Judgment ANIL KUMAR SINHA, J. 1. This appeal has been directed against the judgment of conviction and sentence recorded by 1st Addl. Sessions Judge, Buxar in Sessions Trial No. 495 of 1989, whereby and whereunder the appellants have been convicted under Sections 302/ 149 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for life. 2. The prosecution case as per the FIR (Ext. 3), in short, is that on 22.4.198 at about 5.00 p.m. the informant and his uncle were washing their hands after taking refreshment at the door of their house when accused Sheo Narayan Dubey (since dead), Awadhesh Dubey and Bhim Dubey along with four unknown persons all being armed with rifles came and accused Sheo Narayan Dubey fired upon the informants uncle, namely, Indrajit Pandey who succumbed to the injury. The informant ran inside the house to save his life but he was chased by accused Sheo Narayan Dubey, Awadhesh Dubey and Bhim Dubey along with two unknown persons who entered into the courtyard and appellant Awadesh Dubey fired upon the informants mother, namely, Prabhawati Devi who also succumbed to the injury in the courtyard itself. The informant ran towards the roof of the house to save his life but the assailants chased him and went to the roof so the informant came down through stair case and was running but in the meantime one of the assailants fired from his rifle causing injury on right elbow and hand. The informant managed to conceal himself in the house of one Jagu Kamkar and when the assailants fled away the informant came out from the house of Jagu Kamkar and found that his father Sahdeo Pandey, uncle Indrajit Pandey and mother Prabhawati Devi were lying dead. The villagers brought the dead body of the informants servant Bansh Narayan Pandey and the informant learnt from his cousin brother Kaulesh Dubey that accused Mira Devi and pointed towards Bansh Narayan Pandey to the accused that he was the informants servant and so the accused- persons shot him dead. It is further alleged that accused-persons took away the gun of the informants father. The motive as alleged in the FIR is that the father of the informant had deposed against the accused-persons in some other case two months before the occurrence and accused- persons had held threats that the entire family will be eliminated. It is further alleged that accused-persons took away the gun of the informants father. The motive as alleged in the FIR is that the father of the informant had deposed against the accused-persons in some other case two months before the occurrence and accused- persons had held threats that the entire family will be eliminated. In the alleged occurrence Gita Kumari was also murdered and her dead body was recovered later on. 3. On the basis of the fardbeyan of the informant a case under Sections 449, 302, 307, 324, 326, 380/34 and 120-B of the IPC read with Section 27 of the Arms Act was registered and after completing investigation the police submitted charge-sheet in the case against the appellants and six others and 10 persons were shown in the absconder column under Sections 302, 307, 324, 326 and 382 of the IPC. The cognizance was taken by the Addl. Chief Judl. Magistrate, Buxar and the case was committed to the Court of Sessions. Altogether 9 accused faced the trial out of which 7 were acquitted of the respective charges framed against them. Charges were framed against the appellants under Sections 302 and 149 of the IPC as also under Sections 307/149 of the IPC but the trial Court acquitted the appellants of the charges under Sections 307/149 of the IPC. 4. The defence version as would appear from the trend of the cross-examination and the suggestions given to the prosecution witnesses is that accused-persons are innocent and have been falsely implicated in the case due to enmity and litigation. The defence has also examined three witnesses in the case. DW 1 Pawan Kumar Dubey has proved the certificate granted by Sarpanch Marked "Y" for identification and certificate granted by Mukhiya of the Gram Panchayat marked "Y/l" for identification. DW 2 Hareram Prasad has been examined to say that he had filed an application for obtaining the certified copy of the information petition but he could not get the copy and the head-clerk reported that the original records has been burnt. He has proved the report of the head- clerk (Ext. A). DW 3 Shambhu Dayal Singh has proved the information petition filed by Prem Nath Pandey (Ext. B). He has proved the report of the head- clerk (Ext. A). DW 3 Shambhu Dayal Singh has proved the information petition filed by Prem Nath Pandey (Ext. B). In his cross-examination he admitted that the original information petition is not before him and the original information petition was of the year 1947 and unauthorised man of SDOs office had given him the information petition. 