Judgment P.N. Y ADAV, J.:-Both the appeals related to one and the same judgment and order dated the 20th and the 23rd January, 2001 passed by the 5th Additional Sessions Judge, Aurangabad in Sessions Trial No.212 of 1981 arising out of Haspura P.S. Case No. 6(6) 1980 and hence they were heard together and are going to be disposed of by this common judgment. 2. The deceased Dr. Ram Kumar Singh and Laxmi Singh of village Mauari situated within the jurisdiction of Haspura Police Station of Aurangabad district were in the evening at about 6.00-6.15 P.M. on 13.6.1980 returning home from Panchrukhia market. No sooner had they arrived at the place of occurrence situated at a distance of about 300 yards from the aforesaid market enroute to their house then certain miscreants exploded bombs causing the death of Dr. Ram Kumar Singh and thereafter, they caught hold of Laxmi Singh and cut his neck causing his death about 50 yards away from the dead body of Dr. Ram Kumar Singh. The informant Ram Sumiran Sharma (P.W 1) who had been at Panchrukhia More for purchasing vegetables after hearing sound of explosion rushed to the scene of incident alongwith Awadesh Sharma (P.W.2), Haridwar Singh (P.W. 9), Ramashray Singh (P.W. 6), Brij Kumar Sharma (P.W.3). They saw Dr. Ram Kumar Singh lying dead in a pool of blood and they also saw the miscreants catching hold of Laxmi Singh and cutting his neck. They all chased the miscreants but they could not be apprehended and they made good escape and fled away opening fire, however, the shots so fired by them hit none. The witnesses claimed to have seen and identified all the six miscreants (accused-appellants) by their face, who cut the neck of the deceased Laxmi Singh and caused his death. One of the miscreants left his shoes at the place of occurrence while fleeing away from there. It we as stated that in the evening on the same day at about 4.00PM.- 4.30 PM. the accused Ram Keshwar Singh, Mukhiya of Dhanni was seen alongwith some unknown persons at Panchrukhi More near a tea stall and at that time Ramkeshwar Singh pointing his finger to the deceased Dr. Ram Kumar Singh and his clinic was getting him identified by the unknown miscreants. 3. the accused Ram Keshwar Singh, Mukhiya of Dhanni was seen alongwith some unknown persons at Panchrukhi More near a tea stall and at that time Ramkeshwar Singh pointing his finger to the deceased Dr. Ram Kumar Singh and his clinic was getting him identified by the unknown miscreants. 3. The motive attributed behind the commission of crime was that Ramkeshwar Singh happens to be the leader of his caste and one of his caste men was earlier killed and on that account tension prevailed between the caste of the accused and that of the deceased and to avenge the killing of his casteman the accused Ramkeshwar Singh alongwith others hatched up a criminal conspiracy and in pursuance thereof the deceased were eliminated. 4. With these accusations the informant Ram Sumiran Sharma (P.W.1) got his statement recorded at about 8.00 PM. on the date of the incident itself by Chandra Bhushan Sharma (P.W.15), Officer-in-charge of Haspura Police Station on the basis of which the first information report (Ext. 9) was drawn up and the instant case was registered against the accused Ram Keshwar Singh and. six unknown msicreants. 5. Investigation was taken up by Chandra Bhushan Sharma (P.W. 15) immediately after recording the first information report on 13.6.1980. He visited the place of occurrence and inspected the same. He prepared inquest reports (Exts. 5 & 5A) in respect of the dead bodies of the deceased Dr. Ram Kumar Singh and Laxmi Singh. He seized blood, splinters of bomb and a pair of shoes from the place of occurrence where Dr. Ram Kumar Singh was lying dead and blood and two .live cartridges from the place where the dead body of Laxmi Singh" was found and prepared seizure list (Exts. 10 &10/A) in presence of Tapeshwar Singh (PW 8), Chandeshwar Singh (P.W.11). Ram Prasad Singh (P.W.7) and Bijay Kumar Singh (P.W. 10) who also put their signature thereon, caused the dead bodies to be sent to mortuary with Chaukidar Laxman Yadav (P.W. 12) and constable Shamshul Haque, where Dr. S.J. Rahman (P.W. 4) held autopsy on the dead bodies of the deceased and prepared postmortem examination reports) Ext s. 2 & 2/1), pressed the services of tracker dog, took steps for putting the suspects on Test Identification Parades, which were held by Mr. Prem Kumar Roy, Judicial Magistrate (P.W.5) on 8.8.1980 and 25.8.1980. 6. S.J. Rahman (P.W. 4) held autopsy on the dead bodies of the deceased and prepared postmortem examination reports) Ext s. 2 & 2/1), pressed the services of tracker dog, took steps for putting the suspects on Test Identification Parades, which were held by Mr. Prem Kumar Roy, Judicial Magistrate (P.W.5) on 8.8.1980 and 25.8.1980. 