Judgment M.L.Visa, J. 1. This appeal is directed against the judgment dated 29.2.1996 and order dated 1.3.1993 passed by First Additional Sessions Judge, Munger in Sessions Case No. 90 of 1994 convicting and sentencing both the appellants to undergo rigorous imprisonment for life each under Section 302. Indian Penal Code and rigorous imprisonment for five years each under Section 27, Arms Act. Both the sentences have been ordered to run concurrently. 2. The case of the prosecution, as disclosed by fardbeyan (Exhibit-4) of informant Bhuneshwar Mandal (P.W. 2) recorded on 19.2.1993 at 9 a.m. in short, is that on 19.2.1993 at about 7.30 a.m., informant was sitting on the chair in the front portion of his house when his son Mukhiya Singh @ Badal (since deceased), for attending a meeting, left the house and he went to a betel shop of one Tarni Bind (not examined) situate on road in front of the house of the informant for taking betel and while he was standing at the shop, five persons, three from northern side and two from southern side, came there and surrounded him and fired shots on his head as a result of which he fell down. Informant saw that appellant Milton Yadav @ Bimal Kumar Yadav fired first shot hitting the head of his son and when his son fell down, appellant Manoj Kumar fired second shot. The informant alleged that both the appellants and three unknown persons committed murder of his son and the occurrence was witnessed by Vijay Kumar Singh (not examined), Narayan Mistri (P.W. 3), Mahesh Kumar Mandal (P.W. 8), Gangadhar Mandal (P.W. 4), Kishori Prasad Singh (P.W.7) and Kailash Mandal (not examined). After committing the murder of son of informant, both the appellants alongwith their companions fled away towards western forest through village Jalshakra which is situate towards west of the village of informant and they were followed by the villagers but could not be apprehended. After committing the murder of son of informant, both the appellants alongwith their companions fled away towards western forest through village Jalshakra which is situate towards west of the village of informant and they were followed by the villagers but could not be apprehended. About the motive of occurrence, the informant stated in the fardbeyan that in the year, 1989, a dispute on a matter of contract had taken place and his deceased son and villagers had opposed both the appellants and in the year, 1989 also, an attack was made on the deceased and both the appellants had given threatening of committing murder of deceased and for these differences and enmity, both the appellants alongwith some unknown criminals committed the murder of son of informant. 3. On the basis of fardbeyan of informant, a formal first information report (Exhibit-5) under Section 302, Indian Penal Code and Section 27, Arms Act was drawn up against both the appellants and three unknown persons. Md. Shamsher Alam (P.W. 9), who was the then officer-in-charge of Kharagpur police station, took up investigation of the case. He visited the place of occurrence, prepared inquest report of the dead body of deceased and sent it to Sadar Hospital, Munger for post mortem examination and alongwith police party went in the direction in which the appellants and their companions had fled away and seized a white trousers and also deployed sniffer dogs and recorded the statements of witnesses and after completing investigation, submitted chargesheet against the appellants. Charges under Section 302, Indian Penal Code and Section 27, Arms Act were framed against the appellants and on their denial of charges, they were put on trial and on conclusion of trial, both the appellants were held guilty under Section 302, Indian Penal Code and Section 27, Arms Act and they were, accordingly, convicted and sentenced, as stated above. 4. The case of appellants, as it appears from trend of cross-examination of prosecution witnesses, is of their complete innocence and false implication in this case on account of enmity. 5. In order to prove its case, prosecution has examined nine witnesses. 6. Dr. Wahabuddin (P.W. 1) is the doctor who held post mortem examination on the dead body of deceased. Md. Shamsher Alam (P.W. 9) is the Investigating Officer. 5. In order to prove its case, prosecution has examined nine witnesses. 6. Dr. Wahabuddin (P.W. 1) is the doctor who held post mortem examination on the dead body of deceased. Md. Shamsher Alam (P.W. 9) is the Investigating Officer. Narayan Mistri (P.W. 3), Gangadhar Mandal (P.W. 4), Uchit Paswan (P.W. 5), Kishori Prasad Singh (P.W. 7) have been declared hostile by the prosecution. Dinesh Jha (P.W. 6) is a formal witness who has proved an affidavit (Exhibit-2) and signature of Narayan Mistri (Exhibit-3) and signature of Dinesh Kumar Gupta, advocate (Exhibit-3/1) on this affidavit. Mahesh Kumar Mandal (P.W. 8) is an eye witness to the occurrence. 