Judgment I.P.Singh and P.N.Yadav JJ. 1. Since all these appeals arise out of the same judgment and order, they have been heard together and are being disposed of by this common judgment. 2. All the appellants have been convicted u/s. 302/34 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for life. 3. The case of the prosecution, in short, is that on 2.2.1993 at about 8.00 A.M. Sushila Devi wife of Chandrika Thakur was going closely by the side of the wall of the house of informant Balmiki Pd. Singh, the brother-in-law of the informant Usha Devi was sitting there. The informant objected Sushila Devi and asked her to go through the path and Sushila Devi started abusing her and went to her house giving threats, Sushila went to her house and instigated her sons against her brother-in-law. The brother-in-law of the informant, went to Khaira Bazar after his meal. Her brother-in-law came back at about 6.00 P.M. and when he reached near Chandanpur canal situated at a distance of 30 to 40 yards from his house, he noticed Mani Thakur, Munna Prasad, Chhathu Ram and Satya Narain Prasad present there. They were armed with Lathi and Farsa. Marri Thakur gave sword blow on the head of Balmiki Pd. who started fleeing away and entered in the house. The accused Sanjay Hajam, Hare Ram Hajam, Bhukhal Koiri, Dewraj, Vinod, Chandrika, Munna Hajam, Roshan Koeri and Munna Koiri also arrived. The accused were armed with Dab, Gupti, sword, Farsa and Lathi etc. When Urmila Devi objected them from entering into the house, Mani Thakur gave sword blow to her neck, Bhukhal Kamkar gave Dab blow on her head and Munna Koiri assaulted by Dab on her back. She fell down and died. Then the accused persons entered in the house and took away two boxes containing clothes and ornaments. They also took away utensils etc. Hearing the alarm raised, the witnesses arrived and saw the occurrence. Later on 10.2.93 Balmiki Prasad also died at Chapra Hospital where he was being treated. After having information police came and Fardbeyan of Usha Devi was recorded and on that basis F.I.R. was drawn up. After completion of investigation charge sheet was submitted against the accused persons. Accordingly, cognizance was taken and the case was committed to the court of sessions for trial. After having information police came and Fardbeyan of Usha Devi was recorded and on that basis F.I.R. was drawn up. After completion of investigation charge sheet was submitted against the accused persons. Accordingly, cognizance was taken and the case was committed to the court of sessions for trial. Ultimately the trial concluded with the result as stated above. 4. The appellants pleaded not guilty and stated that they had been falsely implicated in this case due to enmity. 5. Prosecution in support of its case examined altogether six witnesses, P.W. 1 is Usha Devi (informant), P.W. 2 is Tulsi Prasad, father of the deceased, Balmiki, P.W. 3 is Ram Dulari Devi, wife of P.W. 2, P.W. 4 is Dr. Ajit Kumar, P.W. 5 is Dr. Niranjan Kumar Keshav and P.W. 6 is Yugal Kishore, Investigating Officer of this case. 6. The defence has also examined four witnesses, D.W. 1 is Dr. Vijay Kumar Singh, a private doctor, D.W. 2 is Krishna Sharma, D.W. 3 is Nagina Lal and D.W. 4 is Vijay Narayan Sinha. 7. P.W. 1, the informant has fully supported the case of the prosecution as stated in her Fardbeyan. According to her on the date of occurrence that is 2.2.1993 at 8.00 A.M. her sister-in-law, Sushila Devi w/o Chandrika Thakur was going along the wall. Her brother-in-law objected that why she was going adjacent to his wall. she started abusing and threatened them that she would get them killed by her son and went to her house. When at 6.00 P.M. in the evening, her brother-in-law was coming back from Khaira and reached near Chandanpur canal, the accused Mani Thakur, Subhash Thakur (whose trial was separated), Munna Prasad, Chhathu Ram and Satya Narain were armed with Lathi, Farsa etc. intercepted him, Mani Thakur gave sword blow on the head of her brother-in-law who thereupon fled and went inside the house. intercepted him, Mani Thakur gave sword blow on the head of her brother-in-law who thereupon fled and went inside the house. Some persons namely Sanjay Hajam, Devraj, Vinod Kumar, Chandrika Kumar, Hare Ram Hajam, Munna Hajam, Roshan Koiri also followed him, Bhukhal was also with them who was armed with Dab, Satya Narain was having Gupti, Urmiia Devi tried to stop them from entering into the house but Mani Thakur gave Talwar blow on her neck, Bhukhal gave Dab blow on her head and Munna Koiri gave Dab blow on her back, Urmiia Devi fell down and died there, Hare Ram and Shree Ram took away two boxes from the room whereas Vinod and Chandrika took away utensils, Devraj was standing at the door with lathi. She has proved her signature and Fardbeyan (Ext. 1). In cross examination she has given a detailed account of place of occurrence. She has admitted that the appellants did not enter in the room to assault her brother-in-law when Urmiia stopped them at the door. 8. P.W. 2 Tulsi Prasad has stated that Mani Thakur gave sword blow to Balmiki Prasad on neck, Subhash Thakur assaulted him by Dab on back, Munna Harijan also gave Lathi blow on his back, Satya Narain gave Gupti blow and Chhathu Ram assaulted him by Farsa, Bhukhal Koiri gave Dab blow on the back and