6. In consequence of his transfer P.W.15 made over charge of investigation to Sabir Ahmad (P.W.13) who after obtaining sanction for prosecution of the accused under section 3/4 of Explosive Substances Act, collecting postmortem examination reports and complying with legal formalities submitted the chargesheet as the investigation was already complete and finally the trial commenced after commitment. 7. The defence was that of total denial and false implication. It was pleaded that the deceased were killed by certain unknown miscreants and none could see and identify the killers of the deceased and the accused persons were falsely implicated out of group and caste rivalry. 8. The court below after appreciating and scanning the evidence brought on records found and held all the six accused appellants guilty and convicted them under section 302 read with sections 149 and 120B of the Indian Penal Code (hereinafter referred to as the Code) and sentenced them to undergo rigorous imprisonment for life under each of section 302 read with sections 149 and 120 of the Code and section 3 of Explosive Substances Act and also to pay a fine of Rs. 5000/- each which if realised and directed to be paid to the widows of the deceased vide the impugned judgment and order. 9. Being aggrieved with the judgment and order of conviction and sentence passed against them the appellants preferred these appeals. 10. 5000/- each which if realised and directed to be paid to the widows of the deceased vide the impugned judgment and order. 9. Being aggrieved with the judgment and order of conviction and sentence passed against them the appellants preferred these appeals. 10. That the incident leading to the commission of murder of the deceased at 6.00-6.15 P.M. on 13.6.1980 on Panchrukhia road stood weir proved by the evidence of Brij Kishore Sharma (P.W.3) and Ramashray Singh (P.W.6), the eye witnesses, the lodging of the first information report with promptitude at about 8.00 P.M., that is, within less than two hours of the;' occurrence at the police station situated at a distance of six miles by Ramsumiran Sharma (P.W.1) though he at trial did not support the prosecution version and was declared hostile by the prosecution, the objective findings in the form of recovery of dead bodies, seizure of blood, cartridges, splinters of bombs, a pair of shoes left by one of the miscreants from the place of occurrence, preparation of inquest reports (Exts. 5/a and 5/b) by the Investigating Officer (P.W.15) in presence of witnesses at the place of occurrence and the medical evidence brought on records. Moreover, commission of murder of the deceased Dr. Ram Kumar Singh by explosion of bomb and that of Laxmi Singh by infliction of injuries on his person with sharp cutting instruments at the time and place of occurrence has not been disputed /denied by the accused. 11. Though, the evidence brought on records has been spelt out in the impugned judgment and order in detail, it would be relevant and convenient to refer to the evidence with brevity for proper consideration and appreciation of rival contentions of the parties. Dr. S.J. Rahman (P.W.4) conducted autopsy on the dead body of the deceased Dr. Ram Kumar Singh and Laxmi Singh at about 8.00 A.M. and 8.20 A.M. on 14.6.1980. Dr. S.J. Rahman (P.W.4) conducted autopsy on the dead body of the deceased Dr. Ram Kumar Singh and Laxmi Singh at about 8.00 A.M. and 8.20 A.M. on 14.6.1980. He found the following injuries on the person of the deceased Laxmi Singh: (i) Sharp cut wound on the anterior aspect of the neck extending towards the left side 5" x 2" up to the vertebral column, cutting the trachea oesophagus and on left side carotid artery and jugular vein; (ii) Sharp cut wound 4" x 1" x bone deep on the left side of the forehead through which brain matter was peeping out; (iii) sharp cut wound 3" x 1" x bone deep on the right occipital prominence; (iv) Sharp cupt wound 2" x 1" x bone deep on the right shoulder anteriorily. On opening the skull cavity it was found to be full of blood clots and serum. In the opinion of the doctor, all the aforeasid injuries were caused by sharp cutting weaposn and they were sufficient in the ordinary course of nature to cause death and the time elapsed since death was within 12-18 hours. 