7. Dr. Wahabuddin (P.W. 1), in his evidence has stated that on 19.2.1993 at 3.30 p.m., he held post mortem examination on the dead body of deceased and found following ante mortem injuries : (1) one circular lacerated wound on left parietal bone with a hole in the skull bone and also fracture of frontal parietal part of occipital bone and this wound was of everted margin and scalp was lacerated at different places and the part of brain contents was found absent and other part was found lacerated and blood and blood clots were present in the scalp cavity. (2) lacerated circular wound with tattooing marks present 2" around the wound 3" above the left elbow laterally in the left arm and margins were everted and there was charring around the wound with compound fracture of humurous bone leading to wound of exit on medially with lacerated oval wound 1" x 1/2" with communicating each other and extra-vasation of blood was also found. (3) one lacerated circular wound with charring and tattoo marks around the wound 1/2" in diameter x chest cavity deep 2" medial to left nipple and margins of wounds were everted leading to wound of exit on the back of right side of chest below right scapular region, communicating margin everted, 1/2" circular and both the injuries were communicating to each other. (4) one lacerated oval wound on the back of left side of lower chest 1" x 1/2" with tattooing 3" around the wound margin everted x chest cavity deep leading of wound of exit with circular lacerated wound 1/2" in diameter just below left clavicle laterally margin everted and both wounds were communicating each other. (4) one lacerated oval wound on the back of left side of lower chest 1" x 1/2" with tattooing 3" around the wound margin everted x chest cavity deep leading of wound of exit with circular lacerated wound 1/2" in diameter just below left clavicle laterally margin everted and both wounds were communicating each other. (5) one lacerated oval wound 1-1/2" x 1/2" on lateral portion of the upper left thigh leading to wound of exit 3" apart medially with lacerated oval wound 1" x 1/2". Both injuries were communicating to each other, and (6) one lacerated circular wound on left side just above ingunial region 1/2" x lacerated circular wound with abdominal cavity deep, margins were inverted. He has further stated that on dissection, one bullet was found lodged with right ingunial cavity which was taken out and sealed in a glass container and was handed over to police and both lungs were found lacerated and blood and blood clots were found in thoracic and pericardial cavity and death was due to shock and haemorrhage as a result of aforesaid injuries which all were caused by firearm and time elapsed since death was within twelve hours and injuries No. 1, 3, 4 and 6 were sufficient to cause death. He has proved the carbon copy of post mortem examination report (Exhibit-1) which, according to him, was prepared with original with the help of carbon. His evidence establishes that death of deceased was homicidal and was the result of firearm injuries received by him. 8. Bhuneshwar Mandal (P.W. 2), the informant, is the father of deceased and he, in his evidence, has stated that on the day of occurrence at about 7.30 a.m., he was sitting on a chair of his Darwaza when his deceased son came out of his house and told him that he was going to Sangrampur for attending a meeting and, thereafter, his son went to the betel shop of Tarni Bind where three persons came from northern side and two persons from southern side and they all surrounded his son and started indiscriminately firing on him. Among those five persons, he identified the appellants who were also shooting with their firearms. Among those five persons, he identified the appellants who were also shooting with their firearms. He has further said that first shot was fired by appellant Milton Yadav on the head of deceased hitting his head and when deceased fell down, appellant Manoj fired on the chest of deceased and companions of appellants also fired on deceased but he could not identify them. He raised hulla by sitting on the chair and villagers started assembling there and appellants and their companions fled away towards western hilly area through Janshakra locality and they were followed by villagers but they could not be apprehended. According to him, occurrence was witnessed by Vijay Singh (not examined), Narayan Mistri (P.W. 3), Gangadhar Mandal (P.W. 4), Muneshwar Mandal (not examined), Kishori Singh (P.W. 7), Kailash Singh (not examined). About motive of occurrence, he has said that on a matter of contract of school, a dispute had arisen between deceased and appellant Milton and besides this, a dispute on the matter of irrigating water of a pond had arisen between appellant Milton and villagers and deceased was called who had taken the side of villagers. He has proved his fardbeyan (Exhibit-2). 