Judgment BALKRISHNA JHA, J. 1. Both the appeals arise out of the judgment and order dated 15th of March, 2000 passed in Sessions Trial No. 249 of 1998 by the then learned Additional Sessions Judge-IV, Nalanda at Biharsharif, so they were heard together and are being disposed of by this common judgment. 2. The appellant, Mishri Gope alias Mishri Yadav in Criminal Appeal No. 202 of 2000 has been convicted under Section 302 of the Indian Penal Code and sentenced to R.I. for life. The appellant, Ramautar Yadav @ Bedku Gope, in Criminal Appeal No. 134 of 2000 has been convicted under Section 307 of the Indian Penal Code and sentenced to R.I. for 10 years. Both the appellants have further been convicted and sentenced to R.I. for three years each under Section 27 of the Arms Act. The sentences awarded to the appellants, have been, however, ordered to run concurrently. 3. The case of the prosecution is that on 25.3.1997 at 6 p.m., the informant, Rameshwar Prasad @ Ramnandan Prasad, PW 15 alongwith his co-villagers, Balmukund Prasad, PW 11, Ram Sharan Yadav, PW 14, Raghubir Yadav, PW 12, Rajendra Yadav, PW 13, Brahamdeo Yadav, PW 4, Umesh Yadav, PW 10 and the deceased, Bisheshwar Yadav were going to the house of Basudeo Yadav, mukhiya, after playing holi. When they reached near the house of the accused-appellant, Mishri Gope, situated at N.H. 31, the appellant Mishri Gope with rifle ordered his men to kill them as they belonged to the group of Basudeo Yadav. At this, the accused-appellant, Ramautar Yadav, opened fire from his rifle which caused injury in the leg of Umesh Prasad, PW 10. Then the accused- appellant, Mishri Yadav, fired his rifle which hit on the chest of Bisheshwar Yadav, Son of Gajo Yadav. On hulla and sound of firing, nearby people rushed there whereupon the accused-appellants also fired at them. The associates of the accused-appellant, Mishri Yadav, namely, Hari Narain, Ramashish Yadav, Bullu Yadav, Ramsharan Yadav, Suresh Yadav, Sahdeo Yadav, Shiv-balak Yadav, Bali Yadav, Chandradeep Yadav, Ajay Yadav, Mithilesh Prasad and Raj Kumar Yadav, resorted to brick batting at the prosecution party as a result of which the head of the informant was broken and blood started oozing out. On the assemblage of the persons, both the accused-appellants terrorised them by firing and all made good escape from there. On the assemblage of the persons, both the accused-appellants terrorised them by firing and all made good escape from there. Thereafter both the unconscious injured were taken to Government Hospital, Giriak and from there they were referred to Biharsharif for treatment. The motive behind the occurrence has been alleged to be the existing old enmity in between Basdeo Yadav and the accused side. The prosecution party had played holi with the group men of Basdeo Yadav and so the accused persons committed the alleged occurrence. 4. On the same day, i.e.. 25.3.1997 at 7.30 p.m., Md. Farooque, S.I. of Giriak Police Station recorded the fardbeyan of the informant, Rameshwar Prasad @ Ramnandan Prasad, son of Late Ramdhani Prasad of Village-Giriak Ghora Katora, P.S.-Giriak, District-Nalanda in Government Hospital, Giriak. On the basis of his fardbeyan (Ext. 3) a formal FIR (Ext. 4) was drawn up and a case was registered under Sections 307, 147, 148, 149, 337 and 324 of the Indian Penal Code and Section 27 of the Arms Act, against 15 accused persons, namely, 1. Mishri Yadav, 2. Ramawatar Yadav, 3. Hari Yadav, 4. Pallu Yadav, 5. Ramsaran Yadav, 6. Suresh Yadav, 7. Shahdeo Yadav, 8. Shiv Balak Yadav, 9. Bali Yadav, 10. Chandradip Yadav, 11. Raj Kumar Yadav, 12. Ajay Yadav, 13. Chandar Yadav, 14. Nandi Yadav and 15. Mithilesh Yadav. The injured, Bisheshwar Yadav, died in course of his treatment in P.M.C.H., Patna and thereafter Section 302, IPC. was added in this case vide order dated 29.3.1997. Police switched over to the investigation. On completion of investigation, police submitted charge-sheet against all the FIR named 15 accused persons under the aforesaid sections. The investigation was kept pending against two co-accused, Ajay Yadav and Ramashish Yadav. Accordingly, cognizance of the offence was taken against 15 accused persons and the case of the said two accused was separated vide order dated 20.12.1997. Out of the fifteen accused persons, thirteen accused persons were absconding, so, their case was separated from the case of the accused Mishri Yadav and Ramawatar Yadav vide order dated 13.4.1998. The case of both the accused Mishri Yadav and Ramawatar Yadav was committed to the Court of Sessions on 27.4.1998, they were tried and convicted in the aforesaid manner. 