Judgment S.N.Jha and P.N.Yadav JJ. 1. There are five appellants in this appeal. Appellants Ram Janam Singh, Ram Pravesh Singh, Suresh Singh and Ganga Singh have been convicted under Section 302 read with Section 34 and also 149 of the Indian Penal Code and sentenced to rigorous imprisonment for life. Appellant Dasai Singh has been convicted under Section 302 read with Section 109 of the Penal Code and sentenced to rigorous imprisonment for life. Appellants Ram Janam Singh and Ganga Singh have also been convicted under Section 148 but not awarded any separate sentence for the same. 2. Out of the appellants Dasai Singh died during the pendency of this appeal. A report to this effect has been submitted by the Senior Superintendent of Police, Patna vide his memo no. 1543 dated 4.9.2002. The appeal so far as he is concerned, thus, stands dismissed as abated. 3. The prosecution case is as follows. Sugan Singh, a resident of village Neori, P.S. Bihta, District Patna, went to his sugarcane field to oversee cultivation on 27.11.81. While he was returning at about noon he was waylaid by the accused persons forcibly taken to the Dalan of Ram Janam Singh and killed there. Nirja Devi and Niru Devi, daughters of Sugan Singh, saw him being forcibly taken away from the roof of their double storeyed house. They rushed downstairs shouting. On hearing their shout Devendra Singh, a cousin of Sugan Singh, who was lying on the verandah of the house rushed in the direction where the occurrence was taking place. He saw Sugan Singh being forcibly taken inside the Dalan enclosed by a boundary wall. After he was taken inside, the iron gate was closed. Two persons climbed the roof and started firing to keep people away from coming near. They were giving threats. Apprehending danger Devendra Singh rushed to Neora to contact the police. He could not do so. He then went to Shivala where wireless office was situated. He could not succeed in sending information to the police from the wireless office either. He, however, saw some persons making preparation for going to Danapur on a government jeep. On his request they took him to Danapur. Reaching there he went to the office of the Assistant Superintendent of Police. There he met Inspector of Police of Danapur P.S. He told him about the occurrence. He, however, saw some persons making preparation for going to Danapur on a government jeep. On his request they took him to Danapur. Reaching there he went to the office of the Assistant Superintendent of Police. There he met Inspector of Police of Danapur P.S. He told him about the occurrence. The Inspector sent message to Bihta Police station. He assured him that the police will reach the place before he returns. He gave a piece of paper and asked him to submit report of the incident in writing. As he was nervous he could not write the report himself. On his dictation Bhushan Singh, who had accompanied him, wrote the report. 4. This is what Devendra Singh stated in his evidence in court as P.W. 6. It is relevant to mention here that the abovesaid report was entered in the Station Diary as Entry No. 3703. At the trial, the report was brought on record as Ext. 6. Perusal thereof shows that wireless message was sent by the Inspector, Danapur P.S. to Bihta P.S. at 2.35. The report was later on the same day put up before the Assistant Superintendent of Police who directed the Officer-in-charge Bihta P.S. to submit a report about the present situation and the preventive action taken. 5. After lodging the report Devendra Singh returned home. He found that the police had already arrived and waa recording the statement of his brother Rajendra Singh. He said so in his evidence. The statement of Rajendra Singh has been treated as Fardbayan in this case. Though no argument was made in this regard, we would like to observe that the report lodged by Devendra Singh narrated only part of the incident upto the point Sugan Singh was taken inside. It transpired that Sugan Singh was later killed inside. The statement of Rajendra Singh contained details of the entire occurrence and it was rightly treated as the Fardbayan. 6. On the basis of the said Fardbayan of Rajendra Singh Bihta P.S. Case No. 206/81 was instituted and investigation commenced. S.I. Md. Rasid Ansari who had recorded the Fardbayan of Ramjanam Singh, also investigated the case. He made inquest on the dead body, took steps for the post mortem, recorded statements of the witnesses and after completing necessary formalities submitted chargesheet against 11 persons, six out of them were acquitted. 7. S.I. Md. Rasid Ansari who had recorded the Fardbayan of Ramjanam Singh, also investigated the case. He made inquest on the dead body, took steps for the post mortem, recorded statements of the witnesses and after completing necessary formalities submitted chargesheet against 11 persons, six out of them were acquitted. 7. At the trial the prosecution examined 11 witnesses to prove its case out of whom P.W. 2 Niru Devi, P.W. 5 Surendra Sharma and P.W. 10 Sukhdeo Singh were tendered. P.W. 8 Saheb Singh, who had accompanied the dead body to the hospital for post mortem was examined as a formal witness. Dr. Sidheshwar Pd. Singh who performed the autopsy was examined as P.W. 9, while the Investigating Officer, S.I. Md. Rashid Ansari was examined as P.W. 11. The material witnesses on the point of occurrence are P.W. 1 Nirja Devi, P.W. 3 Anil Kumar Sharma, P.W. 4 Girja Singh, P.W. 6 Devendra Singh and P.W. 7 Rajendra Singh, the informant. The appellants too examined one witness, namely, Sheodhar Pd. Singh as D.W. 1 to prove enmity between the parties. 