9. Mahesh Kumar Mandal (P.W. 8) has said that on the day of occurrence at about 7.30 a.m., he was sitting in the verandah of his house which is situate by the side of road and he saw that three persons coming from northern side and two persons coming from southern side and appellant Milton Yadav fired from his pistol on the head of deceased and deceased fell down and, thereafter, appellant Manoj Kumar Yadav @ Tuntun Yadav fired 2-3 shots on deceased and the deceased died on the spot. He has said that inquest report of the dead body of deceased was prepared in his presence and he put his signature on the inquest report. 10. Md. Shamsher Alam (P.W. 9), the Investigating Officer, has said that on 19.2.1993, he was posted as Officer-in- charge of Kharagpur police station and on that day at about 9 a.m., he recorded the fardbeyan (Exhibit-4) of informant and he also prepared inquest report of the dead body of deceased and the details of inquest report is recorded in para-21 of case diary. He found the dead body lying close to the betel shop of Tarni Bind and head of body was blown up and there were injuries on the chest and lateral sides of chest and near umbilicus of deceased and he also found blood in sufficient quantity at the place of occurrence and after preparing inquest report of dead body, he sent it to Sadar Hospital, Munger for post mortem examination. He has further said that he, alongwith police party went in the direction, in which appellants and their companions had made their escape and after going at a distance of about two kilometers, he found a white trousers and he also deployed a squad of sniffer dogs and dogs after giving round to the houses of appellants, turned towards west where there was open land and forest. He has proved formal first information report (Exhibit-5). 11. The evidence of informant (P.W. 2) and P.W. 8 and the objective findings, as disclosed by the evidence of Investigating Officer, fully support the case of the prosecution. It has been argued on behalf of the appellants that, admittedly, informant is father of deceased and P.W. 8 is the cousin of deceased and besides them, there is no other independent witness to support the case of the prosecution on the point of firing by appellants at deceased and prosecution has not examined any independent witness which casts doubt on the case of prosecution. It is true that informant and P.W. 8 are related to deceased but only on this ground, they cannot be disbelieved. About non-examination of other witnesses, the Investigating Officer, in his evidence, has stated that he had received a Courts order for providing security to witnesses but, inspite of it, he could not bring some witnesses before Court because they were terrified in attending the Court. Kishori Prasad Singh (P.W. 7) who, although has been declared hostile by the prosecution, in his examination-in-chief, has stated that at the time of occurrence, he was at the Darwaza of deceased and he saw de- ceased going to the shop of Tarni Bind for taking betel. After giving this evidence, he has said that he is not mustering courage to speak further and he has said that deceased was killed but he cannot say who killed him. After giving this evidence, he has said that he is not mustering courage to speak further and he has said that deceased was killed but he cannot say who killed him. His evidence supports the evidence of Investigating Officer that some witnesses could not be produced in Court because they were frightened. Dinesh Jha (P.W. 6) has proved an affidavit (Exhibit-2) said to have been sworn by P.W. 3 Narayan Mistri and he has also proved signature of P.W. 3 (Exhibit-3) and signature of Shri Dinesh Kumar Gupta, advocate (Exhibit-3/ 1) on this affidavit. By producing this affidavit, the prosecution wanted to show that P.W. 3 in this affidavit stated that his statement was recorded by Investigating Officer during the course of investigation where he stated that both the appellants alongwith others committed the murder of deceased but somebody else, in his name, appeared before Court for recording his statement under Section 164, Code of Criminal Procedure. Since P.W. 3, when produced in Court, has not supported the case of prosecution and he has been declared hostile, therefore, affidavit, said to have been sworn by him and which has been brought on record, does not help in any way the case of prosecution. 