examined who happended to the lawyers clerk proving Exts. A and A/1 and they are said to be affidavit sworn by P.Ws. 1 and 5 namely Munni Paswan and Chhedi Modi after the occurrence relating to the murder of Devendra Mahto stating with regard to their not seeing the occurrence which has been disbelieved by the learned court below as detailed in the impugned judgment under challenge. A and A/1 and they are said to be affidavit sworn by P.Ws. 1 and 5 namely Munni Paswan and Chhedi Modi after the occurrence relating to the murder of Devendra Mahto stating with regard to their not seeing the occurrence which has been disbelieved by the learned court below as detailed in the impugned judgment under challenge. The learned court below, it transpires after evaluating the evidence available on record, oral and documentary, has come to the conclusion that in course of trial the prosecution had succeeded as to bring home the charges so levelled against the accused-appellants and taking that view the accused-appellant Pramod Mahto is convicted under section 302 I.P.C. whereas another accused-appellant Bechan Paswan under section 302 read with section 34 I.P.C. and they are sentenced thereunder as detailed above which need not be repeated. It is against this judgment of conviction so passed that these two Criminal Appeals are being so preferred. 6. Learned counsel appearing on behalf of the appellants has submitted that the judgment of conviction under challenge is bad in law as well as in facts and the learned court below has erred in relying upon the evidence particularly of. P.Ws 1 and 5 who had, prior to their deposition in court, sworn affidavits marked as Exts. A and A/1 with regard to their having no knowledge of the present case particularly on the point of manner of occurrence. As regards P.W. 2 Mahabir Mahto, it is further pointed out that though he claimed himself to be an eye witness but by taking into consideration the totality of his evidence it will transpire that this witness had a week eye sight and in that case there was no question of his in any way seeing the occurrence taking place as depicted by him which rather would not have been relied upon. It is also submitted that good number of witnesses so shown as witnesses in the chargesheet so submitted are not examined by the prosecution in course of trialreasons best known to the prosecutionthe advantage of which rather should go to the accused-appellants. It has been emphatically argued on behalf of the accused-appellants that the means of identification is not detailed in the Fardbeyan so given and there is also no seizure of lantern said to have been burning in the shop of Mansoor Alam. It has been emphatically argued on behalf of the accused-appellants that the means of identification is not detailed in the Fardbeyan so given and there is also no seizure of lantern said to have been burning in the shop of Mansoor Alam. That was not even been produced before the Investigating Officer by the informant and because the means of identification not being proved it has thus given fatal blow to the prosecution case and this aspect has not at all been considered by the learned court below while convicting the accused-appellants and sentencing them to undergo rigorous imprisonment for life. It has also been pointed out that a person who can be said to be the eye witness was the first informant but because of his death taking place in course of trial he was not so examined and the F.I.R. so lodged by him cannot be taken to be substantial evidence and in that light the whole prosecution story so put forward becomes shaky and the learned court below in such circumstances instead of convicting the accusedappellants would have acquitted them giving benefit of doubt. Attention is also drawn to the evidence of P.W. 7 who is the Investigating Officer of this case and by referring to its paragraph 1 it is pointed out that when for the occur rence taking place at 19.30 hrs. on 17.5.84 and the matter reported at 22.30 hrs. on 17.5.84, how is it that P.W. 7 arrived at the place of occurrence and made inspection of the place of occurrence at 20 hrs. on that very night? This rather, as submitted, goes to show that there is some suppression of facts so coming from the prosecution side as not depicting the true state of affairs and rather falsely implicating the accused- appellants with whom they were having some grudge and in that light too the impugned judgment of conviction and sentence under challenge require interference which be rather set aside as to meet the ends of justice. Casually it is also referred that the case of one of the accused also split up i.e. accused Bibhakar Mahto who was held to be minor at the time of occurrence, the learned Chief Judicial Magistrate in G.R. Case No. 413A/84 vide his order dated 19.8.93 has acquitted Bibhakar Mahto and furthermore with regard to a case so pending against the accused persons under section 364 I.P.C. relating to kidnapping and demand of Rs. 5,000/- which is said to be the motive behind for doing away the life of Devendra Mahto because of Devendra Mahto protesting, it is submitted that though the accused persons figuring here as appellants got convicted by the learned court below but the appellate court was pleased to acquit them and in this connection reference is made to the judgment so passed in Criminal Appeal No. 224 (S.J.)