12. In course of postmortem examination on the dead body of Dr. Ram Kumar Singh the doctor (P.W. 4) found his whole face and upper part of left side of the chest wall to be charred and black. There was irregular rugged type of wound on the upper chest wall on left side encroaching into the neck left side. On dissection, the doctor found six splinters embeded and the same were taken out and preserved. The left carotid artery and jugular vein were found to be completely torn out and the left clavicle fractured. The injuries referred to above were in the opinion of the doctor caused by explosive substances and the cause of death was shock and haemorrhage resulting from the aforesaid injuries and the time elapsed since death was within 12-18 hours. 13. The medical evidence thus also testified to the manner in which and the weapons with which the deceased were done to death. The medical evidence in regard to the time elapsed since death was also in tune with the prosecution version regarding the time of occurrence leading to the commission of murder of the deceased. The evidence of the Doctor suffers from no infirmity and lacuna. The medical evidence in regard to the time elapsed since death was also in tune with the prosecution version regarding the time of occurrence leading to the commission of murder of the deceased. The evidence of the Doctor suffers from no infirmity and lacuna. Nothing has been elicited in his cross examination to render his testimony and postmortem examination reports (Exts. 2 & 2/1) doubtful. The criticism that there is discrepancy in medical evidence and the eye witness account of infliction of injuries on the person of the deceased Laxmi Singh inasmuch as almost all the witnesses spoke of infliction of assault by all six seven accused on his neck but the doctor found only one injury on neck and three injuries on other parts of his body which do not fit in with the number of blows inflicted by several miscreants is devoid of merit and force and the same must be overruled. A perusal of evidence of the doctor and the postmortem examination report would reveal that all the injuries on the person of Laxmi Singh were on the neck or quite near and close to the neck such as forehead, occipital prominence and shoulder. There is nothing unnatural and improbable in evidence of the witnesses who broadly described the portion of the body being hit by the miscreants as the neck. Obviously they were observing infliction of assault from certain distance and so it appeared to them that blows were showered on the neck even though they were being inflicted on neck and a little away, such as forehead, occipital prominence and shoulder. So medical evidence cannot be said to be inconsistent with ocular evidence. Moreover, the settled principle of law is that if inconsistency or discrepancy occurs in the medical evidence and eye witness account of the incident it is the ocular evidence which is to be preferred and accepted. It would not be conducive to the administration of criminal justice to discard the testimony of an eye witness merely on the strength of the opinion expressed by the doctor and his findings. On this point, reliance may be placed on the cases of Ramanand Yadav Vs. Prabhu Nath Jha and others 2003 (4) PLJR 224 (S.C.), State of U.P. Vs. Harban Sahay and another 1998 (6) SCC 50 , Ramdeo and another Vs. State of U.P.1995 Supp (1) SCC 547 and State of U.P. Vs. On this point, reliance may be placed on the cases of Ramanand Yadav Vs. Prabhu Nath Jha and others 2003 (4) PLJR 224 (S.C.), State of U.P. Vs. Harban Sahay and another 1998 (6) SCC 50 , Ramdeo and another Vs. State of U.P.1995 Supp (1) SCC 547 and State of U.P. Vs. Krishan Gopal and another A.I.R. 1988 SC 2154. 14. After having been established that the incident leading to the cold blooded and dastardly murder of the deceased was put to an end by the miscreants at the time and place of occurrence and in the manner alleged by the prosecution the next most important question for consideration is who caused the death of the deceased. All the accused-appellants were jointly charged for committing murder of the deceased in prosecution of their common object and in pursuance of criminal conspiracy hatched . up by them all. Brij Kishore Sharma (P.W.3), Ramashray Singh (P.W.6) and Ramsumiran Sharma (P.W. 1) were claimed by the prosecution to be eye witnesses to the occurrence. 