JUDGMENT REKHA KUMARI, J 1. These appeals are directed against the judgment dated 19.1.2002 passed by Shri B.K. Shahi, 3rd Additional Sessions Judge, Begusarai in Sessions Trial No. 36 of 1994 under which he has convicted appellant Sikandar Yadav under section 302 of the Indian Penal Code and other appellants under section 302/34 of the Indian Penal Code and has sentenced appellant Sikandar Yadav to undergo imprisonment for life and also to pay a fine of Rs. 10,000/- and in default to undergo imprisonment for life and also to pay a fine of Rs. 20,000/- and in default to undergo rigorous imprisonment for one year and has sentenced the remaining appellants to undergo imprisonment for life and to pay a fine of Rs. 5000/- each and in default to undergo rigorous imprisonment for six months. 2. As all the above appeals arise out of the same judgment, they have been heard together and are being disposed of by this common judgment. 3. It may also be mentioned here that one Ram Ratan Yadav and one Dularu Yadav were also accused in this case who died before the trial began in the lower court. 4. The prosecution case, in brief, is that on 2.5.1993 at 3.00 P.M. informant Ram Narain Yadav of village Sakara, P.S. Garhpura, district Begusarai alongwith his father Nokhe Yadav, brothers Khiro Yadav, Suresh Yadav and some other villagers had gone to see his field situated near Baluaha Chamartoli. They saw the appellants and co-accused Ratan Yadav and Dularu Yadav ploughing their field with tractor. Nokhe Yadav protested and asked them to stop ploughing. On this, Ram Ratan Yadav replied that he had purchased the land from the Khatiani raiyat. Nokhe Yadav asked them to get the matter decided by court and then plough the land, but Ram Ratan Yadav again started ploughing. Nokhe Yadav then stood in front of the tractor to stop them from ploughing. Ram Ratan Yadav then ordered for assault. The appellants started assaulting Nokhe Yadav with fists and slaps. Ram Ratan Yadav then ordered to kill him whereupon all the appellants thrashed him (Nokhe Yadav) down and Ratan Yadav and Sikandar Yadav twisted his neck as a result of which Nokhe Yadav died instantaneously. It is also alleged that appellant Birju Yadav jumped on the chest of the deceased. The appellants started assaulting Nokhe Yadav with fists and slaps. Ram Ratan Yadav then ordered to kill him whereupon all the appellants thrashed him (Nokhe Yadav) down and Ratan Yadav and Sikandar Yadav twisted his neck as a result of which Nokhe Yadav died instantaneously. It is also alleged that appellant Birju Yadav jumped on the chest of the deceased. It is further said that as the appellants were also armed with rifle and gun, the witnesses did not go to save the deceased. 5. On the same date at 6.30 P.M. the Fardbeyan of the informant was recorded by S.I. M.K. Sinha at the P.O. field. On the basis of the Fardbeyan, formal F.I.R. was drawn up. The police investigated the case and after completing investigation submitted chargesheet against the appellants and other co-accused. 6. Appellant Sikandar Yadav was charged under section 302 of the Indian Penal Code and other appellants were charged under section 302/34 of the Indian Penal Code and Section 27 of the Arms Act. They pleaded not guilty to the charges. Their defence, as gathered from the suggestions given to the P.Ws. is that no occurrence as alleged took place and the deceased was murdered elsewhere and on account of land dispute the appellants were falsely implicated. 7. The prosecution, in order to prove its case, examined altogether 11 witnesses. Among them P.W. 1 Bulaki Paswan, P.W. 2 Medni Paswan claimed to have reached the P.O. on hulla and seen the deceased dead. P.W. 9 Khiro Yadav has stated that he did not see the occurrence. P.W. 10 Ram Sakha Yadav has stated that he had no knowledge of the occurrence. All these witnesses have been declared hostile P.W. 3 Butan Yadav, P.W. 4 Suresh Yadav, P.W. 5 Jago Yadav , P.W. 6 Tetar Yadav, P.W. 7 Baleshwar Yadav, P.W. 8 Narain Yadav (informant) claimed to be the eye-witnesses. P.W. 11 Daya Nand Kumar is a formal witness who has proved the post mortem report (Ext. 2), Fardbeyan (Ext. 3), formal F.I.R. (Ext. 4) and endorsement (Ext. 5) on the Fardbeyan. 8. The learned trial court after considering the above evidence convicted the appellants and sentenced them as mentioned above. 9. The point for determination for this Court is whether the trial court was justified in conviction and sentencing the appellants for the above offence. 10. 2), Fardbeyan (Ext. 3), formal F.I.R. (Ext. 4) and endorsement (Ext. 5) on the Fardbeyan. 8. The learned trial court after considering the above evidence convicted the appellants and sentenced them as mentioned above. 