Judgment R.N.Prasad, J. 1. Both the appeals arise out of judgment and order dated 21-9-1993 passed by 1st Addl. Sessions Judge. Nawada in S.T., No. 14/92/100/91, Md. Kasim, appellant in Cr. A. No. 415/93 convicted for the offence under Sec. 302/109. IPC. died during pendency of the appeal and as such his appeal stood abated. 2. Appellants in Cr. A. No. 510/ 93 have been convicted for the offence under Sec. 302. IPC and sentenced to undergo imprisonment for life. They have further been convicted for the offence under Sec. 27 of the Arms Act and sentenced to undergo rigorous imprisonment for five years. 3. The prosecution case as has been mentioned in the fardbeyan is that one Hafiz Haidar gave his fardbeyan on 9-7-1990 at about 11 a.m. that he was at his house. At about 8.45 a.m. his uncle Sakir Mian came and disclosed that Abdul Rahman and Nazim Mian etc. had tied the buffalo of Mokhtar Mian at their house on the ground that buffalo had damaged the paddy seedlings. They were demanding Rs. 100.00 for release of the buffalo. He Sakir Mian, Md. Matin, Asgar Mian. Farid Mian went to the house of Md. Kasim and found his father Gulam Rasool, his younger brother Maqsood Alam, Abdul Rahman, Nazim Mian, Md. Shoeb. Kazim Mian. Abdul Kalam, Abdul Salam and Md. Kasim present there-from before. There was altercation between them. Md. Kasim ordered to assault on which the afore said persons went to their house and Abdul Rahman with a double barrel gun. Md. Kazim with a country made pistol. Md. Shoeb, Nazim Mian, Abdul Kalam with Lathi and Abdul Salam with Saif came running. Abdul Rahman fired causing injury on the chest of his father Goolam Rasool. He fell down off the ground. Md. Kazim fired from country made pistol causing injury to his brother Maqsood Alam on the chest. Abdul Rahman also sustained injury due to which his gun fell down on the ground. The villagers came and they ran away. He took the gun and thereafter the injured were taken to Nawada Sadar Hospital on a tractor. There the Doctor declared his father Goolam Rasool dead, and after giving first aid to his brother Maqsood Alam the Doctor advised to take him to Patna for treatment. The gun of Abdul Rahman is at his house. 4. He took the gun and thereafter the injured were taken to Nawada Sadar Hospital on a tractor. There the Doctor declared his father Goolam Rasool dead, and after giving first aid to his brother Maqsood Alam the Doctor advised to take him to Patna for treatment. The gun of Abdul Rahman is at his house. 4. On the aforesaid fardbeyan a formal First Information Report was drawn, investigation was taken up and on completion of investigation chargesheet was submitted. On receipt of charge-sheet in the Court cognizance was taken and the case was committed to the Court of Sessions for trial. The trial Court convicted the appellants as indicated above. 5. The defence of the appellants was that they were innocent and had falsely been implicated in the case to save their skin from the counter case lodged by Abdul Rahman. First Information Report of the said case has been brought on the record as Ext. A where-form it appears that the buffalo of Mokhtar Mian had damaged the paddy seedlings and as such the buffalo was tied at the house of Kasim. The prosecution party including Goolam Rasool. Maqsood Alam and others came variously armed and started abusing. -His brother-in-law Md. Kasim told that they had taken Rs. 100.00 for release of his shegoat and as such he would take the buffalo to the pond. Goolam Rasool ordered to assault and as such his brother-in-law entered the house and closed the door. He protested on which Goolam Rasool ordered to assault him and he gave a garasa blow on his head, Ahmad Hussain gave Saif blow. Goolam Rabbani gave lathi blow due to which he sustained injury and fell down. When he fell down Mokhtar Mian and Maqsood Alam assaulted with lathi. Haidar Mian. Goolam Rasool entered his house and tried to take away his licensed gun. Haidar Mian caught the gun on the butt side and he caught the gun on barrel side and tried to save the gun due to which there is a firing and they took away the gun. He became unconscious and he was taken to Warsaliganj Police Station. 6. The prosecution in support of its case examined 12 witnesses out of whom PWs 1, 2, 3, 4, 5, and 6 claimed to be eye-witnesses to the occurrence. PW 9 is the informant and he also claimed to be eyewitness to the occurrence. He became unconscious and he was taken to Warsaliganj Police Station. 6. The prosecution in support of its case examined 12 witnesses out of whom PWs 1, 2, 3, 4, 5, and 6 claimed to be eye-witnesses to the occurrence. PW 9 is the informant and he also claimed to be eyewitness to the occurrence. PW 10 has been tendered PW 11 is witness to the seizure of blood. PW 12 is the Investigating Officer. PW 7 is Doctor who held postmortem over the dead body of Maqsood Alarh and PW 8 is another Doctor who held postmortem over the dead body of Goolam Rasool. The defence has also examined one witness i.e. DW 1. He is ASI of Nawada Police Station who recorded the fardbeyan. Ext. C of Saghiruddin. PW 3, on 9-7-1990 in Warsaliganj Hospital at 12. O Clock. 