/85 dated 20th of March,1990. 7. Learned counsel for the appellants has also submitted that if there would have been blood mark on the site that would have been seized by the Investigating Officer which is not the case here and conviction, in the background of the facts and circumstances only on the basis of the Fardbeyan so lodged by the first informant claiming himself to be the eye witness, cannot be said to be safe as to convict and sentence the accused appellants when there are discrepancies in the evidence of the material prosecution witnesses so examined. In support of his contention that the means of identification was not so specifically detailed by the prosecution side and the contents of the Fardbeyan alone in such circumstance, would not have been the basis of conviction that too when no blood was so seized from the place of occurrence, the learned counsel for the appellants in support of his this contention has relied upon the reported case 2000 (2) P.L.J.R. 41 (Md. Yunus and ors. V/s. The State of Bihar) and particularly its paragraph 5 is referred. On behalf of the appellants two other reported cases are also referred and they are 1999 (3) P.L.J.R. 636 (Mundrika Chamar and ors. V/s. The State of Bihar)and 1999 (3) P.L.J.R. 849 (Nagina Koeri and ors. Yunus and ors. V/s. The State of Bihar) and particularly its paragraph 5 is referred. On behalf of the appellants two other reported cases are also referred and they are 1999 (3) P.L.J.R. 636 (Mundrika Chamar and ors. V/s. The State of Bihar)and 1999 (3) P.L.J.R. 849 (Nagina Koeri and ors. V/s. State of Bihar) and by relying upon these two reported cases it is submitted that unless the sole eye witness is not found to be the wholly trustworthy, his evidence should not have been relied upon and if the witnesses so examined are not particularly on the point of seeing inflicting injuries and the Investigating Officer also does not find any blood at the place of occurrence, that creates doubt and in such circumstance the conviction of the accused persons are held to be bad in law and they are rather so acquitted in the reported cases so cited. On the point so raised and other grounds so taken as good grounds in the memo of appeal so preferred lastly it is pointed out by learned counsel for the accusedappellants that the impugned judgment of conviction and sentence thus so passed require interference and in that light the same be rather set aside and the accused-appellants be acquitted. 8. Learned Addl. P.P. representing the State on the other hand has submitted that there is nothing wrong in the impugned judgment of conviction and sentence so passed which is under challenge. It is pointed out that in course of trial out of seven prosecution witnesses so examined P.Ws. 1, 2 and 5 are eye witnesses who have given the details with regard to their having the opportunity as to see the assault taking place and Devendra Mahto being shot at by the accused-appellant Pramod Mahto as a result of which Devendra Mahto succumbed to the injuries on his way to hospital. It is also submitted, by looking into the evidence of P.W.4 with that of the I.O. P.W. 7, it will transpire that their evidence finds full corroboration with the evidence of the eve witnesses so examined and in that light the learned court below was thus perfectly justified in convicting the accused-appellant Pramod Mahto under section 302 and accused Bechan Paswan under section 302 read with section 34 of the Indian Penal Code because of the murder so taking place in furtherance of common intention. 9. 9. As regards the issue so raised on behalf of the appellants that there was no means of identification and the alleged date of occurrence being dark night it was not possible for the witnesses as to identify the accused persons, by looking into the evidence it transpires that P.Ws. 1, 2 and 5 have given the details relating to the means of identification being the lantern burning in the shop and bulbs on the electric poles also burning throwing sufficient light in the lane as well. So the Investigating Officer (P.W. 7) being recalled has given the details with regard to his seeing the bulb burning on the street poles. That being the position nonmentioning of the means of identification in the Fardbeyan or in the statement of the witnesses so recorded under section 161 Cr. P.C. cannot be said to be fatal to the prosecution case when the witnesses in course of trial have thrown sufficient light on this issue and while deciding such issue even the Apex Court in a case reported in A.I.R. 1981 S.C. 1217 (Shakti Patra and anr. V/s. State of West Bengal) has also taken this view being followed by our Division Bench decision in a case reported in 1996 (1) P.L.J.R. 91 (Oaroga Yadav and anr. V/s. State of Bihar Story of occurrence is given at the earliest opportunity in the Fardbeyan without as expected much time given for embelishment or fabrication and the contents of the Fardbeyan fully supports the