Judgment P.K.SINHA, J. 1. Appellant Md. Afsar stands convicted under Section 302 of the Indian Penal Code (the Code in short) and sentenced to undergo imprisonment for life as also to pay fine of Rs. 2,000/-(Rupees two thousand) or to undergo rigorous imprisonment for six months, in default. All the three appellants have been convicted under Section 302 read with Section 34 of the Code, as well under Section 27 of the Arms Act and sentenced to undergo rigorous imprisonments for life, and for three years respectively, as also to pay fines. 2. Informant Md. Sabih Ahmad (PW 7) gave his fardbeyan, on 18.10.1995 at 6.00 p.m. in his house stating therein that on that day on the second floor of the house when he was with his mother and other members of the family, at about 5.15 p.m. the three appellants, who were their ex-tenants, came there and they fired, one shot each from the revolvers that were in their hands out of which the shot fired by Md. Afsar hit on the forehead of his mother (Neshat Ara) who fell down. The appellants when fled were chased by the informant but they made good their escape along with four or five unknown persons, firing. Amongst the witnesses to the occurrence were his sisters, Raffat Jabeen @ Ruby (PW 2), Musarat Jabeen @ Dazy (PW 3), Nuzhat Jabeen @ Lucy (PW 4), Farhat Jabeen @ Rozy, (PW 1) and Nusrat Jabeen @ Gracy (PW 5), who all were inside the same room. The informant claimed that the appellants were tenants in their house since last five to six years who were being forced to vacate the same which they had resisted but when after great efforts they vacated the house about four to five months back they had hurled threats and, subsequently, also had issued threatenings through the phone. 3. Out of the aforesaid Nuzhat Jabeen and Nusrat Jabeen, who at the time of evidence, given about two years after the occurrence, were assessed to be ten years and eight years old, respectively, were tendered for cross examination but nothing of value has been taken in the questionings by the defence. 3. Out of the aforesaid Nuzhat Jabeen and Nusrat Jabeen, who at the time of evidence, given about two years after the occurrence, were assessed to be ten years and eight years old, respectively, were tendered for cross examination but nothing of value has been taken in the questionings by the defence. Husband of the deceased (who had died that very day in the hospital at about 8.00 p.m.) is Abu Zar Mohammad (PW 6) who had rushed to his house after the occurrence and was told by his daughters about the incident. PW 9, Ghulam Raza is the brother of the deceased who took the witness stand to swear that he had seen the appellants fleeing away and was also told about the incident by the inmates of the family when he went up-stairs. PW 8, Raju is a seizure list witness whereas Dr. Arbind Kumar Singh (PW 10), had conducted the autopsy upon the dead body. Laxmi Kant Kunal (PW 11) was the Investigating Officer. Two defence witnesses also were examined. 4. Before proceeding to examine the evidence of the witnesses, particularly eyewitnesses, first a glance over evidence of PW 10. The evidence on record supporting the prosecution case revealed that though all three appellants had fired but the first shot fired by the appellant Md. Afsar had hit the forehead of the deceased whereas two other shots had missed her. PW 10 had conducted autopsy on 19.10.1995 at 10.45 p.m. and following were his findings as per his evidence : "(1) One penetrating injury seen in front of head and face covering an area of 3" x 1-1/2" extending from right tip of nose to bridge of nose, inner corner of eye-mid-frotal portion of head, margin blacken, ragged septum, nasal bone and frontal bone fractured in pieces (wound of entry). (ii) On dissection; on opening of scalp haemortoma seen underneath, both occipital and parietal bone found fractured, a metallic object like bullet was recovered from fractured bone site near mid-occipital area. A track was seen from injury No. 1 to the bullet site passing through brain. Brain was lacerated clot seen all over. All the viscera in general were pale, heard empty, stomach contains yellow fluid. Opinion : On the basis of these findings : (i) Time elapsed since death between 6 (six) to 24 (twenty four) hours approx. (ii) Cause of death haemorrhage and shock. Brain was lacerated clot seen all over. All the viscera in general were pale, heard empty, stomach contains yellow fluid. Opinion : On the basis of these findings : (i) Time elapsed since death between 6 (six) to 24 (twenty four) hours approx. (ii) Cause of death haemorrhage and shock. (iii) Nature of weapon firearm such as revolver. These injuries were sufficient to cause death in the ordinary course of nature." 