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2004 DIGILAW 1028 (PAT)

Jagmohan Pandit v. State Of Bihar

2004-09-24

MRIDULA MISHRA, P.N.YADAV

body2004
Judgment P.N.Yadav, J. 1. The facts of the case depicted a sordid and distressing story of the manner in which the incident leading to the commission of murder of 32 year old Prabhash Mandal occurred in broad day light in a sequel to quarrle and exchange of hot words over trifling matter. In the morning at about 8.00 A.M. on 29.6.1985, the informant Anesh Mandal (RW. 5) and his brothers Gurudeo Mandal and Prabhash Mandal (deceased) were planting cauliflowers in their field situated to the west of their village home. Just the, she-goat of appellant Jagmohan Pandit (hereinafter the appellant to be called accused) strayed into their field. The deceased tended and drove away the goat from the field by pelting stone/ Dhela on it. This infuriated Jagmohan Pandit and he abused the informant and his brothers. There ensued exchange of hot words and quarrel between them. In pursuance of hue and cry and call given by Jagmohan Pandit other accused persons Maheshwar Pandit (died before commecement of trial), Prakash Pandit, son of Bharat Pandit @ Bhagirat Pandit both having guns in their hands, Nageshwar Pandit armed with pistol, Kishore Pandit, Prakash Pandit, son of Siya Pandit with lathi in their hands, Ramswaroop Pandit having a spear and Bharat Pandit (empty handed) arrived at the scene. Soon Jagmohan Pandit ordered and instigated his associates to eliminate the deceased and in pursuance of his order Maheshwar Pandit and Prakash Pandit, son of Bharat Pandit opened fire upon him as a result of which he sustained injuries. The deceased Prabhash Mandal was taken to Bhagalpur Medical College Hospital (B.M.C.H.) where he died in course of treatment a few hours later. 2. With the aforesaid accusations the fardbeyan of Anesh Mandal (P.W. 5) was recorded by Shatrughan Singh, Assistant Sub Inspector of Police at B.M.C.H. at 11.30 A.M. on 29.6.1985 in presence of Naresh Mandal (P.W. 6) and Sikandar Mandal (P.W. 7) who also put their signatures thereon. Shatrughan Singh (not examined), who recorded the fardbeyan prepared inquest report and caused the dead body of the deceased to be sent to the mortuary for autopsy which was held by Dr. Nagendra Narayan Bhagat (P.W. 10). Shatrughan Singh (not examined), who recorded the fardbeyan prepared inquest report and caused the dead body of the deceased to be sent to the mortuary for autopsy which was held by Dr. Nagendra Narayan Bhagat (P.W. 10). The fardbeyan was transmitted to Nath Nagar Police Station for registration of case on the basis of which Nath Nagar P.S. Case No. 77 of 1985 was registered u/s. 302 besides some other sections of the Penal Code (hereinafter to be referred to as the Code) as well as u/s. 27 of the Arms Act against all the eight accused persons including Maheshwar Pandit (since dead). Suresh Dubey, Sub Inspector of Police, Nath Nagar Police Station (P.W. 9) soon after receiving the fardbeyan took up investigation. He inspected the place of occurrence, recorded statement of witnesses, collected inquest report and post-mortem examination report and after completing investigation and complying with necessary legal formalities laid chargesheet and finally the trial commenced after commitment. 3. The State examined ten witnesses in all to bring home the charges levelled against the accused persons. Badri Mandal (P.W. 4), Anesh Mandal (P.W. 5), Naresh Mandal (P.W. 6) and Sikandar Mandal (P.W. 7) were eye witnesses to the incident. Ramswaroop Mandal (P.W. 1) witnessed the accused Maheshwar Pandit, Prakash Pandit and Nageshwar Pandit and others (not named by the witness) fleeing away from the scene of incident. He as well as Laxmi Devi (P.W. 8), wife of the deceased claimed to have been disclosed by the deceased that he was shot at and injured by Maheshwar Pandit and Prakash Pandit, son of Bharat Pandit, Jeevan Mandal (P.W. 2) was a tendered witness while Kishun Mandal (P.W. 3) after reaching the place of occurrence merely saw the deceased being put on a cot for his removal to the hospital. As already stated above, P.W. 9 and P.W. 10 were the Investigating Officer and the doctor respectively. 4. The defence set up by the accused before the trial court as well as this Court was that of total denial and false implication. 