prosecution version with regard to accused appellant Pramod Mahto intentionally causing the death of Devendra Mahto, son of the first informant. It is also not a case that blood stained marks were not found at the place of occurrence by the Investigating Officer which will be apparent by going through the evidence of P.W. 7 but as stated by the Investigating Officer it was not in such a position to be seized. All the reported cases so cited on behalf of the appellant. All the reported cases so cited on behalf of the appellant. in our considered opinion, on the facts do not tally with the present case under which the murder has taken place and it is not the case here that the doctor was not examined, blood stained mark at place of occurrence was not found, there was sole eye witness and the means of identification was not detailed and that being the position the reported case so cited on behalf of the appellants are of no avail to them which, on facts and circumstance of the present case, are quite distinguishable. 10. After hearing both sides lawyers, evidence available on record, oral and documentary, are carefully looked into. Admittedly as also coming from the mouth of P.W.1 in paragraph 4 in course of trial the first informant of this case i.e. Kishori Mahto died, that being the position, under the provision of section 32 (1) of the Evidence Act, his statement so recorded being the Fardbeyan which was so marked as Ext. 1 can very well be used and by looking into the contents of the Fardbeyan it transpires that Kishori Mahto has given a clear picture with regard to the manner of occurrence taking place and he has detailed with regard to the accused persons surrounding his son Devendra Mahto and accused-appellant Pramod Mahto firing at with his pistol hitting the chest of Devendra Mahto as a result of which he succumbed to the injuries. By looking into the post mortem report it further transpires that wound so found on the chest of the deceased as opined by the Medical Officer said to have been caused by fire arms and there was one entry wound and another exit wound. The Medical Officer has also opined that the wound in ordinary course was sufficient as to cause the death which was so fired to him. It is also submitted that P.W. 1 Munni Paswan who is said to be one of the customers purchasing potatoes in the shop of Mansoor Alam can well be said to be the competent eye witness and he has also given details with regard to the manner of assault and claimed himself to be the eye witness to the scene when Devendra Mahto, since deceased, was shot at. As regards P.Ws. As regards P.Ws. 2 and 5 they claimed that when they were returning after attending the call of nature and were in the lane by the side of the said shop, they had an opportunity also to see the occurrence. Other eye witnesses to the scene of assault, it further transpires, are specific in saying before the court giving the means of identification as the electric bulbs so burning on the electric poles. In the shop in question source of light was lantern burning in the shop of Mansoor Alam where the informants son Devendra Mahto had gone to purchase tobacco and where at that very moment P.W. 1 was also available as one of the customers purchasing potatoes having an opportunity to see the occurrence. In our considered opinion, in the background of the facts and circumstances, thus the learned court below has rightly held with regard to the accused- appellant Pramod Mahto firing as a result of which Devendra Mahto, son of the first informant succumbed to the injury and thus the charge so framed against the accused appellant Pramod Mahto with regard to his intentionally causing the death of Devendra Mahto has been established up to the hilt beyond all reasonable doubts by the prosecution in course of trial and the judgment of conviction of Pramod Mahto under section 302 I.P.C. thus does not require any interference. After hearing on the point of sentence it further transpires that he has been sentenced as to undergo rigorous imprisonment for life. The learned Addl. P.P. on 16.8.86 had filed a petition for non-examination of the witnesses cited in the chargesheet namely Prabhakar Mahto, Babulal and Mansoor Alam because of their being gained over. Regarding Ganga Devi, wife of the first informant, it has been stated in the petition that because of her mental condition she is not in a position to give evidence and furthermore one of the witnesses Parmeshwar Sharma was said to have left the village and found traceless for so many years. Regarding Ganga Devi, wife of the first informant, it has been stated in the petition that because of her mental condition she is not in a position to give evidence and furthermore one of the witnesses Parmeshwar Sharma was said to have left the village and found traceless for so many years. It will also be pertinent to note that as regards the acquittal of one Bibhakar Mahto by the learned Chief Judicial Magistrate, though he was also an accused in this case and being tried by the Chief Judicial Magistrate, he being minor, it will absolutely have no effect to the judgment under challenge because it has to be decided by the