8. It may be stated at the outset that from the evidence of the Investigating Officer it is established beyond doubt that the dead body was found in the compound of the house of appellant Ramjanam Singh. (At some places, the house is said to be of appellant Dasai Singh. As a matter of fact, all the appellants are related-three of them full brothers-sharing the same house.) Though suggestion was made to some of the prosecution witnesses that the deceased was killed by the naxalities, it was like a cry of desperation. The occurrence took place, as seen above, at noon in the broad day light and there is nothing on the record to suggest that the crime was the handiwork of outsiders. In this view of the matter, Shri Praksh Narain Pandey, learned counsel for the appellants, fairly stated that the question that mainly arises relates to identification. He submitted that in view of the conflicting evidence on the point of identification it is not possible to identify the culprits and, therefore, the appellants are entitled to benefit of doubt. In this view of the matter, Shri Praksh Narain Pandey, learned counsel for the appellants, fairly stated that the question that mainly arises relates to identification. He submitted that in view of the conflicting evidence on the point of identification it is not possible to identify the culprits and, therefore, the appellants are entitled to benefit of doubt. Alternatively, he submitted that the trial court has mainly relied on the evidence of P.W. 1 Nirja Devi who identified only Suresh Singh and Ganga Singh as the persons who had forcibly taken away the deceased and thus on the finding of the court below itself there is no justification to convict other appellants, namely, Ram Janam Singh and Ram Pravesh Singh. He pointed out that though the witnesses named as many as 12 persons as participants of the crime, only 11 of them were put on trial, out of whom six were acquitted on the same evidence. 9. It was submitted on behalf of the State that acquittal of some of the accused on the same evidence does not lead to the innocence of the rest and this Court has to decide on the evidence on record whether the prosecution has succeeded in proving its case against the appellants herein or not. We are in agreement with the learned State counsel. The appellate court is not supposed to go by the findings of the trial court. It is only because the State has not preferred appeal against acquittal that this Court cannot go into the correctness or otherwise of the relevant findings. 10. As a matter of fact, the submission of the counsel that the trial court has relied on the evidence of Nirja Devi alone does not appear to be correct. The court described Nirja Devi as "more truthful" witness but at the same time it relied on the evidence of other witnesses too which is evident from the observation in para 16 of the judgment that from the "consistent evidence of the witnesses" it appears that Ram Janam Singh was armed with garasa and had assaulted the deceased by it before being taken inside the gate. 11. I do not also find any substance in the submission of the counsel for the appellants that Nirja Devi identified only Suresh Singh and Ganga Singh and therefore the others should be left off. 11. I do not also find any substance in the submission of the counsel for the appellants that Nirja Devi identified only Suresh Singh and Ganga Singh and therefore the others should be left off. She clearly stated in her evidence that when Suresh Singh and Ganga Singh were forcibly taking Sugan Singh, 8-10 persons came out from inside i.e. the appellants house. It is to be kept in mind that Nirja Devi saw that occurrence from the roof of the second storeyed building. Seeing her father being forcibly taken away by Suresh Singh and Ganga Singh she became panicky and ran downstairs shouting. On hearing her shouts Devendra Singh came in action and rushed in the particular direction. Thus, if Nirja Devi did not identify rest of the appellants it cannot be said that they were not present there. P.W. 6 Devendra Singh saw the miscreants from close quarters and so did P.W. 3 Anil Kumar Sharma, P.W. 4 Girija Sharma and the informant, Rajendra Singh. They stated about assault, particularly, by Ramjanam Singh outside the gate. The I.O. found blood there. The consistent evidence of these witnesses is that after Sugan Singh was taken inside, the gate was closed and they thus could not see rest of the occurrence. 12. On behalf of the appellants it was submitted that none of the witnesses saw the actual killing and, therefore, in view of doubtful identification it would not be safe to uphold conviction of the appellants. In order to appreciate the submission it would be appropriate to notice the injuries on the person of the deceased found in post mortem as under, 1. Incised wound 6" x 1" x 3" deep extending from the middle part of the head to the front. This wound was 3" deep at the middle part and ¼" deep at the front part of the head. There was fracture of the skull at the middle part of the head. On opening the skull the membrances and the brain tissues were found to be lacerated. 2. Incised wound 2" x ½" x ½" on the left cheek. 3. Incised wound 2" x ¼" x 3/4 middle on nose and it was found hanging. 4. Incised wound 1" x ¼" x ¼" on upper part of the front of neck. 5. Incised wound 3" x ¼" x ¼" in front of middle of neck. 6. 2. Incised wound 2" x ½" x ½" on the left cheek. 3. Incised wound 2" x ¼" x 3/4 middle on nose and it was found hanging. 4. Incised wound 1" x ¼" x ¼" on upper part of the front of neck. 5. Incised wound 3" x ¼" x ¼" in front of middle of neck. 6. Incised wound 3" x ¼" x ¼" on right side of the neck extending to the back. 7. Punctured wound 2" x 1" x 3" deep on the back of middle part of the neck and extending to the left side of the neck. The wound was 3" deep at the middle part of the back of neck and skin deep at the left side of the neck. 8. Incised wound ½" x ¼" x ¼" in front of middle of left little finger. 9. Incised wound ½" x¼ x ¼" in front of the left ring finger (To court-Front side means palm side). 