5. The court below after considering and appreciating evidence brought on records negatived the defence version and recorded findings of guilt and convicted the accused Prakash Pandit, son of Bharat Pandit u/s. 302 of the Code and sec. 27 of the Arms Act and sentenced him to undergo rigorous imprisonment for life and to pay a fine of Rs. 5. The court below after considering and appreciating evidence brought on records negatived the defence version and recorded findings of guilt and convicted the accused Prakash Pandit, son of Bharat Pandit u/s. 302 of the Code and sec. 27 of the Arms Act and sentenced him to undergo rigorous imprisonment for life and to pay a fine of Rs. 2000.00 and in default to undergo rigorous imprisonment for three months under the first count and rigorous imprisonment for two years under the second count, convicted the accused Kishore Pandit, Prakash Pandit, son of Siya Pandit, Ramswaroop Pandit and Nageshwar Pandit under Ss. 302/149 and sentenced them to undergo rigorous imprisonment for life each and to pay a fine of Rs. 1000.00 each and in default of payment of fine to undergo rigorous imprisonment for two months thereunder, convicted and sentenced the accused Jagmohan Pandit to undergo rigorous imprisonment for life and to pay a fine of Rs. 10,000.00 and in default of payment of fine to undergo rigorous imprisonment for six months u/s. 302/109, no separate sentence having been awarded to him u/s. 302/149 of the Code though he was convicted thereunder as well and further convicted the appellant Nageshwar Pandit u/s. 27 of the Arms Act and sentenced him to undergo rigorous imprisonment for one year, acquitting the accused Bharat Pandit @ Bhagirat Pandit of the charge u/s. 302/149 of the Code levelled against him vide the impugned judgment. The sentences were ordered to run concurrently. 6. Being aggrieved with the judgment and order of conviction and sentence recorded against them by the trial court, the accused persons perferred these four appeals. As all the appeals arose out of one and the same judgment and order they were heard together and are going to be disposed of by this common judgment. 7. The evidence of the prosecution witnesses has been discussed at length by the trial court in its judgment. However, it would be relevant and convenient to analyze, in brief, the testimony of ocular evidence. We would begin our exercise with discussion of medical evidence. 8. Dr. Nagendra Narayan Bhagat (P.W. 10) conducted autopsy on the dead body of the deceased Prabhash Mandal at about 3.00 P.M. on 29.6.1985. However, it would be relevant and convenient to analyze, in brief, the testimony of ocular evidence. We would begin our exercise with discussion of medical evidence. 8. Dr. Nagendra Narayan Bhagat (P.W. 10) conducted autopsy on the dead body of the deceased Prabhash Mandal at about 3.00 P.M. on 29.6.1985. He found following ante-mortem injuries on the person of the deceased (i) pellet injury of diameter of 3/4 cm with crust around 1/ 2" lateral right eye (ii) pellet injury at right alae of nose (iii) pellet injury of 1/2 cm diametre with crust 1" above right clavicle 1 1/2" right lateral from midline (iv) pellet injury of 1 cm diametre with crust 1" above left clavicle. On dissection were found extravasation of blood and pellet hole in blood vessle of neck passing deep to upper lobe of left lung and (v) pellet injury of 1/2 cm diametre with crust 1" below right sterno clavicular joint on chest right side. On dissection were found pellets lodged in intercostal muscle of third space. The pellets were recovered by the doctor. Non-production and non-exhibition of the pellets recovered from the body of the deceased is of no consequence. In the opinion of the doctor, the cause of death was shock and haemorrhage resulting from the aforesaid injuries and the time elapsed since death was said to be within 24 hours. All the aforesaid injuries were said to have been caused by firearm. 