5. The defence of the appellants is that they are quite innocent and have been falsely implicated in this case. 6. The case of both the accused Mishri Yadav and Ramawatar Yadav was committed to the Court of Sessions on 27.4.1998, they were tried and convicted in the aforesaid manner. 5. The defence of the appellants is that they are quite innocent and have been falsely implicated in this case. 6. At trial, the prosecution examined altogether 19 witnesses in support of its case. Out of them PW 4 Brahmdeo Yadav, PW 7, Rajo Yadav, PW 10, Umesh Prasad, the injured, PW 11, Balmukund Prasad, PW 12, Raghubir Yadav, PW 13, Rajendra Yadav, and PW 14, Ramsharan Yadav, are the eye-witnesses to the occurrence. The witnesses, PW 1, Md. Ekramuddin, PW 2/ Anshu Sah, PW 3, Shashi Bhushan Prasad, PW 5, Satyendra Prasad, PW 6, Munna Sah, PW 8, Dr. Krishna Prasad and PW 9 Binod Sah, are the hostile witnesses and nothing material could be elicited in their cross-examination. PW 15, Rameshwar Prasad @ Ramnandan Prasad is the informant of this case. He has stated that on 25.3.1997 at 6 p.m. when he was going to his house alone from Giriak Market, one brick bat hit his head near choumuhani but he had not seen any person firing firearms. He was also declared hostile and nothing substantial could be extracted in his cross- examination. He proved his signature on his fardbeyan (Ext. No. 1). PW 16 is Dr. Jagdish Sharma who examined the injured, Umesh Prasad, PW 10, the informant, Rameshwar Prasad @ Ramnandan Prasad, PW 15 and the deceased, Bisheshwar Yadav. PW 17, Md. Abrar Khan is the I.O. of this case. PW 18 is Dr. Ashok Kumar Yadav who conducted autopsy on the dead body of the deceased, Bisheshwar Yadav and PW 19 is Dr. Md. Eqbal Ahmad who examined the deceased, Bisheshwar Yadav. 7. The evidence of PW 16, Dr. Jagdish Sharma is that on 25.3.1997 he was posted as Medical Officer Incharge of Giriak Hospital. On the same day at 6.30 p.m. he examined Bisheshwar Yadav, son of Gajo Yadav and found the following injuries on his body : (1) Multiple lacerated circular penetrating wound four to five in number on the part of the chest in scattered form. The patient condition was low due to the pressure of mob and the condition of the patient was not properly examined and was referred to the Sadar Hospital, Biharsharif, P.M.C.H., Patna. The patient condition was low due to the pressure of mob and the condition of the patient was not properly examined and was referred to the Sadar Hospital, Biharsharif, P.M.C.H., Patna. The Doctor did not give any opinion regarding the nature and the cause of the injury and suggested to obtain the same from the referred place. According to him the age of the injuries was within one hour. On the same day at 6.45 p.m. he examined the injured Umesh Prasad, son of Mangal Yadav and found the following injuries on his body : (1) One lacerated wound with profused bleeding on the left lower leg around the ankle joint due to the pressure of take mob and the condition of the patient, he was referred to the Biharsharif Sadar Hospital-P.M.C.H. and was not properly examined. The Doctor did not give any opinion regarding the nature and cause of the injuries and suggested to obtain the same from the referred place. On the same day at 7 p.m. he examined Rameshwar Prasad, son of Ramdhani Prasad, the informant, PW 15 and found the following injuries on his body : (i) Lacerated wound 3" x 1/2" upto bone deep on the left side of the head. According to him the injury was simple in nature caused by hard and blunt. (ii) Bruise with painful swelling 1-1 /2" x 1" on the right side of head which was simple in nature caused by hard and blunt object. There was complain of pain on the body. He fqund the age of the injuries within two hours. He proved the injuries of all the three persons prepared in carbon process in the register (Ext. Nos. 2, 2/A and 2/B). In cross-examination he has stated that condition of the injured Umesh Prasad was alike to the condition of the injured Bisheshwar Yadav. The evidence of PW 19, Dr. Md. Ekbal Ahmad is that on 25.3.1997 he was posted as a Resident Surgeon Officer in P.M.C.H., Patna. On that day at about 10.40 p.m. he examined Bisheshwar Yadav, son of Gajo Yadav and prescribed medicine for him and admit him. X-ray of the chest was done. The evidence of PW 19, Dr. Md. Ekbal Ahmad is that on 25.3.1997 he was posted as a Resident Surgeon Officer in P.M.C.H., Patna. On that day at about 10.40 p.m. he examined Bisheshwar Yadav, son of Gajo Yadav and prescribed medicine for him and admit him. X-ray of the chest