7. In the incident two persons namely, Goolam Rasool and his son Maqsood Alam were killed. Appellant Abdul Rahman also sustained injury. There is no dispute with regard to death of Goolam Rasool and Maqsood Alam and injury on appellant Abdul Rahman. Dispute is with regard to assault by the appellants as alleged by the prosecution. PW 9 is the informant. On his fardbeyan. Ext. 4, formal First Information Report. Ext. 5, was drawn. Counter case was lodged by appellant Abdul Rahman. Prosecution case is that Abdul Rahman fired causing death of Goolam Rasool and Md. Kazim fired causing death of Maqsood Alam. In the counter case lodged by Abdul Rahman there is no mention as to how Goolam Rasool and Maqsood Alam died when the time of occurrence and place of occurrence are the same. Moreover, there is nothing on the record as to whether even charge-sheet was submitted in the said counter case or not. Obviously, under the circumstances the plea of counter case taken by the defence has no much importance. 8. From the material on record it is evident that PWs 1, 4 and 9 are sons of deceased Goolam Rasool. PW 3 is brother of Goolam Rasool, the deceased and PW 6 is grand-son of Goolam Rasool, the deceased. PWs. 2 and 5 are relative of Goolam Rasool, the deceased and PW 10 is wife of Goolam Rasool, the deceased. From the material on record it is evident that PWs 1, 4 and 9 are sons of deceased Goolam Rasool. PW 3 is brother of Goolam Rasool, the deceased and PW 6 is grand-son of Goolam Rasool, the deceased. PWs. 2 and 5 are relative of Goolam Rasool, the deceased and PW 10 is wife of Goolam Rasool, the deceased. Learned counsel for the defence in the circumstances pointed out that eyewitnesses are relatives of deceased informant and are interested witnesses and as such their evidence must be discarded. The rule of law in the circumstances is that evidence of such witnesses is not to be discarded outright rather is to be scrutinised with care and caution. Keeping in mind the aforesaid well established rule of law proceed to examine the evidence of Witness with care and caution. 9. PW 9 is the informant and is son of deceased Goolam Rasool. His evidence is that at about 8.45 am. Md Shakir Mian, PW 3, came and disclosed that Md. Kasim. Abdul Rahman and Md. Kazim were keeping the buffalo of Md. Mokhtar, PW 4, at their house. They were demanding Rs. 100.00 for release of the buffalo. He along with others went there and found that his father, his brother Maqsood Alam and others were requesting for release of the buffalo. There was an altercation between them on which Md. Kasim ordered to kill. Appellant Abdul Rahman. Kazim. Nazim. Shoeb Kalam and Salam went to their house. Abdul Rahman with double barrel gun. Md. Kazim with country made pistol. Nazim, Shoeb and Kalam with lathi and Salam With Saif came. Abdul Rahman fired causing injury to his father Goolam Rasool and Md. Kazim fired pistol causing injury to his brother Maqsood Alam. They fell down. In the meantime the villagers came and pelted stones causing injury to Abdul Rahman. The gun fell down from his hand. He took the gun. The injured were taken to the hospital but on way his father died and Maqsood was sent to Patna but he died on way to the hospital. His fardbeyan was recorded and he produced the gun before the police. Production list was prepared on which he put his signature. In cross-examination the witness gave vivid picture of the place of occurrence. Before coming to the place of occurrence he had informed the constable of the Outpost. His fardbeyan was recorded and he produced the gun before the police. Production list was prepared on which he put his signature. In cross-examination the witness gave vivid picture of the place of occurrence. Before coming to the place of occurrence he had informed the constable of the Outpost. After firing, stones were pelted. He admitted that counter case was lodged against them however, he did not give information to the Police Station rather he had gone to the Hospital. He denied the suggestion that he had entered the house of Abdul Rahman and took the gun. The witness had also gone to the place of occurrence. When he had gone to the Out-post only one constable was there. He denied the suggestion that firing was made from both sides. Inspite of cross-examination at length nothing cogent could be elicited to doubt the evidence of the witness. 