9. Adverting to ocular evidence, it is to be noticed that the informant (P.W. 5) said that while he alongwith his brothers Gurudeo and Prabhas (deceased) was planting cauliflowers in the field at about 8.00 A.M. on 29.6.1985 she-goat of Jagmohan strayed in his field, the deceased drove away the goat by pelting stone/dhela on it on account of which Jagmohan became enraged and he abused the deceased and called the other accused whereafter all the accused arrived at the scene with various lethal weapons. He described the weapon held by each and every accused person. He added in pursuance of order and instigation made by Jagmohan the deceased was shot at by Prakash Pandit, son of Bharat Pandit and Nageshwar Pandit from gun and pistol respectively and thereafter the deceased was in injured condition taken to B.M.C.H. where he succumbed to the injuries in course of treatment on the same day. 10. Narration made by P.Ws. 10. Narration made by P.Ws. 4, 6 and 7 regarding the occurrence is identical to that of P.W. 5 with the difference that whereas P.Ws. 4 and 7 described Maheshwar Pandit, Prakash Pandit and Nageshwar Pandit as shooters, P.W. 5 and P.W. 6 excluded Maheshwar Pandit from the category of shooters/assailants. P.W. 6 and 7 were working in their fields in the vicinity of the place of occurrence and they having heard alarm rushed to the scene of incident and witnessed the same, Ramswaroop Mandal (P.W. 1) reached the place of occurrence after the incident of firing was put to an end, however, he saw Prakash Pandit, son of Bharat Pandit, Maheshwar Pandit and Nageshwar Pandit fleeing away with firearms, the accused Maheshwar Pandit and Prakash Pandit having guns in their hands and Nageshwar Pandit having a pistol. Laxmi Devi (P.W. 8) like P.W. 1 reached the scene of the incident after her husband Prabhash Mandal had sustained fire arm injuries. Both P.W. 1 and P.W. 8 stated that the deceased had disclosed to them that Maheshwar Pandit and Prakash Pandit, son of Bharat Pandit had inflicted gun shot injuries on him. 11. The eye witnesses, viz., P.Ws. 4, 5, 6 and 7 appear to have made embellishment in their evidence by arraying Nageshwar Pandit as an assailant of the deceased after the death of Maheshwar Pandit, who alongwith Prakash Pandit, son of Bharat Pandit was assailant as per contents of the first information report and disclosure made by the accused to P.Ws. 1 and 8. No allegation of firing shot at the deceased was in the first information report made against Nageshwar Pandit. The accused Nageshwar Pandit was armed with pistol. The doctor found only pellet injuries on the person of the deceased. Pellet injuries could not have been caused by shot fired from pistol. It was just possible that after Maheshwar Pandit and Prakash Pandit shot at the deceased and after he fell down Nageshwar Pandit also opened fire but the shot so fired by him did not hit him. Be that as it may, Nageshwar Pandit cannot be said to be the assailant of the deceased. The evidence of P.Ws. 4, 5, 6 and 7 did not suffer from infirmity and taint save and except embellishment or improvement sought to be made by them by bringing Nageshwar Pandit in the category of assailant. Be that as it may, Nageshwar Pandit cannot be said to be the assailant of the deceased. The evidence of P.Ws. 4, 5, 6 and 7 did not suffer from infirmity and taint save and except embellishment or improvement sought to be made by them by bringing Nageshwar Pandit in the category of assailant. Embellishment or improvement sought to be introduced can by no stretch of imagination be said to have changed the nature of the case. Even if a prosecution witness changes his version, a part of his evidence which is reliable can be taken note of. The evidence of the ocular witnesses referred to above is otherwise trustworthy and reliable and the same must be accepted. 12. Evidence of all the material witnesses that is P.Ws. 1 to 8 is quite consistent and corroborative on the point of the deceased having been shot at by the accused Maheshwar Pandit and Prakash Pandit, son of Bharat Pandit. There is nothing in their cross examination to impeach their testimony. Medical evidence is also consistent with ocular evidence. The statement of the doctor (P.W. 10) in his cross examination that the injuries on the person of the deceased were possible by one shot could not instil suspicion in the prosecution version that two persons had shot at him. The doctor did not say the injuries could not have been caused by two shots fired by two persons. If two persons fired two shots on the deceased from the same direction he could have certainly sustained injuries like the ones found on his person. The aforesaid statement of the doctor made in his cross examination cannot instil even the slightest suspicion in the prosecution case that shots fired by both Maheshwar Pandit and Prakash Pandit hit the deceased causing multiple pellet injuries. Though Nageshwar Pandit