15. Brij Kishore Sharma (P. W. 3) supported the prosecution case by stating on oath that while he and P.W. 6 were taking tea at Panchrukhia sound of explosion was heard and so they immediately rushed to the scene of incident where they found Dr. Ram Kumar Singh lying dead in a pool of blood and a little away from there they saw Laxmi Singh being cut and killed with sharp edged weapons by certain miscreants who were chased by them but could not be apprehended and fled away opening fire. P.W. 3 added he identified the assailants of Laxmi Singh by their face and later on he identified one of them, that is, the accused Subedar Mahto at Test Identification Parade P.W. 6 Ramashray Singh corroborated P.W.3 by stating that while' he was at Panchrukhia market he heard explosion of bomb and soon he went to the place of occurrence where he saw Dr. Ram Kumar Singh and Laxmi Singh lying dead and he also happened to see 6-7 unknown miscreants fleeing away from the place of occurrence and though he and others chased them they succeed in fleeing away. It is in his evidence that he identified two of the miscreants (Kameshwar Mahto and Jamuna Mahto) on Test Identification Parade. Ram Kumar Singh and Laxmi Singh lying dead and he also happened to see 6-7 unknown miscreants fleeing away from the place of occurrence and though he and others chased them they succeed in fleeing away. It is in his evidence that he identified two of the miscreants (Kameshwar Mahto and Jamuna Mahto) on Test Identification Parade. Though P.W. 3 and P.W. 6 supported the prosecution version in regard to the incident leading to the commission of murder of the deceased having been put to an end at the time and place of occurrence and in the manner alleged by the prosecution, they in the court deliberately chose not to recognise the accused whom they had identified on Test Identification Parade held by Mr. Prem Kumar Roy, Judicial Magistrate (P.W. 5) and on that account they were declared hostile by the prosecution and their attention was drawn to the Identification of the accused by them' and the statement made by them before the Magistrate who contradicted their statements made in the court which would be referred to while discussing the evidence of the Magistrate. 16. The informant (P.W. 1) preferred to bid a good bye to the prosecution case. He stated in his examination-in-chief that in the evening on the fateful day he had been at Panchrukhia market for making purchase of vegetables and he happened to see the dead bodies of the deceased Dr. Ram Kumar Singh and Laxmi Singh at the place of occurrence. He also admitted to have participated in the Test Identification Parade and to have identified there at one of the killers of Laxmi Singh but he said that he could not remember his name nor did he recognise the accused Kameshwar Mahto in the court, whom he had identified at the Test Identification Parade before the Magistrate (P.W. 5), His attention was drawn to his statement made before the Investigating Officer (P.W. 15) as well as identification of the accused Kameshwar. Mahto by him at identification parade and the statement made by him before the Magistrate (P.W. 5). Mahto by him at identification parade and the statement made by him before the Magistrate (P.W. 5). The Investigating Officer (P.W. 15) contradicted P.W. 1 by stating that he had stated before him during investigation that be hearing sound of explosion rushed to the palce of occurrence where Ramashray Singh (P.W. 6), Haridwar Singh (P.W. 9) and others had also arrived and they all had chased the miscreants but they fled away and made good escape opening fire. 17. Mr. Prem Kumar Roy, Judicial Magistrate (P.W 5) fully supported the prosecution case in regard to identification of the accused Subedar Mahto, Kameshwar Mahto and Jamuna Mahto by P.W. 1, P.W 3 and P.W 6 as the miscreants involved and participants in the commission of murder of the deceased Laxmi Singh. He stated that the aforesaid three accused Subedar Mahto, Kameshwar Mahto and Jamuna Mahto . and .others, to wit Janardan Mahto, Bali Mahto, Ramashish Mahto and Krishna Mahto were put on test identification parades on 8.8.1980 and 25.8.1980 conducted by him and P.W 1 Ramsumiran Sharma and P.W 3 Brij Kishore Sharma had identified the accused Kameshar Mahto and Subedar Mahto respectively before him on test identification parade. It is in the evidence of P.W 5 that P.W 1 had told him that he had identified Kameshwar Mahto at the time he started fleeing away after cutting the neck of the deceased Laxmi Singh while P.W 3 had said to him that he had identified the accused Subedar Mahto as the miscreant inflicting dagger blow on Laxmi Singh. It may be observed that P.W 1 Ram Sumiran Sharma appears to have knowingly and purposely made wrong statement in paragraph-10, of his deposition that he had identified Subedar Mahto while he was cutting the neck of Laxmi Singh with a dagger though as a matter of fact he had identified Kameshwar Mahto at the test identification parade. The Magistrate (P.W. 5) further stated that PW. 6 Ramashray Singh identified the accused Kameshwar Mahto and Jamuna Mahto on test identification parade saying to him, that he had identified them while they were inflicting Katta blows on the deceased Laxmi Singh and were cutting his neck• The Magistrate carrying out test identification proceedings prepared test identification charts (Memos) which were marked Exts. 3 & 3/1. 