was done. In spite of motivation the attendant fell and refused to arrange the medicine and blood so that the operation could be done on 26.3.1997 at 11 a.m. he was again requested for blood and medicines but he again refused and after three reminders at 12.05 p.m. the patient was sent out for the operation theatre and was sent to the Emergency Ward for awaiting operation. At 5.40 the Surgeon on duty at that time took him in operation theatre and he was operated. During the operation the patient suffered and had cardio-respiratory arrest from which he could not be reversed in spite of all measures taken by the Anaesthetist. At 8.25 p.m. he was declared dead. He has further stated that on further examination of Bisheshwar Yadav he found the following injuries on his body : (i) Circular 1" dia penetrating injury on Rt. Chest 1" below medial to Rt. Nipple. (ii) L.W. 1" dia. penetrating injury Rt. Upper arm in out aspect of Rt. shoulder. (iii) L.W. 1" x 1" x penetrating in Lt. Chest 3" below Lt. Clavicla. (iv) 1" x 1" x penetrating wound 2" lateral to it. Nipple and Lt. Chest. (v) X-ray Chart PA. view done. XPN 2013.(As per radiologist opinion) two radioopaque shoulder Bilateral haemopneumothorax. XPN 2027.The two radiopaque shadows were found to be located, one in area of spine and other shadows in upper part of the chest. He did not give any opinion regarding the nature, weapon and age of the injuries and suggested to obtain the same from the Medical Officer Incharge, Giriak Government Hospital, District-Nalanda. He proved the certified copy of the injury report (Ext. No. 6). In cross-examination he has stated that Bisheshwar Yadav was admitted in the Hospital at 10.40 p.m. on 25.3.1997. He has further stated that before operation the patient required blood besides medicine but in spite of repeated request the attendant failed to bring it and ultimately the patient was transferred to Emergency Ward for awaiting operation. No. 6). In cross-examination he has stated that Bisheshwar Yadav was admitted in the Hospital at 10.40 p.m. on 25.3.1997. He has further stated that before operation the patient required blood besides medicine but in spite of repeated request the attendant failed to bring it and ultimately the patient was transferred to Emergency Ward for awaiting operation. While the operation was being performed and the operating surgeons were repairing the injuries the patient suffered cardio respiratory arrest who was tried to the revived by the Anaesthetist 6n duty by giving different medicines but the patients heart and respiration could not be recovered. He was declared dead and the operation was stopped. His further evidence is that injury Nos. 1 to 4 were penetrating wound and were possible by pointed weapon. 8. PW 18 is Dr. Ashok Kumar Yadav. His evidence is that on 27.3.1997 he was posted as Assistant Professor in the Department of Forensic Medicine in P.M.C.H., Patna. On 26.3.1997 at 9.45 p.m. the dead body of the deceased, Bisheshwar Yadav was brought and post-mortem examination was done by him at 9.30 a.m. on 27.3.1997. He found the following ante-mortem injuries on his person : (i) One stitched wound 1 and half inch long was found 2 and half inch above the left nipple. (ii) One stitched wound one inch long and one and half inch above the left nipple was found. (iii) One 1" long stitched wound 2" left to the right nipple was found. (iv) One 1" long stitched wound was found 3" below the right shoulder tip. (v) One stitched wound 9" long was found on the right side of abdomen. Rigor mortis was found positive, one dranage tube was found below the left nipple. On opening of the stitches and the thoracho-abdominal cavity was found, liver and intestine were found lacerated and repaired. No bullet was found in the wound. He did not give any opinion regarding the nature and cause of the injuries and suggested to obtain the same from the place where he had been treated previously. According to him the death was caused due to shock and haemorrhage and the time of death was within 12 to 14 hours from the time of post-mortem examination. He proved the post-mortem report (Ext. No. 5). In cross-examination he has stated that no blackening and charring marks were found. According to him the death was caused due to shock and haemorrhage and the time of death was within 12 to 14 hours from the time of post-mortem examination. He proved the post-mortem report (Ext. No. 5). In cross-examination he has stated that no blackening and charring marks were found. He has further stated that the injury No. 3 was related to injury No. 5. On perusal of the evidence of the doctors, PW 16, Dr. Jagdish Sharma, PW 19 Dr. Ekbal Ahmad and PW 18, Dr. Ashok Kumar Yadav, it is clear that none of them has given any opinion regarding nature of injury, weapon and cause of death of Bisheshwar Yadav. But the consistent occular evidence is that the appellant, Mishri Gope @ Mishri Yadav fired from his rifle at Bisheshwar Yadav and the appellant Ramawatar Yadav @ Bodhu Gope, fired from his rifle at Umesh Yadav, PW 10 causing injury on his ankle. 