5 The metallic object (bullet) that was taken by the doctor from the mid-occipital area was kept in a vital, labelled and sealed and handed over to the accompanying constable. The post-mortem report is Exhibit 5. This medical report fully supports the prosecution case about what had caused, the death of Neshat Ara. As seen, apart from the informant, PWs 1, 2 and 3 were eye-witnesses to the occurrence giving their evidences as such. 6. The eye-witnesses, namely PWs 1, 2, 3 and 7 have fully supported the prosecution case insofar as manner of murder of their mother, as claimed in the First Information Report, is concerned. All the four have supported that at the time of occurrence at about 5.15 p.m. they were in the western room of the second floor of their house at which time the three appellants, armed with revolvers, entered into the room and firstly appellant Md. Afsar fired upon their mother which hit her on the forehead and when she started falling down the other two appellants also fired which, however, did not hit the deceased. By and large they have supported that thereafter the appellants fled away through the stairs, followed by PW 7. They also had heard firing sounds from the outside. PW 7, besides supporting this, also said that he had followed them who fled away firing with four or five more persons standing in the lane. He said that thereafter he came back. The other lady witnesses have also supported that when their father and other people came, the injured was taken to the road where a Policy Gypsy was standing (PWs 1 and 7) on which the injured was taken to the Patna Medical College Hospital. According to the lady witnesses they received news at about 8.00 p.m. that their mother had died. By and large the lady witnesses also supported that their father had came after some time who was told about the incident. 7. According to the lady witnesses they received news at about 8.00 p.m. that their mother had died. By and large the lady witnesses also supported that their father had came after some time who was told about the incident. 7. All these witnesses including PW 6, husband of the deceased, have generally supported that the appellants were in- ducted as tenant for a few months only but thereafter they stayed in the house for five/six years. Somehow the house was got vacated whereafter they used to threaten through telephone to harm them physically which threat was given also at the time of vacating the house. 8. PW 6 in his evidence said that on that day he had gone to Mosque for offering Namaz but which he was coming back, he was informed by the servant of his brother-in-law that he was needed at the house. Reaching house he was told that his wife was taken to Patna Medical College Hospital in injured condition and his daughters told the names of the three appellants and narrated how they had injured the house lady. This witness said that thereafter he rushed to the hospital where he found his wife unconscious who died at about 8.00 p.m. He is also a witness to the inquest report. 9. Insofar as this witness is concerned, it may also be mentioned that statement of this witness was,recorded by a Police Officer of Pirbahore Police Station Patna, within whose jurisdiction fell the Patna Medical College Hospital, on the next day at about 9.15 a.m. as fardbeyan. This fardbeyan, was subjected to criticism by Sri Kanhaiya Prasad Singh, the learned counsel appearing on behalf of the appellants. However, it is clear that this statement which also was marked as Exhibit-10, could not be treated as fardbeyan, or First Information Report but only as statement of witness though recorded as fardbeyan. Some omissions and contradictions were attempted to be taken, in course of cross-examination, from the statement in Exhibit 10. In his evidence PW 6 denied to have told in Exhibit 10 that the cause of the incident was the tenancy of the appellants which was terminated about two months back. Sri Singh had argued that according to other witnesses the appellants had vacated the house about five/six months back but this contradiction puts that story in jeopardy. 10. In his evidence PW 6 denied to have told in Exhibit 10 that the cause of the incident was the tenancy of the appellants which was terminated about two months back. Sri Singh had argued that according to other witnesses the appellants had vacated the house about five/six months back but this contradiction puts that story in jeopardy. 10. About the time of vacation of tenancy other witnesses have given consistent evidence and in my opinion some difference about time of vacating the premises, as pointed out could not harm the prosecution case in view of otherwise quite reliable and credible evidence on the record. While giving the statement in Exhibit 10 the mental condition of this witness can well be assessed as his life partner had left the world on account of violence against her and with her dead body he had remained in the hospital for the whole night. But on the main points his evidence in the Court and statement under Exhibit-10 generally are same. 11. Sri Singh also argued that in Exhibit-10 PW 6 had said that while he was rushing back to his home, he saw appellant Arshad along with his father, Fazilat Hus-sain @ Faju Mian, his mother and a nephew coming hurriedly from the side of his mohalla. It was pointed out that in his examination-in-chief he had not told so but in his cross-examination when his attention was drawn, he said that he had told the police only that he had seen Fazilat Hussain, his wife and nephew but not Arshad. This is a minor contradiction and simply because he said that he had seen the relatives of the appellants coming from the side of his mohalla would not effect his evidence. Even if he had seen Arshad and others coming from the side of his mohalla that would not be any contradiction as the clear case of prosecution was that three appellants had fled away along with others who were standing in the lane. The accused might have split up subsequently. 