18. 6 Ramashray Singh identified the accused Kameshwar Mahto and Jamuna Mahto on test identification parade saying to him, that he had identified them while they were inflicting Katta blows on the deceased Laxmi Singh and were cutting his neck• The Magistrate carrying out test identification proceedings prepared test identification charts (Memos) which were marked Exts. 3 & 3/1. 18. A careful and cautious scrutiny the evidence of the Magistrate (P.W. 5) makes it abundantly clear that he held Test Identification Parades observing all care, caution, rules and procedures required to be followed in test identification proceedings. His evidence suffers from no infirmity or lacuna at all. Though he was cross- exmained his testimony remained unshaken. His evidence must, therefore, be accepted and acted upon. The evidence of P.W. 1, P.W. 3 and P.W. 6 on identification by them of the accused Kameshwar Mahto, Subedar Mahto and Jamuna Mahto before the Magistrate (P.W. 5) cannot be discarded on account of their deliberate and intentional failure to identify them in the court and their being declared hostile by the prosecution. P.W. 1 did support the prosecution case as eye witness before the Investigating Officer but in the court he changed his statement just to help the accused. He turned hostile to the truth. In view of a catena of decisions rendered by the apex court and High Courts it is now well settled that owing to a portion of evidence not being consistent with the statements given under section 161 Cr.P.C. and the witness having been declared hostile, evidence of such a witness cannot be rejected in its entirety and the portion of evidence of such witness, which stands in favour of the prosecution or the accused may be accepted after the same is subjected to scrutiny and is found to be inspiring confidence. 19. The Magistrate (P.W. 5) was a responsible public servant and independent witness not at all inimical to the accused. His evidence as observed is above board. His statement that P.Ws. 1, 3 and 6 had identified the accused Kameshwar Mahto, Yamuna Mahto and Subedar Mahto on test identification parade before him must be accepted. The witness did not deliberately identify them in the court after having been gained over by them with intent to illegally helping them so that they' might go scot free. In the case of Ramnath Mahto Vs. The witness did not deliberately identify them in the court after having been gained over by them with intent to illegally helping them so that they' might go scot free. In the case of Ramnath Mahto Vs. State of Bihar 1996 S.C.C. (Cri) 726 too the witnesses had identified the appellant-accused on test identification parades before the Magistrate but he did not recognize him in the court, however, the Magistrate contradicting the witness supported the prosecution version. The apex Court maintained and upheld conviction and sentence of the appellant. 20. It has been vehemently submitted that since the witnesses identified the accused on test identification parade but they did not recognize them in the court such identification not being in the nature of substantive piece of evidence cannot provide safe and trustworthy evidence for basing conviction thereon. In the case of Budhsen and another Vs. State of U.P. the Magistrate did not take precautions to eliminate suspicion or unfairness and to reduce the chance of testimonial error and to ensure that the persons required to identify an accused should have had no opportunity of seeing him after commission of the crime and before identification parade and he made general and vague note in test identification chart in respect of the manner in which the witnesses identified the accused at the time of commission of crime and he mentioned the steps taken by the jail authorities for conducting identification proceedings but he did not record his own remarks and he also went beyond his jurisdiction and interrogated the witnesses for eliciting other facts or to require them to make statement beyond mere identification and the evidence of the Magistrate as well as his Memo of identification obviously suffered from inherent infirmity and lacuna and besides that one of the identifying witnesses was not produced for examination at trial and the evidence of the witnesses identifying the accused was also not found to be worthy of credence. In the case of Vijay n Vs. In the case of Vijay n Vs. State of Kerala 1999 SCC (Cri.) 378 the photograph of the accused was shown to the witness (P.W. 3) before the test identification parade and further before she was entered the sub jail to identify the accused some body had told her to identify the tallest man shown in the parade and as such the test identification was discarded by both the Sessions Court and the High Court and conviction was based on identification of the accused by the said witness for the first time in the court after several years. None of the two cases referred to above having facts and circumstances entirely different from those of the case at hand is of any help to the accused-appellants before this Court. 