10. PWs 1, 2, 3, 4, 5 and 6 are eye-witnesses to the occurrence. They claimed that they were at the place of occurrence. Their evidence is consistent on material point. They in their evidence have stated that the Buffalo of Md. Mokhtar was kept at the house of Md. Kasim. The deceased and Md. Mokhtar were requesting him to release the buffalo on which there was an altercation between them. On the order of Md. Kasim the appellants and others returned to their houses. Appellant Abdul Rahman with double barrel gun. Md. Kazim with country made pistol and others with lathi and Saif came. Abdul Rahman fired causing injury to Goolam Rasool and Md. Kazim fired country made pistol, causing injury to Maqsood Alam. They fell down. The villagers came and pelted stones causing injury to Abdul Rahman due to which the gun fell down from the hand of Abdul Rahman. The informant took the gun and produced the same before the police. The injured were taken to the hospital. Goolam Rasool was declared dead in the hospital. Maqsood Alam was referred to Patna but he died on the way. They were cross-examined at length but they stood the test of cross-examination and nothing cogent could be elided to doubt their evidence. 11. PW 7 is the Doctor who held postmortem over the dead body of Maqsood Alam. He found multiple pellet injuries over the left interior part of lower chest left side of abdomen. Wound of margin was inverted. They were cross-examined at length but they stood the test of cross-examination and nothing cogent could be elided to doubt their evidence. 11. PW 7 is the Doctor who held postmortem over the dead body of Maqsood Alam. He found multiple pellet injuries over the left interior part of lower chest left side of abdomen. Wound of margin was inverted. On dissection pillets were taken out from the injury. Abdominal cavity was full with blood clots. Peritonium, small intestine and spleen were found perforated. Injuries were ante mortem. Call se of death was shock and haemorrhage due to the injuries. Injuries had been caused by country made pistol. Time elapsed since death was six hours. He admitted the injured at 9.35 a.m. and referred him to Patna Medical College and Hospital. 12. PW 8 is another doctor who held postmortem over the dead body of Goolam Rasool at about 2 p.m. He found multiple small, lacerated wound of 3 mm., each with charred and inverted margin 8 in number over right lateral surface of chest wall and abrasion above the right elbow. On dissection he recovered pellets. The cause of death was shock and haemorrhage due to the injuries found on the person of the deceased specially injury on the right lung. Injuries were caused by fire-arm may be gun. Time elapsed since death was 6 to 36 hours Injuries were ante mortem in nature and were sufficient to cause death. 13. PW 12 is the Investigating Officer. His evidence is that he recorded the fardbeyan of PW 9 on which formal First Information Report was drawn. The gun was produced by the informant. In the barrel of the gun there was empty cartridge. He inspected the place of occurrence and prepared sketch map. There was railing on the roof of the house of Md. Kasim and gun was fired from there. He seized blood stained earth in presence of the witnesses and prepared seizure list. He produced gun and seized blood, which were marked as material; exhibits. Statement of witnesses, were recorded. They disclosed the name of the accused persons. On completion of investigation he submitted charge-sheet. In cross-examination the witness stated that Kalimuddin had stated before him that firing was made from the roof of the house of Md. Kasim. Further the witness stated that he recorded the fardbeyan of Abdul Rahman at the Police Station. Statement of witnesses, were recorded. They disclosed the name of the accused persons. On completion of investigation he submitted charge-sheet. In cross-examination the witness stated that Kalimuddin had stated before him that firing was made from the roof of the house of Md. Kasim. Further the witness stated that he recorded the fardbeyan of Abdul Rahman at the Police Station. However, he did not say that on the First Information Report of Abdul Rahman chargesheet was submitted. 14. From the discussion made above it is evident that though witnesses are related to deceased but their evidence is trustworthy and they supported the prosecution case on all the material point. The evidence of the informant is corroborated by other eyewitnesses on all material points. The oral evidence of eye-witnesses is also corroborated by the evidence of Doctors PWs 7 and 8 who held postmortem over the dead body. The evidence of the Investigating Officer, PW 12 also supports the prosecution case with respect to place of occurrence. He found blood at the place of occurrence, which was seized in presence of witness. Therefore, it can safely be said that prosecution has succeeded in establishing its case beyond all reasonable doubts. 