9. The point for determination for this Court is whether the trial court was justified in conviction and sentencing the appellants for the above offence. 10. Learned counsel for the appellants submitted that in this case all the witnesses are relatives of the informant and no independent witness has been examined to prove the charges. The I.O. and the doctor have also not been examined. There was land dispute between the parties from before. Therefore, only on the evidence of the witnesses examined, the prosecution case cannot be said to have been proved. 11. In order to appreciate the argument of the learned counsel, I have gone through the evidence of the witnesses. 12. P.W. 8, the informant Ram Narain Yadav has stated that on the alleged date at 3.00 P.M. he alongwith Suresh Yadav (P.W. 4). Tetar Yadav (P.W. 6), Butan Yadav (P.W. 3), Jagdish Yadav (P.W. 5), Baleshwar Yadav (P.W. 7), Khiro Yadav (P.W. 9) and his father Nokhe Yadav had gone to see his field at Mouza Sakra Baluahi near Chamartoli. He saw that the appellants and other co-accused numbering 12 were ploughing his field. His father asked as to why they were ploughing the field, whereupon accused Ram Ratan Yadav replied that he had purchased the land from Khatiani raiyat. His father told them to stop ploughing and get the matter decided in Court. Ram Ratan Yadav did not listen to him and continued ploughing the field. On this his father went and stood in front of the tractor. Ram Ratan Yadav pushed his father down and the appellants and others started assaulting him. Appellant Sikandar Yadav then ordered to kill him and Ram Ratan Yadav and appellant Sikandar Yadav twisted the neck of his father and appellant Birju Yadav rode over his chest as a result of which his father died then and there. His evidence also is that the appellants were armed with gun, rifle and other weapons. 13. P.W. 3 Butan Yadav has stated that on the alleged date he was sitting under a tree east of his village when the informant and his father asked him to company them, as the appellants were ploughing their land. His evidence also is that the appellants were armed with gun, rifle and other weapons. 13. P.W. 3 Butan Yadav has stated that on the alleged date he was sitting under a tree east of his village when the informant and his father asked him to company them, as the appellants were ploughing their land. He alongwith them went to Baluaha Chamartoli and saw that the appellants and others, altogether 12 persons, were ploughing the land of Nokhe Yadav with tractor. Nokhe Yadav went and stood in front of the tractor and protested saying that the land belongs to him and why they were ploughing it. The appellants did not listen to him. Nokhe Yadav told them to get the matter settled by Court. Accused Ram Ratan Yadav replied that the land would first be ploughed. Thereafter all the appellants and other co-accused pulled Nokhe Yadav away from the tractor and threw him down and started assaulting him. Accused Ram Ratan Yadav and appellant Sikandar Yadav then started pressing the neck of Nokhe Yadav and appellant Birju Yadav rode over his chest and started thrashing it. Nokhe Yadav died then and there. 14. P.W.4 Suresh Yadav, P.W. 5 Jago Yadav, P.W. 6 Tetar Yadav, P.W. 7 Baleshwar Yadav have also stated to the same effect as the above P.Ws. regarding the occurrence. According to P.W. 4 on the alleged date and time he was grazing his buffalo in a siswani, east of his village alongwith Baleshwar Yadav (P.W. 7) and Butan Yadav when Nokhe Yadav and Narain Yadav came and informed that Sikandar Yadav and others were ploughing their land and on this he alongwith Nokhe Yadav, Narayan Yadav, Butan Yadav (P.W. 3), Baleshwar Yadav (P.W. 7) reached the place of occurrence and saw the occurrence. According to P.W. 5 he has land near the P.O. land and he was going to see his land when on the way he met Nokhe Yadav and Narayan Yadav and went with them to the place of occurrence. P.W. 6 has stated that he had gone to call labourer and when he reached near the field of Nokhe Yadav, he saw the occurrence. According to P.W. 7 Baleshwar Yadav, he was grazing butffalo near the field of Nokhe Yadav when he saw the occurrence. 15. P.W. 6 has stated that he had gone to call labourer and when he reached near the field of Nokhe Yadav, he saw the occurrence. According to P.W. 7 Baleshwar Yadav, he was grazing butffalo near the field of Nokhe Yadav when he saw the occurrence. 