21. The contention that the incident took place on 13.6.1980 but test identification proceedings were carried out after commission of inordinate delay on 8.8.1980 and 25.8.1980 and as such test identification parades lost their credibility and weight and the accused cannot be convicted on the basis of such identification too has no substance and the same must be rejected. It has come in the evidence of the Investigating officer (P.W. 15) that the accused Kameshwar Mahto, Subedar Mahto and Yamuna Mahto had surrendered in the court on or a little before 25.7.1980. It is also in the evidence of P.W. 3 that he had participated in the test identification after about fortnight. No inordinate delay can be said to have occurred in holding the test identification parades on 8,8.1980 and 25.8.1980 when the accused had surrendered only near about 25.7.1980. In the case of Anil Kumar Vs. State of U.P. (2003) S.C.C. (Cri) 770 test identification parade was held 47 day after the appellant was arrested while in the case of Brij Mohan Vs. State of Rajasthan 1994 SCC. (Cri) 527 the test identification proceedings were carried out after three months. In the case of Daya Singh Vs. State of Haryana (2001) SCC (Cri) 553 the test identification parade was held after about 8 years as the accused was not arrested for a period of about seven and a half years and test identification was held six months after arrest. In all the cases cited above delayed identification of the accused on the test identification parades was held to be legal and valid and the same was accepted. 22. In all the cases cited above delayed identification of the accused on the test identification parades was held to be legal and valid and the same was accepted. 22. The instant case is in respect of gory and heart-rending incident leading to commission of cold blooded murder of the two co-villagers on the road adjacent to a market. The witnesses saw the miscreants catching hold of and killing the deceased Laxman (sic-Laxmi) Singh by inflicting blows with sharp edged instruments and they even chased them to some distance. The circumstances in which the deceased was murdered on the road near Panchrukhia market must have impressed upon the mind of the identifying witnesses the facial expression of the assailants. That impression regarding facial expression of the assailants could not have disappeared from the mind of the witnesses within two months or so. On account of such delay in holding of the test identification parades no infirmity can be said to have cropped up in the judgment impugned. 23. In the facts, circumstances and evidence discussed above the charge that the accused Subedar Mahto, Kameshwar Mahto and Jamuna Mahto alongwith threefour others killed the deceased Laxmi Singh by causing injuries on his person with sharp edged weapons must be said to have been proved beyond reasonable doubt. The contention that the circumstance and evidence brought on records against the accused were not put to them while they were being examined under section 313 Cr.P.C. in as much as they were not asked about specific assault inflicted by them on the deceased Laxmi Singh nor was question put to them in regard to their identification by the witnesses at test identification parade and due to this defect and lacuna in examination of the accused, their conviction cannot be sustained is non-merritous and unacceptable. The statements of the accused under sections 313 Cr.P.C. were recorded twice, that is, on 8.2.1986 and 25.9.1999. A perusal of their statements would make it crystal clear that almost all incriminating circumstances and evidence were put to the accused. The only infirmity in examination of the accused under section 313 Cr.P.C. is that they were not asked about their identification by the witnesses at the test identification parade but on that account alone the entire prosecution case cannot be thrown over board nor can the accused be said to be entitled to acquittal. 24. The only infirmity in examination of the accused under section 313 Cr.P.C. is that they were not asked about their identification by the witnesses at the test identification parade but on that account alone the entire prosecution case cannot be thrown over board nor can the accused be said to be entitled to acquittal. 