5. In order to prove the charges the prosecution has examined altogether 10 witnesses out of which PW 1 Rama Shanker Tiwary is formal witness who has proved his signature (Ext. 1) on the fardbeyan. PW 2 Kaushalesh Pandey has been declared hostile by the prosecution. He has stated that when he reached at his house after the alleged occurrence he saw that his father Indrajit Pandey, uncle Sahdeo Pandey, aunt Prabhawati Devi, sister Gita and servant Bansh Narayan Pandey were lying dead and his brother Krishna Nand Pandey was in injured condition. PW 4 Somaro Devi is hearsay witness who only heard about the occurrence and has not whispered against the accused. PW 9 Dr. P.N. Rai conducted the post-mortem examination on the dead bodies of the deceased and has proved the postmortem reports (Exts. 2 to 2/4). According to him death of all the five persons were caused due to shock and haemorrhage caused by fire arm injuries, the details of which has been mentioned in his report. PW 10 Dinesh Pd. Shukla is the I.O. of this case and the remaining witnesses viz. PW 3 Krishna Nandan Pandey, PW 5 Manoj Pandey, PW 6 Sangita Devi, PW 7 Bimla Devi and PW 8 Sita Sundar Devi who are all inmates of the house and closely related to the informant have claimed to be eye-witnesses to the alleged occurrence. 6. PW 6 Sangita Devi has stated about the occurrence and has deposed that when the culprits went away she found that her father-in- law, mother-in-law, uncle-in-law and servant Bansh Narayan Pandey were lying dead and the dead body of her nanad Gita Devi was recovered on the following day at 12.00 noon which was kept concealled in a quilt. PW 6 has identified the appellants in the dock by face but her evidence on the point of identification has been disbelieved by the learned trial Court. PW 6 has identified the appellants in the dock by face but her evidence on the point of identification has been disbelieved by the learned trial Court. It appears that the trial Court rightly disbelieved her evidence on the point of identification as she herself 3 admitted in para 15 of her evidence that she herself had not identified any culprit and she also stated in her ex- amination-in- chief that her nanad Sita Sundar Devi disclosed to her that accused Awadesh Dubey and unknown persons had fired upon her father-in-law. This witness came to her sasural only a month ago after second marriage. So she was not expected also to know the names of the appellants nor she had any occasion to recognise them from before. She also stated that her gotni had disclosed to her the names of Bhim Dubey, Sheo Narayan Dubey and Awadesh Dubey. The attention of the I.O. was also drawn in this regard and the I.O. vide para 9 of his evidence has stated that the witness Sangita Devi had not stated anything about the identification of the accused persons. That apart, according to PW 6 her gotni namely, Bimla Devi (PW 7) had disclosed to her the names of the appellants and one Sheo Narayan Dubey but PW 7 has not made statement to the effect that she had disclosed the names of the appellants to PW 6. Therefore, the identification of the appellants by PW 6 in dock does not inspire confidence to be believed. Nevertheless, the PW 6 has given a detail version about the manner of occurrence and has stated that she closed herself in the room due to fear and the accused persons were forcing her to open the door and searching Nandji Pandey but when she did not open the door, they broke open the door by shillaut and snatched the ornaments which she was wearing. They also took away a sum of Rs. 1500/- after breaking the box and took her to roof and forced to request her father-in-law to hand over the gun but when her father-in-law did not agree all the four accused resorted to firing through the window and her father-in-law started to scream after being hit by shot. She has also stated that her father-in- law died and, thereafter, the culprits broke open the door of the room and took away the gun. She has also stated that her father-in- law died and, thereafter, the culprits broke open the door of the room and took away the gun. She learnt about the names of the appellants from her gotni and nanad Sita Sundra Devi. It would, therefore, appear that although the evidence of PW 6 on the point of identification of the appellants is not free from doubt but she appears to be a real witness to the alleged occurrence and on the point of occurrence she has been quite unshaken. 7. The next important witness is Bimla Devi (PW 7) who is also an eye-witness to the alleged occurrence. She deposed that after hearing the sound of four to five shots of gun and rifles she came in the courtyard where four to five culprits demanded the ornaments which she was wearing and she gave her ornaments, watch etc. to them. Thereafter, the culprits asked her to disclose the where about of her husband to which she replied in negative. PW 7 has stated that she identified appellant Awadhesh Dubey, Sheo Narayan Dubey and Bhim Dubey amongst the culprits. She has also deposed that when the assailants left the place she saw the dead body of her aunt Prabhawati Devi, uncle Sahdeo Pandey, father Indrajit Pandey and servant Bansh Narayan Pandey. She also identified the appellant Awadesh Dubey and Sheo Narayan Dubey in the dock. The statement of this witness was recorded by the police on the same night at 2.30 a.m. and she denied the defence suggestion that she had not named the appellants and Sheo Narayan Dubey as the culprits whom she had identified. She further stated in her cross-examination that the three accused whom she named were on enmical terms with her family and two months prior to the alleged occurrence the appellant Sheo Narayan Dubey had forebade her father-in-law Sahdeo Pandey not to depose in a case of dacoity and had given threats. But her father-in-law deposed in that case. She also stated that appellants and Sheo Narayan Dubey had threatened Sahdeo Pandey that his entire family will be killed if he deposes in the case. PW 7 has admitted that she never talked with the three accused whom she identified nor she ever visited their house and they never saw her face. But her father-in-law deposed in that case. She also stated that appellants and Sheo Narayan Dubey had threatened Sahdeo Pandey that his entire family will be killed if he deposes in the case. PW 7 has admitted that she never talked with the three accused whom she identified nor she ever visited their house and they never saw her face. She has maintained her statement by stating that she had named three accused, namely, Awadesh Dubey, Sheo Narayan Dubey and Bhim Dubey. It appears that PW 7 remained quite unshaken in her cross-examination. 