15. The evidence of the above witnesses shows that they are all eye-witnesses and have corroborated each other and supported the prosecution case. 16. Among the above witnesses, P.W. 8 is the informant and as such is an interested witness but on a close scrutiny of his evidence as a whole it appears that he has stood the test of cross-examination and there is nothing material to disbelieve him. The Fardbeyan (Ext. 3) corroborates the testimony of this witness in material particulars. The Fardbeyan was recorded on the same date at 18.30 hours i.e. only after 3.30 hours of the occurrence at the place of occurrence. So, it was recorded quite promptly. Therefore, there was no chance of concoction in it. The evidence of this witness, of course, is that both the parties were claiming the land. P.W. 6 has stated that a dispute was going in between Nokhe Yadav and the appellants regarding the P.O. land from one year prior to the occurrence. P.W. 5 has stated that Nokhe Yadav had purchased the P.O. land from Sheo Shankar Prasad in the year 1981-82 and that appellant Sikandar Yadav used to claim the land by purchase from the recorded tenant and there were proceedings under sections 144 and 145 of the Code of Criminal Procedure, 1973 between the parties in respect to the P.O. land. Therefore, indeed, there was enmity between the informant and the appellants from before, but that cannot be a ground to discard the testimony of the informant. On the other hand, as the appellants were claiming the land, it is quite probable that they came to plough the land and as from the evidence of PWs. 1 and 5 it appears that the land belong to Nokhe Yadav. It is natural that Nokhe Yadav went to protest and the occurrence took place. 17. The informant (P.W. 8) at paragraph 7 of his deposition has stated that when he reached the place of occurrence he saw his father lying dead. 1 and 5 it appears that the land belong to Nokhe Yadav. It is natural that Nokhe Yadav went to protest and the occurrence took place. 17. The informant (P.W. 8) at paragraph 7 of his deposition has stated that when he reached the place of occurrence he saw his father lying dead. But from this evidence it cannot be said that he did not see the actual occurrence, because at paragraph 10 of his evidence he has stated that his father had stood in front of the tractor and at that time they were standing outside the field. Therefore, if the above two paragraphs are read together, it reveals that at the time of occurrence the informant and other witnesses were standing outside the field and when his father died the informant went inside the field where his father was lying dead. So, it cannot be said that the witness was not an eye-witnesses. P.W. 1 has also corroborated that the witnesses including the informant were standing at the ridge of the field and the occurrence took place in the middle of the field which was one bigha 18 kathas in area. 18. As regards P.W. 3, his evidence shows that he is grandson of one Mahabir Yadav and the said Mahabir Yadav is the brother of Maharaj Yadav, the grandfather of the informant. Therefore, the witness is related to the informant; but mere relationship cannot be a ground to distrust a witness. He is named in the Fardbeyan as a witness who had accompanied the informant to the place of occurrence. There is also nothing in his evidence to disbelieve him. He has stated in his evidence that they did not try to save the deceased, but his evidence further shows that the appellants were armed with firearm and out of fear they did not go to save the deceased. The conduct of the witness, hence is natural. Then, he has stated that the place of occurrence was visible from the place where he was sitting and he had seen the P.O. land being ploughed by the tractor before going alongwith the informant but he did not give any information about the ploughing to Nokhe Yadav. But, as already shown, the witness was not very closely related to the deceased. So, if he did not inform about the ploughing, this is also not an un-natural conduct. 19. But, as already shown, the witness was not very closely related to the deceased. So, if he did not inform about the ploughing, this is also not an un-natural conduct. 