24. However, there is no cogent and reliable evidence, direct or circumstantial against the accused Ramkeshwar Singh, Lala Koeri @ Lala Mahto and Ramdhyan Verma to establish the charges against them. The learned State counsel has very fairly and frankly admitted that there was iota of evidence against Lala Koeri and RamdhYal Verma. None of the three accused persons, namely, Ramkeshwar Sinigh, Lala Koeri and Ramdhyan Verma was put on Test Identification Parade nor did their names surface in the evidence of any of the prosecution witnesses though P.W. 3 merely suspected the accused Ramkeshwar Singh to be involved in the commission of crime and he named him as such in the first information report. Legal and reliable evidence to bring home the charges levelled against the accused Ramkeshwar Singh, too, is conspicuous by its absence from the records. The only incriminating circumstance against him is that the tracker dog after smelling the plastic shoes recovered and seized from the place of occurrence went to his house. The shoes were never examined and compared with the feet of the accused Ramkeshwar Singh after getting them put on by him to ascertain the probability or otherwise of the shoes belonging to him. Those shoes were not produced and exhibited. There is also no evidence at all to show when, where and in whose presence to dog was made to smell the shoes. From the evidence on records, it would appear that the shoes were seized from the place of occurrence in course of inspection of the spot which would mean that the shoes were placed before the dog later on but there is no evidence to show when and by whom the shoes were put up before the tracker dog. Again the result might not be just and accurate and the dog might be mis - guided if it was not allowed to smell the shoes at the spot where they were lying without having been touched and removed there from by some person. Again the result might not be just and accurate and the dog might be mis - guided if it was not allowed to smell the shoes at the spot where they were lying without having been touched and removed there from by some person. From the materials on records, it would appear that the tracker dog was not made to smell the shoes in the original condition and shape they were lying at the place of occurrence. It would be dangerous and hazardous in the interest of justice to base conviction on such evidence of dog tracking. It is also settled law that evidence of dog tracking, even if admissible, is ordinarily not of much weight. In holding this view reliance may be placed on the case of Abdul Razzaque Murtaza Dafadar Vs. State of Maharashtra reported in A.I.R. 1970 SC 283. The State counsel has also con(4eded to the evidence of dog tracking against the accused Ramkeshwar Singh being too weak to form the basis of conviction in absence of some other corroborating evidence. There is admittedly no other corroborating evidence on records. 25. Another circumstance sought to be established to fasten guilt on the accused Ramkeshwar Singh was the statement of Haridwar Singh (P.W. 9). recorded under section 161 Cr.P.C. to the effect that at about 4.30 P.M. on the date of occurrence Ramkeshwar Singh alongwith 5-6 unknown persons was sitting on a Bench and taking tea near Panchrukhia More and Ramkeshwar Singh was pointing finger towards the clinic of Dr. Ram Kumar Singh, who was sitting there. Though, P.W. 9 while deposing denied having made such statement during investigation on account of which he was declared hostile by the prosecution, assuming that he made such statement to the Investigating Officer (P.W15) and Ramkeshwar Singh pointing finger to the clinic of the deceased Dr. Ram Kumar Singh got him identified to the unknown persons accompanying him that by itself cannot prove that he was involved in the incident leading to the commission of murder of the deceased nor can that give rise to an inference that he had hatched up a criminal conspiracy along with others to eliminate the victims. 26. Ram Kumar Singh got him identified to the unknown persons accompanying him that by itself cannot prove that he was involved in the incident leading to the commission of murder of the deceased nor can that give rise to an inference that he had hatched up a criminal conspiracy along with others to eliminate the victims. 