10. Incised wound ½" x ¼" x ¼" in front of upper part of the left leg. 11. Incised wound 3/4" x 1/8" x 1/8" in front of lower end of the left leg. 12. Incised wound 3" x ½" x3/4 " in front of lower end of the right leg. The right tibia bone was cut. 13. Incised wound 1" x ½" x ½" on the right lateral milieus was cut (fractured). 14. Incised wound 1 ½" x ½" x ½" in front of the right foot. 13. It would thus appear that the doctor found as many as 14 incised and penetrating injuries on the deceased. The doctor opined that the incised injuries were caused by sharp cutting weapon while penetrating injuries were caused by sharp pointed weapon. Having regard to the number of injuries and the fact that the crime was committed within the precincts of the appellants house, in our opinion, it is immaterial as to who inflicted which injury. The manner in which some of the accused forcibly brought the deceased inside the compound of the appellants house where others were waiting for him, and as soon as he was brought inside, they closed the gate and started the assault, leaves no room for doubt they shared common intention to kill the deceased. The manner in which some of the accused forcibly brought the deceased inside the compound of the appellants house where others were waiting for him, and as soon as he was brought inside, they closed the gate and started the assault, leaves no room for doubt they shared common intention to kill the deceased. Thus, each of them participated in action and, therefore, the plea that the actual killing was not seen by the occurrence (sicwitnesses ?) is of no significance. Section 34, or for that matter section 149, of the Penal Code creates vicarious liability for the acts done by others. Where crime is caused by a group of persons and it is not possible to identify the person whose act resulted in death, they would share the same liability under Section 34 or 149 of the Penal Code, as the case may be. 14. While considering the case of the prosecution or the plea of the appellants it should be kept in mind that P.W. 6 Devendra Singh reported the incident as quickly as possible. Having realized the gravity of situation he did not wait for the outcome and rushed to inform the police in the manner indicated above. By 2.35 p.m. wireless message had been sent to Bihta P.S. It was stated at the Bar that distance between Danapur and the village of occurrence should be 16-17 kms. As seen above, he first went to Neora and then Shivala before going to Danapur. A bare reading of the statement i.e. Ext. 6 would show that it was a natural account of the incident. It is in this background that the significance of Ext. 6 has to be appreciated. Therein Devendra Singh named all the four surviving appellants i.e. Ram Janam Singh, Ram Pravesh Singh, Suresh Singh and Ganga Singh. The names of others came from the mouth of others. They, except Dasai Singh, have been acquitted-for good or bad reason, and Dasai Singh is dead. In other words, all the appellants whose cases are being consideres were named in the earliest statement of P.W. 6 Devendra Singh. If they were present at the time of place and occurrence when the deceased was forcibly brought into their house where he was brutally assaulted and killed, they cannot escape the liability. 15. In other words, all the appellants whose cases are being consideres were named in the earliest statement of P.W. 6 Devendra Singh. If they were present at the time of place and occurrence when the deceased was forcibly brought into their house where he was brutally assaulted and killed, they cannot escape the liability. 15. It is also to be kept in mind that the dead body was found in the house of the appellants vide the evidence of the Investigating Officer and sketch map, Ext. 5. This circumstance was put to the appellants in their examination under Section 313 Cr.P.C. They failed to give any explanation. They simply denied the factum of recovery. The compound of the house, it appears, is enclosed by high boundary wall and an iron gate and, therefore, there was little possibility of the deceased being killed outside. If the dead boy was found in the compound of the appellants house at about 4.30 p.m. they were required to give some explanation which they failed to give. This circumstance, in our opinion, stares at their face. In the facts and circumstances, we have no doubt in our mind that the prosecution had succeeded in proving its case beyond all reasonable doubts and the conviction of the appellants does not warrant any interference by this Court. The trial court has convicted them under Section 302 with the aid of both section 34 and 149. Section 34 appears to be the appropriate provision applicable in this case. 16. Before we close the discussion, we may mention that at the end of the argument it was submitted on behalf of the appellants that the occurrence took place more than two decades ago, and during the intervening period the appellants have remained on bail, the Court therefore may take liberal view of the case. We regret our inability to do so. It is true that the occurrence is old enough but in a case of murder the Court has little option except in cases where the offence can be brought within the ambit of Section 304 of the Penal Code. The instant case is one of coldblooded murder. The fact that as many as 14 grievous injuries were found on the body of the deceased discloses the mind of the culprits. The instant case is one of coldblooded murder. The fact that as many as 14 grievous injuries were found on the body of the deceased discloses the mind of the culprits. There being no scope to alter the conviction to one under section 304 of the Penal Code, it is not possible to interfere with the sentence. 17. In the result, the appeal is dismissed. The appellants, who are on bail, are directed to surrender in the court below to serve the remainder of the sentence. If they do not do so within one month, the trial court shall take steps to apprehend them in accordance with law.