19. P.W. 4 also is a cousin of the informant by agnatic relationship. He has also stated that he had seen the P.O. land being ploughed from the place where he was grazing the cattle but he did not give any information to the informant about it. But, as I have already mentioned, these are no ground to disbelieve the testimony of the witness. He has also stated that as the appellants were armed with firearm, they did not dare to go to resist the appellants, which is a natural conduct. The witness, of course, has stated that the informant, at the time of assault, had covered his father, which has not been stated by any witness. But this is a minor contradiction and for this contradiction the veracity of the witness cannot be doubted. He is also named in the Fardbeyan as witness and his evidence shows that he was examined by the police on the date of occurrence. Hence, there was no chance of embellishment in his statement before the I.O. It has, of course, been put to him in cross-examination as to whether he had stated before the I.O. that he had accompanied the informant from siswani and whether he had named Kailu Yadav as accused, he has answered these questions in affirmative. The I.O. of course, has not been examined and so, it could not be taken as to whether there is any contradiction in the two versions of this witness in this regard. But these are also minor contradictions and do not affect the testimony of this witness in material particulars. He has also admitted that he has deposed against appellant Sikandar Yadav in Misc. Case No. 92 of 1982 but this is no ground to hold that he had enmity with the appellants and so, he deposed falsely against them. 20. P.W. 5 is also Mousera brother of the informant and as such is related to the informant. But his evidence shows that he has land near the P.O. land and he was going there when he accompanied the informant. So, his presence at the P.O. is not un-natural. He is also named in the Fardbeyan as a witness. 20. P.W. 5 is also Mousera brother of the informant and as such is related to the informant. But his evidence shows that he has land near the P.O. land and he was going there when he accompanied the informant. So, his presence at the P.O. is not un-natural. He is also named in the Fardbeyan as a witness. His evidence also shows that he was examined by the police on the next day. Hence, there was no chance of embellishment in his evidence also. There, is nothing in his evidence to discredit him. He has admitted that one Jairam Yadav is his brother and a civil suit is going on in between the Sala (brother-in-law) of his brother and Ram Balak Yadav (appellant); but from this it cannot be inferred that the witness is inimically disposed towards any of the appellants. 21. P.W. 6 is cousin of the deceased but as already stated, mere relationship is no ground to disbelieve the testimony of the witness. He has stated that he had gone to call labourer from Baluaha Chamartoli which is adjacent to the P.O. land. Therefore, his presence at the P.O. is not un-natural. He is also named as a witness in the Fardbeyan. There is nothing in his cross-examination to disbelieve him. This witness, at one place, has stated that when he reached near the dead body, the appellants and other, co-accused and the witnesses were present there, whereas the evidence of P.W. 3 is that after the death of the deceased, the appellants and other co-accused fled away and then they went near the dead body. But this is a minor contradiction and does not affect the testimony of any of the witnesses. 22. P.W. 7 appears to be an independent witness as there is nothing in hi cross-examination to show that he is related to the informant. He has admitted that Ram Chandra Yadav is his brother and the said Ram Chandra Yadav had filed a case against appellant Sikandar Yadav and Birju Yadav; but from this it cannot be said that the witness is inimical against the appellants. Then, he has admitted that appellant Birju Yadav had instituted a case against him, but it has not been elicited that the case was filed prior to this occurrence. Moreover, this witness is named in the Fardbeyan as a witness. Then, he has admitted that appellant Birju Yadav had instituted a case against him, but it has not been elicited that the case was filed prior to this occurrence. Moreover, this witness is named in the Fardbeyan as a witness. So, only because of the above case against the witness, it cannot be said that he has deposed falsely against the appellants. He was grazing buffalo near the place of occurrence. So, his presence at the time of the occurrence was quite possible. The witness, of course, has stated that he was grazing buffalo alone by the side of road, whereas according to P.W. 4, this witness was grazing buffalo alongwith him in Siswani, but this is also a minor contradiction and does not disprove the presence of the witness at the P.O. Again, this witness has stated that the informant had received 10-15 fist blows, whereas neither the informant nor any other witness has stated like that; but his evidence is clear that no body had gone inside the field with Nokhe Yadav. Therefore, there is no question of any assault on the informant. It appears that on account of loss of memory, the witness has given the above statement. So, only on this evidence it cannot be doubted that he did not see the occurrence. 