9. Now I switch over to the evidence of the eye-witnesses to the occurrence. PW 10, Umesh Prasad, is the injured witness. His evidence is that on 25.3.1997 at 6 p.m. he along with Balmukund Prasad, PW 11, Rameshwar Yadav, PW 15 (the informant), Bisheshwar Yadav (the deceased), Ramsharan Yadav, PW 14, Rajendra Yadav, PW 13, Rahamdeo Yadav and Raghubir Yadav, Pw 12, was going to the house of Bashudeo Khalifa for playing holi When they reached on pucka road near the house of Dr. Krishna Prasad, PW 8, all the FIR named accused started abusing them. The appellant Mishri Yadav ordered to kill them whereupon he himself fired his rifle which hit the chest of Bisheshwar. Accused Arjun fired at Bisheshwar which hit on his right arm and chest. The accused Baudhu opened fire which caused injury on the ghuthi of his (this witness) leg. The accused persons also resorted to brick batting causing injury to Rameshwar, the informant, on his head. The both injured were removed to Giriyak Hospital and from there to Bihar- sharif and then to P.M.C.H. where Bisheshwar died. In cross-examination he has stated that he is the nephew of Bashudeo Khalifa and Ramsharan Yadav. PW 14, Rajendra Yadav, PW 13, are his own brothers. The witness Brahmdeo Yadav PW 4, is his cousin brother. The both injured were removed to Giriyak Hospital and from there to Bihar- sharif and then to P.M.C.H. where Bisheshwar died. In cross-examination he has stated that he is the nephew of Bashudeo Khalifa and Ramsharan Yadav. PW 14, Rajendra Yadav, PW 13, are his own brothers. The witness Brahmdeo Yadav PW 4, is his cousin brother. He has further stated that two months after the occurrence he was examined by the Giriyak police and before that he was examined by the police on 28.3.1997 in the P.M.C.H., Patna. When he was taken to Giriyak Hospital he became unconscious and regained consciousness after three days at Pirbahore Police Station where he was examined by the police. PW 4, Brahmdeo Yadav, is the son of Banshi Yadav. His evidence is that on 25.03.1997 at 6 p.m. he alongwith his co-villagers, Bal Mukund Yadav, the deceased, Bisheshwar Yadav, Ram Sharan Yadav, Raghubir Yadav, Rajendra Yadav and the injured Umesh Prasad were going to the house of Bashudeo Yadav for playing holt When they reached on pakki sadak near the house of the appellant, Mishri Yadav and Dr. Krishna, PW 8, all the FIR named accused along with 4/5 unknown persons were found present there. The appellant, Mishri Yadav, ordered to kill all the members of the prosecution party whereupon the appellant, Bodhu Yadav @ Ramautar Yadav fired his rifle causing injury on the left leg of Umesh Yadav below his ghuti. The appellant, Mishri Yadav also fired four shots from his rifle causing injury on the right side of the chest, left arm, left shoulder and left side of chest below nipple of Bisheshwar Yadav. He has further stated that there was also brick batting on the spot in course of which Ramashray Yadav, the informant sustained injury on the left and right side of his head. In cross-examination he has admitted to have stated before the police that the second shot of Mishri caused injury on the left arm, third shot caused injury on the shoulder and fourth shot caused injury on the left side of chest below nipple of Bisheshwar Prasad. In cross-examination he has admitted to have stated before the police that the second shot of Mishri caused injury on the left arm, third shot caused injury on the shoulder and fourth shot caused injury on the left side of chest below nipple of Bisheshwar Prasad. The evidence of PW 7 Rajo Yadav is that on the alleged date at the relevant hour while he was sitting at the Tea shop of Amrit Sah he saw all the FIR named accused present near the medicine shop of Krishna Yadavt when his deceased son, Bisheshwar Yadav, along with others reached there, the appellant, Mishri Yadav, fired his rifle at his son, Bisheshwar Yadav and the appellant, Arjun Yadav also fired at him from his rifle causing injury on his shoulder. The appellant Bodhu Yadav fired his rifle causing injury on the left leg of Umesh Prasad, PW 10. In cross-examination