Munna Koiri gave Dab blow on the head. The victim was rushing towards home and accused were chasing and assaulting him. According to him the wife of Balmiki Prasad was assaulted by Mani Thakur, Munna Hajam, Subhash Thakur, Bhukhal Koiri, Roshan Koiri, Munna Koiri by sword, Dab etc. P.W. 3 Ram Dulari Devi wife of Tulsi has given the similar statement as stated by P.Ws. 1 and 2. She has stated that Balmiki was assaulted by Satya Narain, Mani Hajam, Subhash whereas Urmila Devi was assaulted by Mani Thakur, Roshan, Bhukhal, Munna Koiri etc. by sword, Dab, Farsa etc. 9. P.W. 4, Dr. Ajit Kumar has stated that on 3.2.93 he conducted postmortem of the dead body of Smt. Urmila w/o Balmiki Prasad. He found the following ante-mortem injuries on the body: "(i) Sharp cut injury on the left of neck extending to other side of cervical spine to the angle of mandible 5" x 3" muscle deep. 9. P.W. 4, Dr. Ajit Kumar has stated that on 3.2.93 he conducted postmortem of the dead body of Smt. Urmila w/o Balmiki Prasad. He found the following ante-mortem injuries on the body: "(i) Sharp cut injury on the left of neck extending to other side of cervical spine to the angle of mandible 5" x 3" muscle deep. This injury cut the large vessel of left side of neck i.e. charotid artery and jugular vain and 3rd inter vertebra disc of cervical region. (2) Sharp cut injury lower part of left ear size 1" x 1". (3) Sharp cut injury slightly above injury no. (1) size 2" x 1/2" x bone deep. (4) Sharp cut injury over forehead left side 2" x 1/2" x bone deep" In the opinion of the doctor, the death was caused due to shock and haemorrhage per injuries caused by sharp edged weapons. P.W. 5, Dr. Niranjan Kumar Keshva has stated that on 3.2.92 at 11.40 he had examined Balmiki Prasad s/o Tulsi Prasad and found the following injuries on his body: (i) Incised wound on scalp Rt. side fronto parietal area 5" x 1/2" x scalp deep. (ii) Incised wound Rt. temporal region 1 1/2" x 3/4" x scalp deep. (iii) Incised wound over Rt. Shoulder semi circular 2" x 1/2" x muscle deep. (iv) Complain of pain all over body. (v) Lacerated wound Rt. ear pinna 1/2" x 1/8". The doctor found all the injuries simple in nature caused within 24 hrs. by sharp cutting weapon. According to him injury nos. (i)(ii) and (iii) may be caused by fall on the ground and injury no. (v) may be caused by blunt portion of a sword. P.W. 5 has further stated that he had performed post mortem on the dead body of above Balmiki Prasad Singh on 10.2.93 and found the following injuries (antemortem) on the dead body: (i) one stitched wound on scalp;, Rt. side on fronto parietal area 5" in length. (ii) One stitched wound on scalp Rt. side on temporal area 1 1/2" in length. (iii) One stitched wound over Rt. shoulder joint circular 2" in circumference. (iv) One stitched wound Rt. ear pinna 1/2" in length. According to the doctor death was due to after effects of injury nos. (i) & (ii). 10 P.W. 6, investigating officer of this case has stated that on 3.2.93 at 2.00 hrs. (iii) One stitched wound over Rt. shoulder joint circular 2" in circumference. (iv) One stitched wound Rt. ear pinna 1/2" in length. According to the doctor death was due to after effects of injury nos. (i) & (ii). 10 P.W. 6, investigating officer of this case has stated that on 3.2.93 at 2.00 hrs. he made Saneha entry and proceeded for Chandanpur village alongwith A.S.I. Ram Pravesh Singh, Havildar Jaleshwar Singh, Amawas Prasad and armed force. At 1.30 A.M. he reached Chandanpur and recorded Fardbeyan of Ushan Devi. He has further stated that he sent the Fardbeyan for registering the case at PS. and subsequently inspected the place of occurrence. He has given the detailed description of the place of occurrence. He also recovered the dead body of Urmila and sent the same for postmortem examination after preparing inquest report. According to him he handed over the part of investigation to S.N. Dubey who later on submitted charge sheet. 11. Learned counsel appearing on behalf of appellants Munna Koiri, Bhukhal Koeri and Mani Thakur has submitted that the Fardbeyan of the informant is not established and is not consistent, as such, only inference that can be drawn is that informant had not seen the occurrence. It has also been submitted that in the first information report it has been stated that many persons came at the time of occurrence and even P.W. 2 has stated in his evidence that many persons came to see the occurrence but none of the independent witnesses and F.I.R. witnesses has been examined by the prosecution and no explanation has been given for this and non-examination of material witesses has prejudiced the case of defence. He has submitted that even the Chaukidar has not been examined who had informed the police. In this regard he has relied on the decision in the case of Khatri Hemraj Amulakh V/s. The State of Gujrat, 1972 3 SCC 671 . The next submission of the learned counsel is that when the investigating officer came the deceased Balmiki was in the house and though he had no severe injury but why he did not give his Fardbeyan and Usha Devi a lady who had not seen the first occurrence which occurred at canal gave her Fardbeyan which was recorded by the police. As such it appears that the deceased was assaulted somewhere else and the First Information Report is concocted report. He has also