23. Hence, on an analysis of the evidence of the above eye-witnesses, I find that though P.Ws. 3, 4, 5 and 6 are relations of the informant, and P.W. 8 is the informant and son of the deceased, their evidence is reliable and inspire confidence and as regards P.W. 7, though appellant Birju Yadav filed case against him, he is also a reliable witness. 24. In the Fardbeyan, it is mentioned that Khiro Yadav, another son of the deceased, had also gone to the place of occurrence alongwith the deceased; but Khiro Yadav has been examined as P.W. 9 and he has stated that he was at his house at the time of occurrence and did not see the occurrence. But from this evidence, it cannot be said that actually no occurrence, as alleged, took place or that the other witnesses did not see the occurrence. The witness (P.W. 9) has been declared hostile. The evidence of the informant and other eye-witnesses, on recall show that there has been compromise between the parties. But from this evidence, it cannot be said that actually no occurrence, as alleged, took place or that the other witnesses did not see the occurrence. The witness (P.W. 9) has been declared hostile. The evidence of the informant and other eye-witnesses, on recall show that there has been compromise between the parties. Therefore, it is quite probable that this witness has tried to suppress the truth. 25. In this case, Dr. R.P. Rai Vibhav, the doctor, who had conducted the post mortem examination on the deceased has not been examined. His post mortem report has, however, been proved by P.W. 11 to be in his handwriting and signature and has been marked Ext. 2. Though, P.W. 11 is an Advocate Clerk, the appellants did not cross-examine the witness. Therefore, it is not disputed that the witness was acquainted with the handwriting and signature of the doctor and the post mortem report was the report of the doctor who had conducted the post mortem examination. The lower court record also shows that even after the issuance of warrant of arrest against the doctor, his attendance could not be procured. The post mortem report prepared by the doctor, hence, would be admissible in evidence under section 32(2) of the Evidence Act. 26. According to the post mortem report, the doctor had conducted the post mortem examination on 3.5.1993 at 7.30 A.M. and found that Rigor Morits was present in all the limbs. There was dust and soil particles on the body of the deceased. He had found the following ante mortem injuries:- (1) There was blackening 4" x 2" on upper most portion of neck 11 front. Bloody froth was coming from nostrils and mouth. (2) There was blackening of skin 2" x 2" on right chest in anterior axillary line below the level of nipple. On dissection he found extravasation of blood in the tissue around the laryngeal structures. The larynx was damaged. Inside the Larynx there was effria of blood in soft tissue as well as mucous membrane of the area. The lunngs were dark, conjested and ingored, liver conjested heart both chambers full dark blood. 27. Thus the findings of the doctor corroborates the testimony of the eye-witnesses. 28. The doctor has opined that the death was due to asphyxia produced by throttling and was caused within 24 hours of the examination. The lunngs were dark, conjested and ingored, liver conjested heart both chambers full dark blood. 27. Thus the findings of the doctor corroborates the testimony of the eye-witnesses. 28. The doctor has opined that the death was due to asphyxia produced by throttling and was caused within 24 hours of the examination. As the doctor has not been examined, even if it be assumed that his opinion is not admissible, the dates given by him leave no doubt that the deceased died on account of throttling and within 24 hours of the post mortem examination, which is the evidence of the eyewitnesses. 29. The I.O. has not been examined in this case. But no prejudice appears to have been caused to the appellants for non-examination of the I.O. The defence of the appellants is that the deceased was murdered somewhere else but the evidence of the eye-witnesses, as mentioned above, is un-impeachable that the occurrence took place at the alleged place of occurrence in which the deceased was murdered. The evidence of PWs. 3, 4 and 6 is also that half of the land was ploughed when the occurrence took place. The evidence of PWs. 3, 5 and 6 is that the blood had come out of mouth and nostrils of the deceased. The evidence of PWs. 5 and 6 also is that the blood had fallen on the ground. But the evidence of PW. 5 is clear that blood had fallen in drops which was also trampled. Therefore, whether the I.O. found any blood or not at the place of occurrence, the same is not material to prove whether any occurrence took place there and the non-examination of the I.O. does not weaken the prosecution case on this ground. 