he has admitted to have stated before the police that appellant Bodhu had fired from his rifle causing injury on the left leg of the witness Umesh. The accused, Mishir Yadav. fired a shot from his rifle at his son and Arjun fired a shot from his rifle causing injury on his shoulder. The evidence of witnesses, Bal-mukund Prasad, PW 11, Raghubir Yadav, PW 12, Rajendra Yadav, PW 13, and Ram Sharan Yadav, PW 14, is that on the alleged date at 6 p.m. they along with Rameshwar Prasad, the informant, Umesh Prasad, injured. Brahmdeo Yadav and Bisheshwar Yadav, the deceased, were going to the house of Basudeo Pahalwan for playing holt When they reached near the house of the appellant, Mishri Gope, the accused persons were found standing there. There was hot altercation in between them whereupon the appellant Mishri Gope ordered to kill them. At this they along with others went towards the house of Krishna doctor, PW 8, then the appellant, Mishri Gope, fired which hit on the chest of Bisheshwar Yadav and the accused Arjun also fired which hit his shoulder and arm. There was a commotion and people started fleeing away. There was also brick batting in which the head of Rameshwar was broken. In cross-examination they except PW 12, Raghubir Yadav, have admitted to haVe stated before the police that they had disclosed the names of Brahmdeo Prasad, Umesh Prasad, Rameshwar Prasad and Bisheshwar, the deceased, as their companions. There was a commotion and people started fleeing away. There was also brick batting in which the head of Rameshwar was broken. In cross-examination they except PW 12, Raghubir Yadav, have admitted to haVe stated before the police that they had disclosed the names of Brahmdeo Prasad, Umesh Prasad, Rameshwar Prasad and Bisheshwar, the deceased, as their companions. PW 11 had denied to have stated before the police that the firing of both the appellants, Mishri Gope and Ramautar Gope hit the chest of Bisheshwar, deceased. He has admitted to have stated before the police that the firing of accused Arjun had hit the shoulder and arm of Bisheshwar. In cross-examination PW 13, Rajendra Yadav, has also admitted to have stated before the police that the appellant, Mishri Gope, fired a shot on the chest of Bisheshwar and the accused Arjun fired shot on his arm. The appellant Bodhu also fired shot on the left leg of Umesh. He has further stated that at the time of the occurrence there was no darkness and the faces were clearly visible. 10. PW 17, Md. Abrar Khan, is the Investigating Officer in this case. His evidence is that on 25.5.1997 while he was posted as Officer-in-Charge of Giriyak Police Station he recorded the fardbeyan of Rameshwar Prasad, the informant, in Giriyak Hospital. He recorded the further statement of the informant and also the statement of witnesses, Balmukund, Brahmdeo Yadav and Reghubir Yadav and then visited the P.O. place of occurrence was situated at a distance of 300 to 400 yards in south of the police station on N.H. 31 in between the house of Mishri Gope and the clinic or Krishna Prasad. He has further stated that in front of the clinic of Dr.Krishna Prasad. Toddy trees were found standing by the side of the road and from there at a distance of 10 yards there was a drainage. Both injured Umesh and Bisheshwar were alleged to be lying injured near the nala and blood was also found there. The house of appellant. Mishri Gope, was situated at a distance of 40-50 yards from the house of Dr. Krishna and two cartridges were found in front of the baithaka of the appellant Mishri Gope. Blood was also found on N.H. 31 but could not be seized because of the running of the vehicles. The house of appellant. Mishri Gope, was situated at a distance of 40-50 yards from the house of Dr. Krishna and two cartridges were found in front of the baithaka of the appellant Mishri Gope. Blood was also found on N.H. 31 but could not be seized because of the running of the vehicles. Bloodstained earth from the place of nala and both the cartridges were seized, a seizure list was prepared in presence of witness Bishundeo Yadav and Umesh Yadav and was signed by them. Brick bats were also found at the place of occurrence. In cross-examination he has proved the formal FIR, Ext. 4. The attention of this witness was drawn to the statement recorded by him in course of investigation. The witness Brahmdeo Yadav, PW 4 had stated before him that the appellant Bodhu Yadav had fired shot on the leg of Umesh, the appellant Mishri Gope had fired shots on the right chest, left arm, shoulder and left chest below nipple of Bisheshwar. At para 86 his