8. PW 8 Sita Sundar Devi is another eye-witness to the occurrence who has categorically stated that after hearing the sound of firing when she came out of the house she saw that Krishna Nand Pandey is running towards the inner portion of the house and was being chased by Sheo Narayan Dubey (since dead) Awadesh Dubey and Bhim Dubey besides two unknown accused. She further stated that Awadesh Dubey fired from his rifle upon her aunt Prabhawati Devi and another unknown person also fired upon her aunt who fell down injured. Thereafter, all five persons went on the roof of the house in course of chasing Krishna Nand Pandey and in the meantime four to five more culprits came in the house. She has also stated that she found the bodies of all four persons lying dead when the assailants left the place of occurrence, she further stated that Krishna Nand Pandey (informant) and one Sita Ram Yadav had also sustained injuries and her sister Gita was also murdered. Her dead body was recovered on the following day. PW 8 has then stated that a day before the alleged occurrence Awadesh Dubey came to her house and asked for sweets by giving out that there will not be any difference between two families from now onwards. After sometimes, he had cleared the shrubs and bushes grown by the side of the house. She has also deposed that her uncle Sahdeo Pandey had given evidence against the accused-persons and due to that reason the accused persons committed the alleged occurrence. She has stated that the accused persons had not covered their faces and she had recognised them by seeing their faces. PW 8 has remained unshaken so far identification of the appellants and their participation in the alleged crime is concerned. She has stated that the accused persons had not covered their faces and she had recognised them by seeing their faces. PW 8 has remained unshaken so far identification of the appellants and their participation in the alleged crime is concerned. On careful scrutiny, I find that the defence has failed to elicit anything which may render her version unworthy of placing credence to. 9. PW 5 Manoj Pandey is another eye-witness who has deposed that while he was returning back from Khalihan he saw these appellants, Sheo Narayan Dubey and two unknown persons being armed with rifles who went to the Dalan of his house and Sheo Narayan Dubey fired with his rifle upon Indrajit Pandey and all of them entered into the house chasing Krishna Nand Pandey (informant). In the meantime, four unknown criminals came and fired upon him and so he fled away and concealed himself in the house of Indradeo Sah. He saw the dead bodies of four dead-persons when the accused fled away. He also stated that the dead body of Gita was recovered on the following day. This witness has also stated about the enmity and dispute of property going on between his family and accused-persons. PW 5 has also stated that a day before, the alleged occurrence Awadhesh Dubey had cleaned the bushes and had stated that all the differences are patched up. In para 6 this witness has stated that there was no dispute between his family and the family of the accused-persons but in para 8 of his cross-examination he has clearly stated that Prabhunath Pandey gave all his property to Bhagwat Dubey who is his phupha and if he would not have given his property to him, the property would have devolved upon his family. It is apparent that his family had grievance owning to the property given by Prabhunath Pandey to Bhagwat Dubey and there is sufficient evidence on record to show that dispute persists between two families for property. It is apparent that his family had grievance owning to the property given by Prabhunath Pandey to Bhagwat Dubey and there is sufficient evidence on record to show that dispute persists between two families for property. The statement of PW 5 was recorded in the same night at 2.00 a.m. From the evidence of this witness it appears that he saw Sheo Narayan Dubey firing upon his uncle Indrajit Pandey and since he fled away to save himself he could not see as to who fired upon other dead-persons but he has named the appellants Awadhesh and Bhim Dubey who were also armed with rifles along with Sheo Narayan Dubey and two unknown culprits. 