was as per contents of the first information report armed with pistol, he was not said in the F.I.R. to have shot at and hit the deceased and he has been tried to be depicted as assailant after Maheshwar Pandit died. The allegation of opening fire upon the deceased levelled against Nageshwar Pandit does not fit in with medical evidence for, as observed above pellet injuries could not have been caused by him by opening fire from pistol and as such he was rightly exonerated of the charge u/s. 302 of the Code by the trial court. The allegation of opening fire upon the deceased levelled against Nageshwar Pandit does not fit in with medical evidence for, as observed above pellet injuries could not have been caused by him by opening fire from pistol and as such he was rightly exonerated of the charge u/s. 302 of the Code by the trial court. 13. It has been vehemently urged on behalf of the accused that the statement of P.W. 1 and P.W. 8 that the deceased disclosed to them that it was Maheshwar Pandit and Prakash Pandit, son of Bharat Pandit who shot at and caused injury to him cannot be believed and accepted to be dying declaration for, he had suffered such serious injuries that he must be unconscious and not in a position to speak. The victim sustained injuries at about 8.00 A.M. and he was immediately removed to the hospital where he died in course of treatment a few hours after the occurrence. P.W. 1 in cross examination at paragraph-18 stated that when he reached the scene of incident the deceased was conscious. His this statement in cross examination further strenghthened the prosecution case. He was not put suggestion that the deceased had sustained such serious injuries that he was not in a position to speak. P.W. 8 was not at all cross examined on the point of dying declaration of the deceased and the nature of injuries sustained by him. She was merely suggested that he was not in a position to speak. The other witnesses too were not put suggestion that the deceased was unconscious and he was not in a position to make any statement. The doctor (P.W. 10) was competent witness to say whether the deceased after sustaining injuries could have been in a position to speak, but he, too, was not cross examined on this point. On a perusal of the post-mortem examination report and the evidence of the doctor, it would transpire that though the injuries sustained by the deceased were serious, they did not affect larynx and vocal chord of the deceased and as such he could well be said to be in a position to make short speech for sometime even after infliction of injuries on him. It is quite possible that the deceased had not become unconscious immediately after sustaining pellet injuries on him and he could have made disclosure to P.W. 1 and P.W. 8 regarding the names of his assailants. Keeping in view the facts, circumstances and evidence available on records, the oral dying declaration of the victim made to P.W. 1 and P.W. 8 cannot be rejected. 14. P.W. 1 reached the place of occurrence after the deceased had sustained injuries and he merely saw Maheshwar Pandit (since dead), Nageshwar Pandit and Prakash Pandit, son of Bharat Pandit alongwith others fleeing away. He in his cross examination said that some other persons also arrived at the scene of the incident with him. He further stated that P.Ws. 3, 4, 5 and 6 others had been present at the place of occurrence. All the witnesses did not start for the place of occurrence from the one and the same place. The informant (P.W. 5) was there planting cauliflowers in his field alongwith his brothers. P.Ws. 6 and 7 were working in their fields in the vicinity of the scene of incident. The aforesaid statement of P.W. 1 made in his cross examination could not lead to an inference that all the examination could not lead to an inference that all the witnesses reached the place of occurrence alongwith him after the deceased had already been fired upon. 15. Non mention of the names of P.W. 1 and P.W. 8 and oral dying declaration of the deceased made before them as well as the factum of the deceased being conscious and in a fit state of mind to make disclosure of the names of his assailants in the first information report cannot pave the ground for throwing away the entire prosecution case. It may be observed that the first information report is not encyclopaedia containing all minute details. 