submitted that the police came on that date of occurrence but Fardbeyan was recorded next day at 1.30. So, there is inordinate delay in lodging the First information report. Further it has been submitted that first Saneha was entered by the police but that Saneha was not produced in the court. As such it also falsifies the case that no Saneha was produced before the court below which was the earlier message about the occurrence. He has stated that RW. 1 is a lier and her statement cannot be relied upon. She had not gone to place of first occurrence as such story of prosecution suffers from infirmity. The witnesses have stated that for the whole night the police stayed in the house of the informant and he prepared the papers, as such, the entire case is doubtful. In this regard he has relied on a decision in the case of Ram Narain Singh V/s. State of Punjab, AIR 1975 SC 1727 . The last submission of the learned counsel is that the doctor did not find injury on the person of the deceased as per ocular version and thus the case of prosecution is not corroborated with the evidence of the doctor. The injuries sustaied by the deceased as alleged is not consistent with the report of the medical expert. In this regard he has relied on a decision in the case of Lakshmi Singh and Others etc. V/s. State of Bihar AIR 1976 SC 2263 . 12. On the other hand Mr. Ashwani Kr. Sinha appearing on behalf of the State has vehemently opposed the aforesaid submission of the learned counsel for the appellants and submitted that there is no delay in recording the first information report as the occurrence first took place on 2.2.93 in the evening and the investigating officer came on the same night at 1.30 A.M. He also recorded the Fardbeyan at 1.30 A.M. on that very day, so first information report was lodged some hours after the occurrence. So far non-examination of witnesses is concerned, he has relied on a decision in the case of Prem Chand Prasad alias Nandlal V/s. The State of Bihar, 1998 1 PLJR 154 in which it was held that even if material witness is not examined the case of prosecution cannot be discarded since other witnesses have also given the similar facts. He has submitted that even if assuming that though RW. 1 did not see the first occurrence at Nahar there is no dispute that she had seen the murder of Urmila. As such she was competent person to give her Fardbeyan. 13. In this case P.W. 1, the informant, who is a competent witness on the factum of assault on the deceased Urmila who instantaneously fell down and succumbed to her injuries has fully established the factum of occurrence which took place at her house. Apart from that P.W. 1 the father of the deceased Balmiki and RW. 3 mother have also seen the occurrence and are competent witnesses on the factum of occurrence at Nahar and at the house. They have also supported the case of the prosecution. However, about the assault on Balmiki she has stated that she saw the accused persons on the canal which was 20 to 30 yards from her house. She has also stated that she saw her brother-in-law Balmiki being assaulted. She also saw that the appellants chased Balmiki up to the house as such she identified all the appellants. Even if details of assault on Balmiki would not have been seen by her since she was at a distance from the first place of occurrence but only on this ground her deposition with regard to assault on Urmila cannot be discarded. So far non-examination of witnesses in this case is oncerned, although the witnesses assembled at the place of occurrence but they were not examined. It is well known that now a days nobody other than relatives comes forward to depose in such cases where co-villagers/neighbours are involved, due to fear and unnecessary harassment in the prolonged litigation. On this point learned counsel for the State has also pointed out about a decision of the apex court in which it was held that some of the witnesses could have stated the same version if examined. On this point learned counsel for the State has also pointed out about a decision of the apex court in which it was held that some of the witnesses could have stated the same version if examined. As such,, this submission of the learned counsel that no independent material witness have been examined, has no force. It would appear from the record that the public prosecutor applied beore the trial court for issuance of bailable warrant of arrest against other prosecution witnesses which shows that the alleged witnesses were not inclined to come to the court to depose even bailable warrant of arrest was issued against them. The point raised about non-production of Saneha entry is not vital in this case if there was some doubt on Saneha entry the defence should have requested the court to get them produced alongwith the Chaukidar. As such, non-production of the Saneha entry etc. in the court in no way affects the Fardbeyan of Usha on which basis first information report was drawn up. From the deposition of the investigating officer (P.W. 6) it appears that he received information about the occurrence at 10 A.M. and accordingly he made entry and proceeded to the village alongwith other police officer and constables and reached there at about 1.30 A.M. and recorded the statement of Usha Devi. As such there is hardly any delay in lodging the first