12. PW 9, the brother of the deceased has also ably supported the prosecution case. He said that from the balcony of his house he heard firing sounds coming from the side of the house of his sister and after two to three minutes he saw the three appellants and some others fleeing away from the lane. 12. PW 9, the brother of the deceased has also ably supported the prosecution case. He said that from the balcony of his house he heard firing sounds coming from the side of the house of his sister and after two to three minutes he saw the three appellants and some others fleeing away from the lane. When he rushed to his sisters place, on way he was told that the appellants had fled away after killing his sister. On the second floor he found his sister injured and his nephew and nieces told him that the three appellants had come and fired at the victim out of which the shot fired by Afsar had hit her. He also had gone to the Medical College Hospital. Some contradictions were also taken from this witnesses which are mostly omissions. In cross-examination he had asserted that he had told the Police that in the lane, at a distance of ten to fifteen steps, he had seen the appellants fleeing away. However, he was also suggested, which he denied that he had told the Police only that he had seen accused persons fleeing away towards Dar-gah. Therefore, from the cross-examination itself it is clear that he had told the Police that he had seen the accused fleeing away towards Dargah, which is the evidence given by other witnesses also. 13. The eye-witnesses and PWs 6 and 9 not only have fully supported the prosecution case in their examination-in-chief, but also appear to have well withstood the rigors of cross- examination. 14. Now I will discuss other points raised by the learned counsel for the appellants in attempt to castigate the prosecution evidence. 15. It was argued that the Investigating Officer said in his evidence that he did not find the two bullets that had missed the target in the room or embedded in the wall of furnitures. 16. Sri Singh argued that this puts the evidence on actual occurrence in bad light because the consistent case presented by the witnesses was that after the shot of Afsar had hit the deceased, and when she had started falling down, the other two appellants also had fired which missed the target. 17. 16. Sri Singh argued that this puts the evidence on actual occurrence in bad light because the consistent case presented by the witnesses was that after the shot of Afsar had hit the deceased, and when she had started falling down, the other two appellants also had fired which missed the target. 17. From the evidence of the Investigating Officer itself and from the evidence of eye-witnesses it would be clear that there was a door to the east of the room which was meant for entrance but there was also a door on the west which opened outside. It has sufficiently come in the evidence of witnesses that at the time of attack" upon her, the victim was standing at the western door. There was also a window on the western wall. As per evidence, on receiving the first shot the lady had started falling down at which time two shots were fired, one each by the other two appellants. There is every possibility of the shots missing when the target when it was not stationary but was falling down and also every chance of the missed bullets travelling through the openings on the western, side of the room. The Investigating Officer should have searched for the bullets outside also which he does not appear to have done as from his evidence it appears that he had searched only the room. That lacuna on the part of the Investigating Officer will not make any dent in the prosecution case which otherwise is established by the evidence. 18. Learned counsel for the appellants submitted that though the witnesses have told about the motive for commission of the crime, and when cross-examined they claimed that they had told that motive to the Police Officer also but when confirmation was sought from the Investigating Officer, he said that they had not said so. 19. In this regard it may be noted that from almost all the witnesses omissions were taken on a number of points that came in their evidence including about actual occurrence. When such statements of the witnesses, as told by them in specific words, were put in those words to the Investigating Officer, he denied that the concerned witness had said so. 20. When such statements of the witnesses, as told by them in specific words, were put in those words to the Investigating Officer, he denied that the concerned witness had said so. 20. It would be worthwhile to go into at this stage, the purpose and scope of Section 145 of the Indian Evidence Act, 1872 , which is reproduced below : "145. Cross-examination as to previous statements in writing.A witness may be cross-examined as to previous statements made by him in writing or reduced