16. It has been submitted that the witnesses were related to and interested in the victim and in absence of corroboration by some independent evidence, their testimony cannot be made the basis of conviction. All the witnesses examined in the case do not seem to be close relatives of the deceased. P.W. 1 and P.W. 8 are, of course, related to and interested in the deceased. All the witnesses examined in the case do not seem to be close relatives of the deceased. P.W. 1 and P.W. 8 are, of course, related to and interested in the deceased. However, the settled principle of law is that the evidence of the prosecution witnesses cannot be discarded merely on account of their being related to and interested in the victim. The evidence of the witnesses examined in the case before us has after close and cautious scrutiny been found to be above board and wholly reliable. 17. It has been contended that the clinic of Dr. R.P. Choudhary situated midway the place of occurrence and B.M.C.H. and natural conduct of the informant and others would have been to take the victim immediately to Dr. Choudhary, but he was taken to B.M.C.H. after covering a longer distance and delay in extending medical facility to the deceased might also have contributed to his death. The contention is non-meritous. The condition of the deceased was so serious as to warrant his removal to Medical College Hospital where better medical facility was available and he was rightly taken there instead of clinic of Dr. Choudhary. 18. Suresh Dubey (P.W. 9), Sub-Inspector of Police, Nath Nagar Police Station after getting fardbeyan of P.W. 5 from the police outpost of B.M.C.H. took up investigation and proceeded to the place of occurrence and inspected the same at about 5.00 P.M. on the date of incident itself. He found cauliflowers planted in a portion of the field of the deceased, which was the scene of the incident. He stated he did not find at the place of occurrence any remarkable thing/ article which could have been seized as material exhibit. 19. It has also been contended that it has come in the evidence of eye witnesses that there was profused bleeding from the injuries inflicted on the person of the deceased and so blood must have fallen on the ground but no blood was found at the place of occurrence by the Investigating Officer (P.W. 9) and he stated that no material worth seizure was found there and all this rendered the prosecution case doubtful. The contention cannot be accepted. The deceased was lifted from the place of occurrence and taken to B.M.C.H. soon after he was shot at and injured. The people had started pouring in at the scene of incident. The contention cannot be accepted. The deceased was lifted from the place of occurrence and taken to B.M.C.H. soon after he was shot at and injured. The people had started pouring in at the scene of incident. Blood might have vanished under the feet of the people. Even if some blood stain remained there on the ground the Investigating Officer could not notice and seize the same. This would reflect laches, negligence and lack of vigilance on the part of the police officer. Absence of blood at the place of occurrence or its non seizure by the Investigating Officer is not such an infirmity as to render the prosecution case suspicious nor can the prosecution case be thrown over board on account of defective investigation. Reliance may be placed on the cases of Ramswaroop and Others V/s. State of U.P., 2000 0 SCC(Cri) 484 & Allarakho Mansoori V/s. State of Gujarat, 2002 3 SCC 57 . 20. From the evidence on record, it would transpire that Gurudeo, Kishore and some other persons had also been at the place of occurrence. They were not examined by the prosecution. There may be many a reason for their non-examination. We need not probe into this matter. It is a matter of common experience that in villages where murders and other serious offences are committed in a sequel to group rivalry or faction and feud existing among the people independent villagers seldom get ready to depose in the case for fear that giving evidence might invite wrath of the assailants/culprits. It is by new well settled that it is not incumbent upon the part of the prosecution to examine each and every witness who might be conversant with the facts of the case. It is quality and not quantity that matters. The only test is whether prosecution has brought home the charges with evidence available on records. In the case, we are in seisin of there is ample cogent and reliable evidence to prove the charges levelled against the accused persons. 