10. PW 3 Krishna Nand Pandey is the informant of this case who has supported the prosecution story and has specifically stated that accused Sheo Narayan Dubey fired upon his uncle Indrajit Pandey who succumbed to the injury and when he fled inside the house, all the accused, including the appellants chased him and it was Awadesh Dubey who fired upon his mother Prabhawati Devi and she died then and there. He has further stated that unknown criminals fired upon him as a result of which he sustained injuries on his hand. PW 3 came back to his house after the assailants fled away and found that his father, uncle, mother and servant were lying dead. The dead body of Gita was recovered later on. PW 3 has also stated that the culprits took away the gun of his father. Thereafter, he was brought to the police station where he gave his statement. PW 3 also took part in the T.I. Parade and has identified accused Shanker Mahto who has been acquitted by the trial Court. In cross-examination PW 3 has admitted that he concealed himself in the house of one Jagu Kamkar which is also his case in the fardbeyan. There is no doubt that PW 3 has stated in para 10 that he became nervous after hearing the sound of indiscriminate firing and did not identify the assailants nor he can say that who was hit by whom but this statement cannot be taken in isolation while appreciating his evidence. In para 5 of his cross-examination PW 3 has specifically stated that he had identified Sheo Narayan Dubey, Awadesh Dubey and Bhim Dubey besides Shanker Mahto. He had not identified others. In para 5 of his cross-examination PW 3 has specifically stated that he had identified Sheo Narayan Dubey, Awadesh Dubey and Bhim Dubey besides Shanker Mahto. He had not identified others. As such, his statement in para 10 that he could not identify the accused persons refers to those accused whom he did not identify. His evidence on the point of alleged occurrence has otherwise remained intact and he has categorically stated that he saw Sheo Narayan Dubey, Awadesh Dubey, Bhim Dubey and four unknown criminals who came to his house being armed with rifles and it was Sheo Narayan Dubey who fired upon his uncle Indrajit Pandey and appellant Awadesh Dubey fired upon his mother. As such, in view of his definite and categorical statement the evidence of this witness on the point of identification of the appellants deserves to be relied upon and merely because lose statement has been given by him in different context cannot render his evidence unworthy of placing credence to. In the case of Siddique and others V/s. The state of U.P. reported in 1999 SCC (Cri) 569, it has been held by the Apex Court that "in appreciating the evidence of a witness a sentence in cross-examination cannot be taken in isolation, it has to be understood in the context in which it was spoken". 11. PW 10 Dinesh Prasad Shukla is the I.O. of this case who recorded the fardbeyan (Ext. 3) and seized the blood and empty cartridges from the place of occurrence. He also prepared the inquest reports of the dead bodies (Ext. 4 to 4/4). He also recovered a letter said to have been written by one Shanker Dayal Dubey from jail to his daughter Mira Devi (Ext. 5). It appears from the contents of this letter that some plan for committing offence was being made by the family but it is not clear what was the plan and against whom it was hatched up. The I.O. has proved the place of occurrence which according to him is double storeyed house/ Dalan of the informant. So the place of occurrence has been proved by the I.O. beyond all reasonable doubts. The I.O. has proved the place of occurrence which according to him is double storeyed house/ Dalan of the informant. So the place of occurrence has been proved by the I.O. beyond all reasonable doubts. It is significant to note that the alleged occurrence took place on 22.4.1988 at about 5.00 p.m. and the I.O. recorded the fardbeyan of the informant at Sikraul Dispensary at 10.00 p.m. and started investigation of the case and in the same night he recorded the statements of the eye-witnesses which I have found above. As such, it would appear that fardbeyan and the statements of the witnesses were recorded with promptitude and the investigation also commenced immediately which leaves no room of doubt on the impartial investigation conducted by the I.O. The I.O. has further deposed about the objective findings and has stated that he found the mark of firing on third piller and he also found blood near the place of occurrence. He also found that three iron rods of window of Sahdeo Pandey were bended and he also noticed a hole in the door of that room. The I.O. has described the place where he found the dead bodies, he has further stated that in course of the investigation he learnt from the records of 5th Addl. Sessions Judge, Arrah in Sessions Trial No. 379 of 86 that deceased Bansh Narayan Pandey and Sahdeo Pandey had deposed on 6.1.1988 and 27.1.1988 respectively. All the witnesses have unequivocally stated about the motive of the alleged occurrence that since Sahdeo Pandey had deposed against the family of the accused-appellants they took revenge by committing the alleged occurrence for which they held out threats in past. I, therefore, find that the evidence of the I.O. is consistant with the prosecution case. 12. The learned counsel appearing for the appellants submitted that not a single independent witness has supported the prosecution story and all the witnesses are family members of the informant. So in absence of corroboration by independent witnesses, the prosecution story cannot be relied upon. In reply, Mr. Lala Kailash Bihari Prasad, the learned counsel appearing for the State sub-mitted that the prosecution cannot be thrown out on this score alone if the Court finds that the evidence of the witnesses is trustworthy. So in absence of corroboration by independent witnesses, the