into writing, and relevant to matters in question, without such writing being shown to him, or being proved; but, if it is intended to contradict him by the writing, his attention must, before the writing can be proved be called to those parts of it which are to be used for the purpose of contradicting him." 21. A plain reading makes it clear that this provision is in two parts. Firstly, a witness may be cross-examined as to the previous statement made by him in writing or reduced into writing, and relevant to the matters in question without such writing being shown to him or being proved. Here like any other statement of the witness, he can be cross-examined on his previous statement and if during such cross-examination some point has been extracted which may help the defence, then that is what could be the gain of the defence. In its second part, when it is intended to contradict the witness by the writing, i.e. to impeach his credibility, then his attention must, before the writing can be proved, be drawn to those parts which are to be used for the purpose of contradicting him. But we have noticed in a large number of cases that though a witness has said a particular fact, may be in brief in his statement under Section 161 of the Code of Criminal Procedure but if the same is told in other words in his evidence, and when the words told by him in evidence are put before the Investigating Officer, the Investigating Officer almost invariably goes through the case diary and finding the statement in not those exact words, replies that the witness had not said so. In such way, his credibility cannot be impeached unless in cross-examination his attention specifically is first drawn to those parts of previous statement which are to be used for the purpose of contradicting him. The witness must be asked if he had given such and such statement, as recorded in the case diary and then he could be contradicted with what the witness has said in his deposition if the two statements differ. Unless that is done, mere asking questions inviting mostly omissions will hardly help the defence. The case diary cannot be used as evidence, which is the law. But in an enquiry or trial the Court may use such diary to aid it in the enquiry or trial under Section 172(2) of the Code of Criminal Procedure. Like in many such other cases, a perusal of the case diary in this case would make it apparent that though witness had given a statement, may be not in the exact words that were used in the deposition, and when the expression used in deposition was put to the Investigating Officer he simply said that such statements were not made. Such cross-examination cannot impeach the credibility of the witnesses. An alert Investigating Police Officer while answering such specific question also tells the Court as to what exactly the witness had said on the point concerned which puts the facts in right perspective. 22. Moreover, omissions can be treated as contradictions only in exceptional cases. A witness may tell a fact under Section 161 of the Code of Criminal Procedure but when questioned by the prosecutor or cross-examined by the defence counsel, those statements get expanded but such elaborations being manifestations of a particular statement can hardly be taken to be contradiction or even omission. 23. Insofar as the motive is concerned that in brief has been revealed the First Information Report also. The occurrence is said to have taken place at about 5.15 p.m. and the fardbeyan, on the same day was recorded in the house of the informant at about 6.00 p.m. It has come into evidence that soon after the occurrence the informant had taken the deceased to the hospital from where he came back to his house to take money when his fardbeyan, was recorded by the Police Officer. It has also come that the eye-witnesses were also examined the same day. It has also come that the eye-witnesses were also examined the same day. In the situation that the informant and other eye-witnesses were put in, there is hardly any likelihood of effecting manipulations or improvements in the case within that short span of time. 24. The motive got full support from the evidence of witnesses, may be with minor variations here and there. On the other hand, when the occurrence is proved by cogent and reliable direct ocular evidence on the record, then the motive must take back seat and even if motive in such a circumstance is not proved, which in any case mostly remains. confined within the mind of the offender, that would not cause any dent in the prosecution case. 25. Sri Kanhaiya Prasad Singh also argued that in a traditional muslim family a lady is hardly supposed to arrange for induction of tenants or their exit, hence there was hardly any reason for the appellants to kill the lady leaving her husband and adult son unscathed, particularly when the son (informant) was also present at the place of occurrence. 26. PW 1, in this regard has said in her evidence that the deceased was a literate lady. She also said that Faju Mian, father of the appellants, had taken house on rent for a few months from her mother but had continued for years whereas mother used to ask him repeatedly for vacating the house for which reason they also had quarrelled. She said that they even used to threaten the mother on telephone. PW 3 also gave similar evidence on this point. 