evidence is that on 28.6.1997 he examined Gajo Yadav, PW 7, the son of Tulsi Yadav, the father of the deceased, Bisheshwar. Rajo Yadav is not the father of the deceased Bisheshwar and he had not examined him. He had stated before him that the appellant Mishri Gope had fired shot at his son and the appellant Bodhu fired his rifle shot on the leg of Umesh. The witness Umesh Yadav had stated before him that at the time of occurrence at 5 p.m. he was in Giriyak Market. The witness Bal-mukund PW 11 had not stated before him that witnesses to the occurrence were accompanying him for playing holt He had stated before him that the appellant Mishri and Ramautar had fired shots on the chest of Bisheshwar. He had not stated before him that the accused Ajay had fired shot at Bisheshwar. The witness, Rajendra Yadav, PW 13, had not stated before him that the witnesses to the occurrence were accompanying him for playing holt He had not stated before him that appellant Mishri had fired shot on the chest of Rameshwar and accused Ajay fired a shot on his arm. He had not stated before him that Bodhu fired shot on the left leg of Umesh. He had not stated before him that Bodhu fired shot on the left leg of Umesh. The witness Ramsharan Yadav, PW 14, had also not stated before him that witnesses to the occurrence were accompanying him for playing holi. 11. The evidence of all the material witnesses on the point of the occurrence reflects that most of them are closely related to each other and to the deceased. PW 10, Umesh Prasad, PW 13, Rajendra Yadav and PW 14, Ram Sharan Yadav, are own brothers. PW 4, Brahm Deo Yadav, is the own cousin of PW 10, Umesh Prasad. Further all these four witnesses are own nephews of mukhiya, Basudeo Yadav. PW 7, who is actually Gazo Yadav, the father of the deceased, Bisheshwar Yadav. PW 11, Bal Mukund Prasad, is the resident of Ghora Kotaki and not of the village Giriyak. PW 12, Raghubir Yadav, is the co-villager and not in any way related to the deceased, Bisheshwar Yadav. 12. Learned counsel for the appellant, in these circumstances, contended that the witnesses are interested and as such their evidence be discarded. The well settled rule of law is that evidence of such witnesses is not required to be discarded outright rather the same is required to be scrutinised with care and caution. On careful scrutiny of the evidence of the witnesses it is evident that the evidence of the witnesses is consistent on all material point with respect to place of occurrence, use of weapons in the occurrence, time of occurrence and manner of occurrence. The witnesses have categorically stated that the fire arm was used causing death of Bisheshwar Yadav and injury on the person of Umesh. Moreover, PWs 11 and 12 are not interested witnesses and they have supported the prosecution case and the evidence of other witnesses. Further more the Investigating Officer has found blood and cartridges at the place of occurrence. He seized the blood-stained earth and cartridge and prepared seizure list and as such there is no substance in the submission of the learned counsel for the appellant. 13. The learned counsel for the appellants contended that the FIR was lodged on 25.3.1997 at 7.30 p.m. but it was received in the Court of CJM, Biharsharif at Nalanda on 27.3.1997. He seized the blood-stained earth and cartridge and prepared seizure list and as such there is no substance in the submission of the learned counsel for the appellant. 13. The learned counsel for the appellants contended that the FIR was lodged on 25.3.1997 at 7.30 p.m. but it was received in the Court of CJM, Biharsharif at Nalanda on 27.3.1997. This delayed receipt of the FIR in the Court of CJM can be viewed with great suspicion and casts a serious doubt to the veracity of the prosecution case. Admittedly there is mandate of law under Section 157 of the Cr PC that the Officer-in-Charge of the police station has to send a report of the information received to a Magistrate promptly.But, this does not mean that the delayed receipt of the FIR would in all cases demolish the prosecution case in face of the positive oral evidence available on the record. It has been held in the case of Bala Singh and another v. State of Punjab, reported in, (1972) 2 SCC 640 ; that : "Such report to be sent forthwith by the Police Officer concerned to a Magistrate empowered to take cognizance to keep the Magistrate informed of the investigation of such cognizable offence, so as to be able to control the investigation and, if necessary, to give a proper direction under Section 159 of Cr PC. So, the FIR was actually