21. The doctor who initially examined and treated the victim at B.M.C.H. was not examined nor was brought on records the Bed-Head ticket or treatment chart. But on that account alone the evidence of the doctor who conducted autopsy or prosecution case cannot be viewed with suspicion. 21. The doctor who initially examined and treated the victim at B.M.C.H. was not examined nor was brought on records the Bed-Head ticket or treatment chart. But on that account alone the evidence of the doctor who conducted autopsy or prosecution case cannot be viewed with suspicion. From the inquest report, it would be crystal clear that the victim was hospitalised inasmuch as O.D. Slip number as well as bed number is prominently mentioned therein. All this would reveal that the victim was first hospitalised and treated at B.M.C.H. and he died in course of treatment. 22. The first information report was drawn up and the case was registered on the date of occurrence itself, however, the first information report appears to have been put up before the Chief Judicial Magistrate, Bhagalpur on 2.7.1985. According to the learned counsel for the accused the first information report ought to have been transmitted to the the court within 24 hours but in the present case delay of two days has been committed rendering the document suspicious and in a number of decisions rendered by the Supreme Court such delay in despatch of the first information report to the Magistrate concerned has been held to be fatal to the prosecution case. The Investigating Officer (P.W. 9) was not asked about the time of despatch of the first information report from the police station and its receipt in the court. In absence of material on record, it is not possible to ascertain as to when the F.I.R. was got received in the office of the Magistrate and whether it was received mere earlier but was put up before the Magistrate later on. The fact remains that the fardbeyan was recorded promptly at B.M.C.H. soon thereafter investigation started and no opportunity was available to the informant to make concoction, embellishment and improvement. The first information report is otherwise reasonable and trustworthy and as such delay, if any, in despatch thereof to the Magistrate cannot be said to be fatal to the prosecution case. Technicality cannot be allowed to frustrate the ends of justice vide the case of Munshi Prasad and Others V/s. State of Bihar, 2002 0 SCC(Cri) 175. 23. It would appear that the charges against the accused were framed on 21.4.1995. The charge u/s. 302 was initially framed against Prakash Pandit, son of Bharat Pandit alone. Technicality cannot be allowed to frustrate the ends of justice vide the case of Munshi Prasad and Others V/s. State of Bihar, 2002 0 SCC(Cri) 175. 23. It would appear that the charges against the accused were framed on 21.4.1995. The charge u/s. 302 was initially framed against Prakash Pandit, son of Bharat Pandit alone. Subsequently, in course of trial, an amendment/ alteration of charges was made and the charges u/s. 302 of the Code and sec. 27 of the Arms Act were framed against the accused Prakash Pandit and Nageshwar Pandit on 29.6.1999. It has been urged with vehemence that alteration of charges during trial caused prejudice to the accused. But there is nothing on records nor could the learned counsel appearing on behalf of the accused bring to our notice any material to show prejudice caused to the accused in their defence. Amendment or alteration of charges is permissible in law if the court is satisfied it is necessary to do so in the interest of justice. Be that as it may, alteration of charges in the present case caused no prejudice at all to the accused. 24. All the accused-appellants excepting Prakash Pandit, son of Bharat Pandit were convicted under Ss. 302/149 of the Code. It has been contended on their behalf with persuasiveness that no overt act or specific role was assigned to them nor is there any material to show that they were members of unlawful assembly the common object of which was to eliminate the deceased and all the members of the assembly were aware of the common object of the unlawful assembly and the deceased was shot at in prosecution of that common object and merely because the accused were armed with lethal weapons they could not be said to be members of such unlawful assembly and it is quite possible that they went to the place of occurrence as onlookers or they went there for providing safety and security to Jagmnohan pandit and as such their conviction u/s. 302 with aid of sec. 149 cannot be sustained. The contention seems to be pregnant with meaning and substance. 