15. Learned counsel for appellant Md. Kazim, however, pointed out the fardbeyan of PW 3, Ext. C. recorded by DW 1 on 9-7-1990 at 12 Oclock on the date of occurrence to show that in the said Ext. C there was no allegation that Md. Kazim had fired. It was pointed out that the said fardbeyan was not recorded in course of investigation and as such it was not hit by Sec. 162 of the Code of Criminal Procedure, Appellant Md. Kazim, therefore, deserves to be acquitted. In support of his submission he relied upon a decision in the case of Suba Chaudhary and others V/s. The King, wherein it has been held that as the statement of accused had, been recorded by the Sub-Inspector before the investigation was started on the prior first information report it was not hit by. Sec. 162 of the Code of Criminal Procedure and, therefore, first information report instituted on the basis of statement was admissible in evidence. Sec. 162 of the Code of Criminal Procedure and, therefore, first information report instituted on the basis of statement was admissible in evidence. In the said decision reference has also been made of a decision of the Division Bench of Allahabad High Court in the case of Emperor V/s. Aftab Mohammad Khan, wherein it has been held that the words, in the course of investigation as mentioned in Section. 162 of the Code of Criminal Procedure import that the statement must be made as a step in a pending investigation. These words do not refer merely to that period of time, which elapses between the beginning and the end of the investigation. 16. The law laid down in the aforesaid case is not in dispute. In the instant case the, First Information Report was lodged on the fardbeyan of Hafiz Haidar. PW 9, recorded at 11 a.m. Ext. C. fardbeyan of PW 3 was recorded by DW 1, an Assistant Sub-Inspector of Police at 12 Oclock i.e. different police officer, but on the aforesaid fardbeyan no First Information Report was registered. Ext. C. fardbeyan of PW 3 even if is taken that it is not hit by Sec. 162 of the Code of Criminal Procedure the same cannot be treated as substantive piece of evidence. In the case of Ram Kumar Pande V/s. The State of Madhya Pradesh, the Apex Court held that "First Information Report is a previous statement which can, strictly speaking be only used to corroborate or contradict the maker of it. But omissions of important facts affecting the probabilities of the case are relevant under Sec. 11 of the, Evidence Act in judging the veracity of the prosecution case. Therefore, in view of the law laid down Ext. C can be used only to corroborate or contradict the maker of it. It is true that in Ext. C the name of appellant Md. Kazim is not mentioned as the person who killed Maqsood Alam which is an omission of important fact and is relevant to Judge the veracity of the prosecution case but in view of the consistent evidence of the prosecution witnesses that the appellant Md. Kazim fired causing injury to Maqsood Alam who subsequently died, as discussed above I am of the view that omission as has been indicated above would not affect the prosecution case. 17. Kazim fired causing injury to Maqsood Alam who subsequently died, as discussed above I am of the view that omission as has been indicated above would not affect the prosecution case. 17. The prosecution case was initiated on the fardbeyan of PW 9 recorded on the date of occurrence i.e. 9.07.1990 at 11 a.m. i.e. two hours after the occurrence in which specific allegation has been made against Md. Kazim that he fired from country made pistol causing injury to Maqsood Alam who died subsequently. The evidence of the eye-witnesses is consistent on the point that appellant Md. Kazim fired causing injury to Maqsood Alam. PW 3 no doubt in Ext. C has not named Md. Kazim as assailant of Maqsood Alam but the said fact alone is not sufficient to hold appellant Md. Kazim not guilty of the offence as the evidence of other witnesses i.e.. PWs 1, 2, 4, 5, 6 and 9 is consistent to the aforesaid effect. Moreover, no question to the aforesaid effect was put to the Investigating Officer, PW 12. The omission no doubt is relevant under Sec. 11 of the Evidence Act but in view of the consistent evidence of other eye-witnesses as indicated above I find no substance in submission of learned counsel for the appellant. 18. Learned, counsel for appellant Abdul Rahman, however, pointed out with respect to the minor discrepancy in the evidence, such as place of firing, pelting of stones by the villagers but such discrepancy is not material in view of the fact that eye-witnesses have categorically supported the prosecution case on material points Le Abdul Rahman fired causing injury on the person of Goolam Rasool and Md. Kazim fired causing injury to Maqsood Alam. The villagers pelted stones causing injury to Abdul Rahman and as such submission of learned counsel for the appellants has no substance. 19. Learned counsel further pointed out that it was accidental firing in which Goolam Rasool and Maqsood Alam died. The submission, in fact, has no substance as in the counter-case no such averment has been made nor such question was put to any of the prosecution witnesses. The submission must be based on records. I find that the submission of learned counsel for the appellants is not based on any material. 20. Thus, on consideration as discussed above. I find no merit in the appeal. Accordingly, it is dismissed.