prosecution story cannot be relied upon. In reply, Mr. Lala Kailash Bihari Prasad, the learned counsel appearing for the State sub-mitted that the prosecution cannot be thrown out on this score alone if the Court finds that the evidence of the witnesses is trustworthy. In support of his contention reliance has been placed in the case of Appabhai and another V/s. The State of Gujarat reported in AIR 1988 SC 696 : 1988 East Cr C 288 (SC), wherein it has been observed by the Apex Court that "it is no doubt true that the prosecution has not been able to produce any independent witness to the incident that took place at the bus stand. There must have been several of such witnesses. But the prosecution case cannot be thrown out or doubted on that ground alone. Experience reminds us that civilized people are generally insensitive when a crime is committed even in their presence. They withdraw both from the victim and the vigilante. They keep themselves away from the Court unless it is inevitable. They think that crime like civil dispute is between two individuals or parties and they should not involve themselves. This kind of apathy of the general public is indeed infortunate, but it is there everywhere whether in village life, towns or cities. One cannot ignore this handicap with which the investigating agency has to discharge its duties. The Court, therefore, instead of doubting the prosecution case for want of independent witness must consider the broad spectrum of the prosecution version and then search for the nugget of truth with due regard to probability, if any, suggested by the accused". 13. The learned counsel appearing for the State submitted that even though independent witnesses have not come forward to corroborate the prosecution version, the evidence of the eye-witnesses who have remained quite unshaken in their cross-examination and have fully supported the prosecution story in detail cannot be doubted and the evidence of the eye-witnesses have been corroborated by medical evidence of PW 9 Dr. P.N. Rai which justifies that fire arm injuries were found on the person of all the five deceased. The inquest reports (Exts. 4 to 4/5) are also consistant with the medical evidence of the doctor. P.N. Rai which justifies that fire arm injuries were found on the person of all the five deceased. The inquest reports (Exts. 4 to 4/5) are also consistant with the medical evidence of the doctor. Considering the submissions advanced by the learned counsel and relying on the decisions referred to above, I am also of the view that the evidence of the eye-witnesses which is consistant and unimpeachable cannot be doubted merely because the independent witnesses have not come forward to support the prosecution story. 14. The learned counsel for the appellants pointed out that witnesses have made statements to the effect that two shots were fired upon Prabhawati Devi but the doctor found a wound of entry and a wound of exit both communicating to each other. The evidence of the witnesses cannot be rejected on this score for the simple reason that the shot fired by the unknown accused might not have caused injury to Prabhawati Devi and the shot fired by appellant Awadesh Dubey proved fatal. On this score the evidence of witnesses is quite consistant that appellant Awadhesh Dubey fired upon Prabhawati Devi with his rifle. 15. It was lastly argued that in this case altogether nine accused faced the trial out of which seven were acquitted and according to the prosecution story there were 10 assailants in all. As such the appellants cannot be convicted with the aid of Section 149 of the IPC. I am also of the view that the conviction of the appellants cannot be sustained under Section 302/149 of the IPC but the evidence on record goes to show that the appellant Awadesh Dubey fired upon the informants aunt Prabhawati Devi who died on the spot. Almost all the witnesses have stated that the appellant Bhim Dubey had also accompanied Sheo Narayan Dubey and Awadhesh Dubey with rifle and chased the informant up to the roof. It is of course true that the appellant Bhim Dubey did not cause injury to any injured but the role played by him goes to show his intention that he was equally interested in the murder of the deceased-persons because of family feud between the two families, as also, because the deceased Sahdeo Pandey had given evidence in a case in which his family members were accused. Therefore, both the appellants appear to have shared common intention and considering their overt act they can be convicted under Sections 302/34 of the IPC. 16. On the basis of my above discussions and on careful consideration of all the facts and circumstances of the case, I am of the view that the prosecution has proved the charges against the appellants under Sections 302/34 of the IPC. Accordingly, the judgment and sentence passed by the Court below are upheld subject to modification that the conviction of the appellants is altered from Sections 302/149 to Section 302/34 of the IPC. 17. In the result, therefore, I do not find any merit in this appeal which is dismissed with modification as stated above. Appellant Awadhesh Dubey is in jail. The bail bond of appellant Bhim Dubey who is on bail is cancelled and he is directed to surrender before the Court below at once to serve out the sentence. The Court below shall take necessary steps in this regard. KRISHNA JHA, J. 18 I agree.