12. The learned counsel appearing on behalf of the appellants has stated that the medical evidence does not support the ocular evidence adduced in this case because P.W. 1 Dr. Wahabuddin, who held post mortem examination on the dead body of deceased, found as many as six injuries said to have been caused by firearms whereas the informant, in his fardbeyan, has stated that first shot was fired by appellant Milton Yadav and when the deceased fell down, appellant Manoj Kumar fired second shot. It has been further argued that P.W. 2, in his evidence, has stated that his deceased son was surrounded by five persons who indiscriminately fired at him from their firearms which is also against his statement made in fardbeyan in which he named only the appellants as the persons who fired at his deceased son. I find no substance in this submission because in the fardbeyan also, the informant has clearly stated that five persons, two coming from southern side and three from northern side, surrounded his deceased son and fired at him on his head. I find no substance in this submission because in the fardbeyan also, the informant has clearly stated that five persons, two coming from southern side and three from northern side, surrounded his deceased son and fired at him on his head. In making this statement, he further described that first shot was fired by appellant Milton and second shot was fired by appellant Manoj Kumar. Similarly, P.W. 8 Mahesh Kumar Mandal, in his examination- in-chief, stated that both the appellants fired at deceased but in para-7 of his cross-examination, has stated that when, after receiving injury inflicted on deceased by appellant Milton, the deceased fell down, the appellant Tuntun Yadav and other unknown persons also fired at the deceased and he has further stated that those unknown persons had surrounded the deceased and they fired at him from all the sides. I, therefore, find that there is no contradiction in the evidence of prosecution witnesses and medical evidence on the point of assault by firearms on deceased by the appellants and their companions. 13. It has been argued on behalf of the appellants that there was no possibility for informant and P.W. 8 to witness the occurrence by sitting at their respective houses. The informant, in his evidence, has said that the road going from village Bariarpur to Kharagpur in the north-south direction, is about a distance of fifty yards towards west from his house. The occurrence is said to have taken place on this road. P.W. 8, in his evidence, has said that at the time of occurrence, he was sitting at Darwaza of his house situated on the side of road and in cross-examination, he has said that his house is situated on the Bariarpur-Kharagpur road towards south of the house of deceased and there are only two houses between his house and the house of deceased. The Investigating Officer, in his evidence, has stated that the place of occurrence is western side of road and the road is at a distance of about twenty yards from the house of deceased. The defence put the eyesight of informant on test by asking him the colour of a pen shown to him which he replied correctly. The Investigating Officer, in his evidence, has stated that the place of occurrence is western side of road and the road is at a distance of about twenty yards from the house of deceased. The defence put the eyesight of informant on test by asking him the colour of a pen shown to him which he replied correctly. The Court below also took note of all these facts and we agree with the findings of Court below in this regard that there is no reason to disbelieve the evidence of informant and P.W. 8 that they saw the occurrence from their respective houses. The appellants Binod Kumar Yadav @ Milton Yadav, in his examination under Section 313, Code of Criminal Procedure, has stated that when in the morning, it was detected that deceased had been murdered, his dead body was brought and was kept on the side of road and appellants were falsely implicated in this case. The appellants have not brought any material on record to prove that the murder of deceased was committed somewhere else. The evidence of Investigating Officer that he found the dead body of deceased on the side of road and there was copious blood there completely negatives the story of appellants that the deceased was murdered somewhere else and his dead body was brought and put at the side of road. 14. The learned counsel appearing on behalf of the appellants has pointed out the statement of P.W. 8, recorded in para-7 of his evidence where he has stated that at the time of receiving firearm injuries, deceased was standing facing towards west and appellant Milton fired at him from north. According to learned counsel for the