evidence available on record in connection with Sessions Trial No. 178/85 only. 11. As regards conviction in another case under section 364 I.P.C. the case was registered against the present accused appellants for kidnapping and demand of ransom amount of Rs. 5,000/-, though they were acquitted of the charge but the same will not be of any avail to the appellants because at the time when the case was lodged there was allegation against them of demand of ransom amount which was the cause of annoyance of Devendra Mahto and being the law abiding citizen he protested the same which resulted into his death. The act so committed by the accused- appellant Pramod Mahto on 17.5.84 cannot, on any count, be justified to be lawful in the background on the evidence so collected in course of trial and the prosecution has succeeded in establishing his guilt and there is nothing wrong in that. We have rather minutely discussed the evidence available on record as also indicated above with regard to Pramod Mahto, one of the accused-appellants being rightly convicted under section 302 I.P.C. and sentenced to undergo rigorous imprisonment for life. Thus the conviction of Pramod Mahto under section 302 I.P.C. and sentence so imposed thus stand affirmed. In that background accused appellant Bechan Paswan was so convicted under section 302/34 I.P.C. and also sentenced to undergo rigorous imprisonment for life. In this connection it was needless to say that it was incumbent on the part of the prosecution to establish that it was in furtherance of common intention of all that such act was committed for which each person so being found at the time of occurrence would be liable equally for the same. In this connection it was needless to say that it was incumbent on the part of the prosecution to establish that it was in furtherance of common intention of all that such act was committed for which each person so being found at the time of occurrence would be liable equally for the same. It is also to be kept in mind that before convicting a person under section 302/34 I.P.C. it has also to be seen that there was existence of pre-arranged plan and they acted with common concert which is to be proved by the conduct of the accused-persons and by producing incriminating evidence because in such case essence of the liability is the existence of common intention. In the background of this set principle of criminal jurisprudence, let us now see as to what evidence is collected against the accused-appellant Bechan Paswan as to hold him as accused coming under the purview of section 302 read with section 34 I.P.C. By looking into the Fardbeyan it transpires that no where the witness Kishori Mahto has uttered a single word with regard to their having common intention as to shot at Devendra Mahto, rather they have depicted that the accused persons surrounded Devendra Mahto and accused-appellant Pramod Mahto firing at him with his pistol. That being the position, it cannot be said by the plain reading of the contents of the Fardbeyan as to conclude that there was any pre-arranged plan and there was meeting of mind and they acted with common concert and in furtherance of common intention. True it is that in course of trial out of three prosecution witnesses so examined claiming themselves to be the eye witnesses, two of them i.e. Munni Paswan and Mahabir Mahto have come forward to say that prior to the firing taking place accused persons had also spoken with regard to Devendra Mahto be done to death because of his objecting the demand of the alleged ransom amount of such kidnapping, but as far as Chedi Modi (P.W. 5) is concerned, he is silent on this point. Thus it would be unsafe to hold that the act was so committed by the accused-appellant Bechan Paswan in furtherance of common intention. Thus it would be unsafe to hold that the act was so committed by the accused-appellant Bechan Paswan in furtherance of common intention. Thus the conviction and sentence so passed against the accused-appellant Bechan Paswan being convicted under section 302/34 I.P.C. and sentenced to undergo rigorous imprisonment for life stand set aside and since he deserved acquittal, taking that view he thus hereby stands acquitted. 12. In the result, as far as Criminal Appeal No. 246/87 is concerned, it has got no leg to stand. Since there is no merit in this Appeal, judgment of conviction and sentence so passed against the accused-appellant Pramod Mahto stands affirmed and this Criminal Appeal is so dismissed. The accused-appellant Pramod Mahto, it transpires, is on bail. His bail bond stands hereby cancelled and is directed to surrender forthwith as to meet the sentence. 13. As far as Criminal Appeal No. 211 of 1987 is concerned in which the sole accused-appellnt as detailed in the background and the view so taken by us, it is allowed. Judgment of conviction and sentence so passed against Bechan Paswan convicting him under section 302 read with section 34 I.P.C. and being sentenced to undergo rigorous imprisonment for life stand set aside. He is being acquitted and discharged from the liabilities of his bail bonds. 14. Both the Criminal Appeals are thus accordingly disposed of.