information report. As far as contention of the learned counsel for the appellant that why Fardbeyan of Balmiki was not recorded and instead the police chose to record the statement of Usha Devi (P.W. 1) even though Balmiki was having simple injury, but there is no legal binding on this fact that first information report should be drawn up only on the statement of an injured. It is true that the statement of Balmiki would have given more details about the assault on him at Nahar where the first occurrence took place but as far as later part of story is concerned, RW. 1 was more competent since she was watching the occurrence and Balmiki was fleeing to save his life. That apart after he entered into the house and then Urmila was assaulted and killed. She was assaulted at her Darwaja by the appellants. 1 was more competent since she was watching the occurrence and Balmiki was fleeing to save his life. That apart after he entered into the house and then Urmila was assaulted and killed. She was assaulted at her Darwaja by the appellants. Not only this Balmiki had two sharp edges injuries on his head and it was likely that he might not be in a position to narrate the details of the incident. 14. On the point of discrepancy between the injury found and alleged assault as claimed by defence, to be more specific, learned counsel has pointed out that there was no mark of any assault on the back of the deceased Urmila. But it was alleged that Bhukhal gave a Dab blow on her back. It was also pointed out that wound on the person of the deceased Balmiki was found stitched when postmortem was held on his dead body. On this point it may be stated that several armed accused persons arrived at the house of the informant and assaulted Urmila. Obviously eye witnesses Usha and P.W. 3 who were nearby saw the accused persons assaulting Urmila. The particular details of sharp cutting weapons which caused injury and on which part of the body of Urmila is not accepted to be correctly narrated by these two witnesses, P.Ws. 1 and 3. The trial court in its judgment has compared the medical report, occurrence and the deposition of these witnesses about the assault and arrived at the conclusion that there was only one variation relating to arm used in assault by accused persons. Of course P.W. 2 has exaggerated about the number of injury and assault and yet has deposed vividly about the fact that who caused injury and by which weapon. The injury found on the person of two victims get corroborated. As far as the submission of the learend counsel about the stitch found on the wounds of injured Balmiki who later died is not unnatural. The medical examination of Balmiki by the doctor was done at the stage of his admission in the hospital. Later on the junior doctors or other medical staff must have put some stitch on his wound which was incised injury during the course of treatment. 15. The medical examination of Balmiki by the doctor was done at the stage of his admission in the hospital. Later on the junior doctors or other medical staff must have put some stitch on his wound which was incised injury during the course of treatment. 15. Learned cousel has also doubted presence of P.W. 2 as he works at Chapra and had arrived at the time of occurrence in the village. According to learned counsel, it was not possible for him to come from Chapra at the time of occurrence itself. But it is apparent that every day he used to go to Chapra as he was Advocates Clerk at Chapra and it was natural that in the evening he will return to his house before sunset specially when it was winter evening. Therefore he could be termed as chance witness and his deposition cannot be discarded on this point alone. It is also important that there is nothing to show that the families were on inimical term and there was bitter relation between them so as to get the appellants falsely implicated in this case if they actually did not committ the crime. 16. Thus the court below after appreciatiion of evidence so adduced rightly came to the conclusion and convicted the appellants u/s. 302/149 of the Indian Penal Code. 17. On conviction learned counsel appearing on behalf of Chhathu and Satya Narain has submitted that both the appellants are full brothers and are from other village and though they were appeared with Farsa and Lathi but these two appellants did not chase the deceased, Balmiki and they are not the assailants of the deceased. Learned counsel for the appellant Munna Prasad has submitted that this appellant was armed with Lathi only and witnesses have stated that he was not having sharp cutting weapon as such there is no specific allegation against this appellant. But from the material on record and evidence so adduced it appears that these appellants had also participated in the crime and they had common intention and formed unlawful assembly who committed offence as such being member of that assembly are liable for the crime and guilty for the offence even if there is no overt act attributed to them which resulted in death of the deceased Balmiki and Urmila. We do not find any reason to interfere with the judgment under challenge. We do not find any reason to interfere with the judgment under challenge. The conviction and sentence awarded by the court below are hereby confirmed. In the result these appeals are dismissed.