recorded without delay and the investigation started on the basis of the FIR and there is no other infirmity brought to notice, then, however, any improper or objectionable delay receipt of the report by the Magistrate concerned, it cannot itself justify the conclusion that the investigation was tainted and the prosecution improbable." In the present case occurrence took place on 25.3.1997 the FIR was lodged promptly on 25.3.1997 at 7.30 p.m. and the investigation followed on that FIR. PW 17, Md. Abrar Khan, I.O., soon visited the P.O., seized bloodstained earth and two cartridges at the place of occurrence. This follows that the investigation started soon after the institution of the FIR. So, I find no force in the above submission raised on behalf of the appellants. 14. Learned counsel for the appellant further contended that none of the doctors has found any firearm injury on the person of the deceased/injured and as such, the conviction of the appellant is bad-in-law. So, I find no force in the above submission raised on behalf of the appellants. 14. Learned counsel for the appellant further contended that none of the doctors has found any firearm injury on the person of the deceased/injured and as such, the conviction of the appellant is bad-in-law. In this regard, it would not be out of place to mention herein that PW 16 initially examined the injured and found penetrating wound on their person. However, he referred the patient to Biharsharif Sadar Hospital and stated in his evidence that information regarding the nature and cause of injury may be obtained from the referred place. PW 19 is a doctor of P.M.C.H. who treated Bisheshwar Yadav, the deceased. However, during the treatment Bisheshwar Yadav died. He has stated that he found penetrating injuries on the person Of the deceased. However, he stated in his evidence that nature of injuries and weapon used be obtained from the Medical Officer-in-Charge, Giriyak Government Hospital. PW 18 is also a Doctor who held post mortem over the dead body. He found stitched wound on the person of the deceased. However, he stated in his evidence that nature of injury and its cause may be procured from the place he had been treated previously. Thus, it is evident that none of the doctors have stated about the nature of the injury and the weapon used for causing injury to the deceased/injured. In such a situation ocular evidence becomes more important and if the ocular evidence is consistent on the point of weapon used by the accused persons such evidence cannot be ignored. It has already been stated that the ocular evidence of the eye-witness brought on the record is consistent on all material points including place, time, manner of occurrence and the weapon used in the occurrence. The witnesses have categorically stated that the appellants fired causing injury to the deceased and the injured. Moreover, the Investigating Officer, PW 17 has found empty cartridges at the place of occurrence and he seized the cartridges and prepared seizure list. In such a situation, the appellants cannot be absolved from the allegation of commission of crime. 15. The witnesses have categorically stated that the appellants fired causing injury to the deceased and the injured. Moreover, the Investigating Officer, PW 17 has found empty cartridges at the place of occurrence and he seized the cartridges and prepared seizure list. In such a situation, the appellants cannot be absolved from the allegation of commission of crime. 15. The appellant, Mishri Gope @ Mishri Yadav, also took a plea of alibi that on the relevant date and time of occurrence he was at his sasural This plea of alibi finds support from the hostile witnesses in their cross-examination by the defence but no cogent and positive evidence was produced in support of it. 16. On consideration of the above discussed evidence and other attending circumstances I find that the prosecution has proved its case against both the appellants beyond all reasonable doubts. The order of conviction recorded by the Court below against them requires no interference by this Court. 17. In the result there is no merit in both the appeals and they are dismissed. The appellant. Mishri Gope @ Mishri Yadav, in Cri. Appeal No. 2002 of 2000 is in custody. The appellant Ramawatar Yadav @ Godhu Gope, in Crl. Appeal No. 134 of 2000 is on bail, so, his bail bond is cancelled with a direction to surrender in the Court below within one month failing which the Court below will take steps for his immediate arrest to serve out the sentence imposed upon him. RAM NANDAN PRASAD, J. 18 I agree.