25. In charge u/s. 34 of the Code, there must be active participation in the commission of criminal act. 149 cannot be sustained. The contention seems to be pregnant with meaning and substance. 25. In charge u/s. 34 of the Code, there must be active participation in the commission of criminal act. But liability arises u/s. 149 by reason of membership of the unlawful assembly with a common object and there may be no active participation at all in perpetration of crime. Direct proof of common object or common intention is seldom available and such common object or common intention can only be inferred from the proved facts. There is nothing on record to suggest that accused persons convicted under Ss. 302/ 149 were members of the unlawful assembly the common object of which was to kill the deceased and he was killed in prosecution of that common object, nor were the accused put question u/s. 313 Cr.P.C. regarding their being members of the unlawful assembly and the deceased having been eliminated in prosecution of common object of the assembly. Besides the eye witnesses did not even speak of the names of all the accused being the members of the unlaweful assembly. P.W. 1 and P.W. 8 did not name the accused other than Maheshwar Pandit and Prakash Pandit, son of Bharat Pandit. The same was the case with the deceased while making disclosure to P.W. 1 and P.W. 8. P.W. 4 named only Maheshwar Pandit, Nageshwar Pandit and Prakash Pandit. P.W. 5 named all the accused facing trial plus Maheshwar Pandit. P.W. 6 omitted the names of Ramswaroop Pandit and Bharat Pandit. P.W. 7 named only four accused omitting the names of Kishore Pandit, Ramswaroop Pandit, Bharat Pandit and Prakash Pandit, son of Siya Pandit. Thus ocular evidence is highly discrepant and inconsistent in regard to all the accused being the members of the unlawful assembly. Under the circumstance, none of the accused can be convicted under Ss. 302/149 of the Code. 26. It has further been submitted that conviction of the accused Nageshwar Pandit under Ss. 302/149 is illegal, bad and unsustainable also because no charge thereunder was framed against him and he was charged u/s. 302 simpliciter. Under the circumstance, none of the accused can be convicted under Ss. 302/149 of the Code. 26. It has further been submitted that conviction of the accused Nageshwar Pandit under Ss. 302/149 is illegal, bad and unsustainable also because no charge thereunder was framed against him and he was charged u/s. 302 simpliciter. The settled principle of law is that non framing of charge in itself would not vitiate conviction if no prejudice is cuased to the accused vide Willie (William) Slaney V/s. State of M.P., AIR 1956 SC 116 , Lalan Rai and Others V/s. State of Bihar, 2003 0 SCC(Cri) 301 and Bhagwan Yadav and Others V/s. State of Bihar, 2003 4 PLJR 674 . However, we need not elaborate this point in detail for, conviction of all the accused with aid of sec. 149 is going to be set aside for the reasons stated in the preceding paragraphs. 27. Conviction with aid of sec. 149 havig been held to be bad and non maintainable we would like to consider whether the accused before us could be convicted with aid of sec. 34 of the Code. As observed above for attracting sec. 34, participation of the accused in some way or other with common intention of committing the crime is necessary and even if no charge is framed u/s. 34 alongwith the substantive section on the basis of materials on record a person may be convicted provided no prejudice is caused to the accused in his defence. Reliance may be placed on the case of Yogendra Rawani and Others V/s. State of Bihar, 1984 0 CrLJ 386 . In the present case exchange of hot words and quarrel initially ensued between Jagmohan Pandit and the deceased and his brothers. The other accused including Nageshwar Pandit arrived at the scene in pursuance of call made by Jagmohan Pandit. Subsequently, Jagmohan Pandit ordered and instigated his associates to kill the deceased whereupon Maheshwar Pandit and Prakash Pandit opened fire causing injuries to him. There is also consistent