26. The motive impelling the accused as alleged in the first information report was that a man belonging to the caste of the accused Ramkeshwar Singh was earlier killed and on that account Ramkeshwar Singh being the leader of his castemen hatched up a criminal conspiracy to eliminate the deceased and they were killed in pursuance there of for, he might be suspecting involvement and participation of the deceased and their castemen in the commission of murder of his casteman earlier but nothing was brought on the records to prove the alleged motive as well as conspiracy. The settled principle of law is that when there is direct, cogent and reliable evidence to prove the commission of offence the motive loses its importance and it has no role to play. In the case at hand the evidence on records has, as observed above, proved beyond the reasonable doubt that atleast the accused Kameshwar Mahto, Subedar Mahto and Jamuna Mahto are the killers of the deceased Laxmi Singh even if their involvement and participation in the hurling of bomb on the deceased Dr. Ram Kumar Singh as well as hatching up of criminal conspiracy is not proved and the other three accused persons, namely, Ramkeshwar Singh, Lala Koeri and Ramdhyan Verma are going to be given benefit of dobt. 27. It is to' be observed that evidence or circumstance to establish conspiracy having been hatched up by the accused is conspicuous by its absence from the records. There is also no evidence to snow that the accused before us had hurled bomb on the deceased Dr. Ram Kumar Singh. None of the Witnesses claimed to have seen any of the accused present at the place where bomb was lobbed causing the death of Dr. Ram Kumar Singh. The charges under section 120B of the Code and section 3 of the Explosive Substances Act could not be proved against the accused appellants. Since the charges against the accused Lala Ram Keshwar and . Ram Kumar Singh. The charges under section 120B of the Code and section 3 of the Explosive Substances Act could not be proved against the accused appellants. Since the charges against the accused Lala Ram Keshwar and . Ramdhyan could not be brought home beyond the reasonable doubt and they are going to be extended the benefit of doubt and acquitted the accused Kameshwar Subedar and Yamuna can no longer be said to be liable under section 302 read with section 149 of the Code as well as under section 3 of the Explosive Substances Act and their conviction and sentence there under cannot be sustained and they deserve to be acquitted there under. However, there is. ample evidence to establish that they played active role in inflicting assault with sharp cutting weapons on the deceased Laxmi Singh and they obviously shared common intention to kill him. Though they were not charged under section 302 read with section 34 of the Code for committing murder of Laxmi Singh in furtherance of their common intention they were charged with committing his murder and they cross-examined the witnesses and so they can well be convicted under section 302 read with section 34 of the Code. Non framing of charge caused no prejudice to their defence. In the facts and circumstances their conviction under section 302 read with section 34 of the Code without charge having been framed there under cannot be vitiated in law. 28. In view of what has been stated and observed in the preceding paragraphs the accused Ramkeshwar Singh, Lala Koerri @ Lala Mahto and Ramdhyan Verma who are appellants in Cr. Appeal No. 38 of 2001 are given benefit of doubt and they are acquitted of the charge levelled against them. They are discharged from the ability of their respective bail bonds. The accused Kameshwar Mahto, Subedar Mahto and Yamuna Mahto who are appellants in Cr. Appeal No. 70 of 2001 are also acquitted of the charges under section 302 read with sections 149 and 120B of the Code and section 3 of Explosive Substances Act. However, they are convicted under section 302 read with section 34 of the Code and are sentenced to undergo rigorous imprisonment for life each there under. 29. The accused-appellant Subedar Mahto is in jail custody. Let him be directed to serve out the remainder of sentence. However, they are convicted under section 302 read with section 34 of the Code and are sentenced to undergo rigorous imprisonment for life each there under. 29. The accused-appellant Subedar Mahto is in jail custody. Let him be directed to serve out the remainder of sentence. The accused-appellants Jamuna Mahto and Kameshwar Mahto are on bail. Their bail bonds are cancelled. Let them be directed to surrender themselves before the trial court within three weeks failing which coercive steps shall be taken against them for procuring their surrender/arrest. 30. With modification in conviction and sentence as indicated above Cr. Appeal No. 70 of 2001 is dismissed. Cr. Appeal No. 38 of 2001 stands allowed. MRIDULA MISHRA, J.:-I agree.