27. Simply because a lady belongs to a particular community will not mean that she must not be taking decisions in family and financial matters, moreso in major household affairs. Therefore, this argument does not cut any ice. 28. Learned counsel also submitted that though as per evidence on record the house of the informant was in a densely populated mohalla, having many houses around and though it came in evidence that many persons had come after occurrence but no independent witness has taken the witness stand to support the prosecution case. 28. Learned counsel also submitted that though as per evidence on record the house of the informant was in a densely populated mohalla, having many houses around and though it came in evidence that many persons had come after occurrence but no independent witness has taken the witness stand to support the prosecution case. It will just be repeating a well accepted fact to say that simply because witnesses are interested or relatives of the informant or deceased will not make their evidence suspect and conviction can be based on their evidence if that is found to be so credible as can be relied upon. In view of the good evidence of the witnesses on record I do not think that non-examination of independent witnesses would harm the prosecution case more particularly when the offence was committed inside a room on the second floor of the house. In such case the inmates present in the house in that room would be the most natural witnesses. Even non-examination of other tenants, as argued on behalf of the appellants, would not discredit the prosecution case for the same aforesaid reasons. 29. It was argued that it has come in the evidence of PW 1 that mother was fired upon from a distance of three to four feet, therefore, it was strange that two appellants other than Md. Afsar had missed their target. As already stated, as per evidence the other two appellants had fired when the victim was falling down after receiving the first shot. The appellants have not been shown to be professional and/or hardened criminals who will commit such a crime with equanimity. They also must be in a disturbed mental condition and in absolute hurry. In such a situation if the two of them had fired on a moving target, even from rather close quarters, not strange it is that the bullets missed the body. 30. It was also submitted on behalf of the appellants that PW 9 had soon thereafter came to the house of the victim where he was told by the eye-witnesses about the details of the crime and then had gone to the hospital with his sister still his statement was taken on 21.10.1995 as per evidence of PW 11. 31. Simply because statement of a witness is not taken immediately or soon after the occurrence will not make his evidence to be unreliable. 31. Simply because statement of a witness is not taken immediately or soon after the occurrence will not make his evidence to be unreliable. It was the job of the Investigating Officer to record the statements of witnesses. Why he did not record statement of a witness soon after the occurrence that he alone can answer. The defence, in order to take this advantage of such belated recording of statement, must give an opportunity to the Investigating Officer when he is under oath, to explain that and if satisfactory explanation comes, then such delay may not be taken into account. But for giving satisfactory explanation, the Investigating Officer has to be asked that question which has not been done in this case. 32. It was also argued that seizure list. Exhibit 8, was prepared afterwards, Firstly it was pointed out that case number was not mentioned by the Investigating Officer. However, it is not unnatural because when seizures are made soon after the occurrence, the Investigating Officer may not know the number of the case which is given on registration of the case at the Police Station. It was also submitted that the Investigating. Officer had said that he had taken the seizure list from the record of the Court but, as pointed out, the seizure list did not contain the signature of the Additional Chief Judicial Magistrate or the seal of the Court. 33. This seizure list relates to the seizure of blood from the room. Admittedly, that was not sent for forensic examination. However, if there is any lacuna in the investigation, the Investigating Officer will be responsible for that but for his lapse the prosecution case cannot be thrown out of the window. This document evidently was on the record of the Court. In such circumstance, how that was placed on the record without the seal of the Court or without the signature of the Presiding Officer, can only be explained by someone from the office of the Court who had dealt with the record and was responsible for receiving the documents. But for this reason it is difficult to hold that the seizure list was prepared later. 34. Learned counsel also submitted that the doctor witness had found that the fatal injury was 3" x 1-1/2" but injury of that size could not be caused by one bullet. But for this reason it is difficult to hold that the seizure list was prepared later. 