appellants, if this statement is taken to be true, in that case, deceased would have received injury on right side of his head whereas medical evidence is that deceased had received injury on left parietal bone. In our opinion, this contradiction does not weigh much for discarding the entire evidence on record. Lastly, it has been submitted on behalf of the appellants that P.W. 1 Dr. Wahabuddin, in his evidence, has stated that in post mortem examination, he found the stomach of deceased with full of semi-digested food particles in small intestine and he has further said that as soon as the food reaches the stomach, enzymatic action starts and within 1-1-1/2 hours, it becomes semi-digested. Wahabuddin, in his evidence, has stated that in post mortem examination, he found the stomach of deceased with full of semi-digested food particles in small intestine and he has further said that as soon as the food reaches the stomach, enzymatic action starts and within 1-1-1/2 hours, it becomes semi-digested. According to the appellants, the evidence of informant is that immediately after taking breakfast, the deceased went to the betel shop where occurrence took place but presence of semi- digested food in the stomach of deceased shows that death of deceased had occurred at least 1-1-1/2 hours before the alleged time of occurrence because he took breakfast just before this alleged time and it completely belies the case of prosecution and the evidence of informant that immediately after taking breakfast, deceased went to the betel shop in front of his house where the occurrence took place, the moment deceased reached there, We fully agree with the finding of the Court below on this point that possibility of taking some food earlier by deceased cannot be ruled out. Besides this, it cannot be held that whatever food, the deceased had taken before his breakfast, that entire food must have completely been digested and there was no chance of its any portion remaining in the stage of semi-digestion. We, therefore, find no substance in this argument raised on behalf of the appellants. The evidence on record clearly shows that both the appellants and their companions armed with firearms had gone to place of occurrence, they surrounded the deceased and, thereafter, indiscriminately fired on him resulting into his death. This clearly shows that they all had common intention to commit the murder of deceased and in furtherance of their common intention, they all fired at deceased. The informant, in his fardbeyan as well as in his evidence, has stated that earlier on the matter of contract for a school, a dispute had arisen between deceased and appellant Milton and besides this in a dispute for using the water of a pond for irrigation between villagers on one side and appellant Milton on other side, the deceased had taken the side of villagers and in his fardbeyan he has stated that both the appellants had given threatening to deceased for killing him, earlier. So, we find that evidence on record proves the case of prosecution that both the appellants are guilty under Section 302 read with Section 34, Indian Penal Code and Section 27, Arms Act. It is true that in the charges framed against both the appellants by Court below, there is no mention of Section 34, Indian Penal Code but then when appellants were examined under Section 313, Code of Criminal Procedure, question was clearly asked from them that whether they, on the day of occurrence alongwith other co-accused persons, committed the murder of deceased. We therefore, find that absence of mention of Section 34, Indian Penal Code in the charge has not caused any prejudice to the appellants in view of specific question put to them in their examination under Section 313, Code of Criminal Procedure and also in view of evidence of prosecution witnesses, which was recorded in their presence that they alongwith others committed the murder of deceased. Besides this, Section 34, Indian Penal Code is not a punitive section and it is only a rule of evidence. 15. We, therefore, find that the prosecution has proved its case against both the appellants beyond all reasonable doubts and they have been rightly held guilty by the Court below. We do not find any reason to interfere with the finding of the Court below as to conviction and sentence of both the appellants. 16. In the result, this appeal is dismissed. The judgment and order of Court below convicting and sentencing both the appellants are upheld. The bail bonds of appellant Bimal Kumar Yadav @ Bimal Kumar @ Milton Yadav, who has been ordered to be released on bail, are cancelled and he is directed to surrender before the Court below to serve out the remaining period of his sentence. B.K.Jha, J. 17 I agree.