30. In this case most of the witnesses are relations and no witness of nearby villages has been examined. The evidence of P.W. 6 shows that there were Chamartoli, Dusadhtoli and Gareritoli near the P.O. But his evidence is also clear that no body had come to the P.O. from those Tolas at the time of occurrence. P.W. 3 has also stated that after the occurrence the villagers had reached there. So, if no witness from the nearby villages has been examined, it does not affect the prosecution case. 31. Learned counsel for the appellants has submitted that there has not been proper compliance of Section 313 Cr. P.W. 3 has also stated that after the occurrence the villagers had reached there. So, if no witness from the nearby villages has been examined, it does not affect the prosecution case. 31. Learned counsel for the appellants has submitted that there has not been proper compliance of Section 313 Cr. P.C. in this case inasmuch as the circumstances appearing in evidence has not been put to the appellants separately and hence, the conviction cannot be sustained. 32. In the case of Bimbadhar Vs. State of Orissa, AIR 1956 S.C. 469 , the Apex Court while discussing the nature of examination under section 342 Cr.P.C. 1898, equivalent to Section 313 Cr.P.C. has held as to what is or is not in full compliance with the provisions of section of the Code must depend upon the facts and circumstances of each case. In our opinion, it cannot be said that the accused has been in, any way prejudiced by the way, he has been questioned under that section. 33. Therefore, the main question is whether the accused has been prejudiced for any defect in compliance of the provision in this section. In this case though circumstances have not been put separately and have been put together no prejudice appears to have been caused to the appellants by the way they have been questioned. So, the appellants cannot be acquitted on this ground. 34. Thus, considering all the facts, circumstances and the evidence on record I come to the conclusion that the prosecution has been able to prove that on the alleged date, time and place Nokhe Yadav, father of the informant was murdered and the murder had taken place in the manner as alleged and at the hands of the appellants. 35. The question, however, is whether all the appellants would be liable for the murder. In this connection, from the evidence of the witnesses, it is clear that appellant Sikandar Yadav and accused Ram Ratan Yadav (since dead) had twisted the neck of the deceased and at that time appellant Birju Yadav jumped over his chest and started thrashing the post mortem report also shows that the doctor had found signs of throttling and injury on chest. Therefore, there cannot be any doubt that appellants Sikandar Yadav and Birju Yadav shared common intention to commit the murder of the deceased. Therefore, there cannot be any doubt that appellants Sikandar Yadav and Birju Yadav shared common intention to commit the murder of the deceased. As regards the other appellants, though the evidence of the eye-witnesses is that they had also assaulted the deceased, but the post mortem report does not show that the doctor had found any such injury on the dead body. Therefore, though they had also come to plough the field, it is doubtful that they also participated in the murder of the deceased and shared the common intention. 36. The learned trial court, hence, was quite justified in convicting and sentencing the appellants Sikandar Yadav and Birju Yadav (appellants in Cr. Appeal Nos. 95 of 2002 and 56 of 2002 respectively) for the murder of the deceased Nokhe Yadav. As regards the other appellants, however, they deserve benefit of doubt. 37. In the result, Criminal Appeal Nos. 95 of 2002 and 56 of 2002 of appellants Sikandar Yadav and Birju Yadav respectively are dismissed with the only modification that Sikandar Yadav is also convicted under section 302/34 of the Indian Penal Code in place of Section 302 of the Indian Penal Code. Appellant Birju Yadav, who is on bail, is directed to surrender before the trial court within one month from today to serve out the sentence, failing which the trial court will take necessary coercive steps for his arrest to serve out the sentence. 38. As regards Criminal Appeal Nos. 45 of 2002 and 46 of 2002 filed by the other appellants, those appeals are allowed. The judgment and order of conviction and sentence passed against, them by the learned trial court is set aside, they are acquitted ,and they are also discharged from, the liabilities of their bail bonds. I agree.