34. Learned counsel also submitted that the doctor witness had found that the fatal injury was 3" x 1-1/2" but injury of that size could not be caused by one bullet. But from the evidence of the doctor witness it is clear that penetrating injury was found in front of head and face covering the aforesaid area, the bullet travelling from right tip of nose to the bridge of nose, inner corner of eye and to mid-frontal portion of head, fracturing the nasal and frontal bone. Therefore, the size of the injury only indicates the direction that the bullet had taken. There is no doubt about her death on account of a fired bullet as such a bullet was recovered from the fractured bone site near the mid-occipital area. 35. Sri Kanhaiya Prasad Singh also read out the evidences of two defence witnesses, Jamil Akhtar and Rajesh Kumar. These witnesses have said that on hearing a loud explosion (DW 2) they saw that a lady was lying in the lane who was taken on a tempo to the Patna Medical College Hospital. DW 1 has said that the persons who came included the father of Neshat Ara and it was he who had called a tempo. However, in the entire story no reference to the father of the deceased has come. DW 2 also said that the explosion was loud. He also said that the injured lady in the lane was taken in a tempo to the hospital. 36. DW 1 has said that when the Police Officer had come to the Mohalla, he had given his name, address and fathers name. However, this witness does not explain as to why he did not tell the Investigating Officer what he had seen. He has denied that the injured lady was taken in a gypsy car. Similarly, DW 2 did not even claim that he had given any such statement to the Police Officer. 37. PW 1 has said that after incident her mother was taken to road where a Policy gypsy was standing on which the injured was taken to the hospital. He has denied that the injured lady was taken in a gypsy car. Similarly, DW 2 did not even claim that he had given any such statement to the Police Officer. 37. PW 1 has said that after incident her mother was taken to road where a Policy gypsy was standing on which the injured was taken to the hospital. The informant, in his evidence also said that when he returned back after chasing the culprits, many persons from Mohalla and PW 9 also came there whereafter they lifted the injured and brought her to the hospital with the help of a Police gypsy car. 38. For these reasons I do not find that the defence witnesses would make any effect on the case of the prosecution. 39. It was submitted that appellants Md. Arshad and Md. Akbar could not have been convicted for the murder with the help of Section 34 of the Code, further arguing that they had not hit the deceased, therefore, having any common intention to kill her was exposed to doubts. According to the prosecution evidence all the three appellants had come together and all the three had fired though only one shot had hit the deceased and immediately thereafter they all had fled away. As per evidence, all had come armed with firearms. In such a situation, it cannot but be held that the appellants Md. Arshad and Md. Akber had common intention along with Md. Afsar to kill the lady. This could be the only conclusion. 40. Lastly, it may be stated that when the arguments were nearing conclusion, supplementary affidavit was filed on behalf of the appellant Md. Afsar, as also claimed in paragraph 7 in the memo of appeal, that he was born on 1.1.1979 whereas date of occurrence was 18.10.1995, hence he would be entitled to the benefits of Juvenile Justice (Care and Protection of Children) Act, 2000. ("the Act" in short). In proof, some documents such as copies of admit card of Bihar School Examination Board, School Leaving Certificate, certificate granted by the Bihar School Examination Board and voter-list, have been annexed with the supplementary affidavit. 41. It is evident that on the date when the Act came into force on 1.4.2001, the appellant was above eighteen years of age. In proof, some documents such as copies of admit card of Bihar School Examination Board, School Leaving Certificate, certificate granted by the Bihar School Examination Board and voter-list, have been annexed with the supplementary affidavit. 41. It is evident that on the date when the Act came into force on 1.4.2001, the appellant was above eighteen years of age. A Division Bench of this Court in the case of State of Bihar V/s. Arnit Das, 2003 (2) PLJR 553 : 2004 (3) East Cr C 467 (Pat), had considered this question and it was held that benefit of the Act could be given only to those accused who, on the date the Act came into force, had not attained the age of eighteen years and against whom a proceeding was pending. If these criterias were not fulfilled, the benefit of the Act could not be given to the accused. In view of that decision there is no question of giving benefit of the Act to the appellant Md. Afsar. 42. In view of the aforesaid I find no scope to interfere with the findings of the learned lower Court, convictions of the accused and the sentences. Criminal Appeals No. 238 of 1999 and 283 of 1999, in the result stand dismissed. CHANDRA MOHAN PRASAD, J. 43 I agree.