evidence that Nageshwar Pandit was armed with pistol and he had also resorted to firing. Subsequently, Jagmohan Pandit ordered and instigated his associates to kill the deceased whereupon Maheshwar Pandit and Prakash Pandit opened fire causing injuries to him. There is also consistent evidence that Nageshwar Pandit was armed with pistol and he had also resorted to firing. The materials on records did establish that both Jagmohan Pandit and Nageshwar Pandit participated in commission of crime and they shared common intention with the main assailants to kill the deceased and as such they are liable to be convicted u/s. 302/34 of the Code and they are accordingly convicted thereunder and sentenced to undergo rigorious imprisonment for life each. However, in view of the facts and circumstances attending to the case and in consistency and discrepancy in the evidence of eye witnesses in regard to participation of other accused in the commission of crime the accused other than Jagmohan and Nageshwar cannot be held liable u/s. 302/34 of the Code. 28. The facts and circumstances of the case of Dukmochan Pandey and Others V/s. State of Bihar, AIR 1998 SC 40 relied upon by the accused are entirely different from those of the case at hand and as such the case cited at the bar is of no avail to the accused and on that basis it is not possible to hold that the accused Nageshwar Pandit cannot justifiably be convicted u/s. 302/149 and he can at best be said to be liable u/s. 325/149 of the Code. 29. The accused Jagmohan Pandit also stood convicted under Ss. 302/109 of the Code. The contention put forward on his behalf is that there was no cogent and reliable evidence to warrant his conviction thereunder. There is no merit and substance in the contention. There is consistent evidence of P.Ws. 5 and 6 that the deceased was shot at in pursuance of order and instigation made by Jagmohan Pandit. Averment to this effect found mentioned in the first information report as well. Though, P.Ws. 4 and 7 spoke of presence of Jagmohan Pandit at the time and place of occurrence they did not in specific term said that he had ordered the other accused to kill the deceased. The contents of the first information report considered together with unimpeachable evidence of P.Ws. 5 and 6 and other materials constituting circumstantial evidence did establish that Jagmohan Pandit is liable for abetting commission of murder of the deceased. The contents of the first information report considered together with unimpeachable evidence of P.Ws. 5 and 6 and other materials constituting circumstantial evidence did establish that Jagmohan Pandit is liable for abetting commission of murder of the deceased. He was rightly convicted and sentenced under Ss. 302/109 of the Code. 30. In view of what has been stated and observed above conviction and sentence u/s. 302 of the Code and sec. 27 of the Arms Act recorded against Prakash Pandit, son of Bharat pandit and conviction and sentence under Ss. 302/109 of the Code passed against Jagmohan Pandit are maintained and confirmed. Both Jagmohan Pandit and Nageshwar Pandit are also convicted u/s. 302/34 of the Code and Nageshwar Pandit is sntenced to undergo rigorous imprisonment for life thereunder and his conviction and sentence u/s. 27 Arms Act is upheld. As Jagmohan Pandit stood convicted and sentenced under Ss. 302/109, no separate sentence is awarded to him u/s. 302/34 of the Code. Conviction and sentence under Ss. 302/149 of the Code recorded against the accused Jagmohan Pandit, Prakash Pandit, son of Siya Pandit, Kishore Pandit, Ramswaroop Pandit and Nageshwar Pandit are set aside and they are acquitted thereunder. 31. With motification in conviction and sentence as indicated above, Cr. Appeal Nos. 13, 44 and 79 are dismissed and Cr. Appeal No. 27 of 2001 is allowed. The accused Prakash Pandit, son of Bharat Pandit is in jail custody. Let him serve out the remainder of sentence. The accused Jagmohan Pandit and Nageshwar Pandit are on bail. Their bail bonds are cancelled. Let them be directed to surrender in the court below within four weeks for serving out sentences awarded to them failing which coercive steps shall be taken against them for procuring their surrender/arrest. Kishore Pandit, Prakash Pandit, son of Siya Pandit and Ramswaroop Pandit are discharged from the liability of their respective bail bonds and they are set at liberty. Mridula Mishra, J. 32 I agree.