JUDGMENT O.K. Sinha, J.-The present appeal is directed against the judgment of conviction and order of sentence passed by the Sessions Judge, Palamau at Daltonganj whereby the appellant Lalan Sao was convicted under Section 302 I.P.C. and the other two appellants Ram Chandra Sao and Birendra Sao under Section 302/34 I.P.C. and all the three appellants were sentenced to suffer life imprisonment each in Sessions Trial No. 374/1997. 2. The prosecution was launched on the basis of the written report (Ext. 6) presented by the informant Gulpati Devi stating inter alia that on 11.7.96 while her son Nanku Sao (since deceased) was taking his meal in the night at aboul 10 O'clock the appellants namely Ram Chandra Sao and Birendra Sao came to her door and called out her son. While she was enquiring the purpose of calling her son Nanku, in the meantime, the appellant Lalan Sao appeared having sword In his hand and asked Birendra Sao to eliminate her son by setting the discord once for all and in the same sequence Lalan Sao intruded in the courtyard of the informant and inflicted blow with the sword on the neck as a result of which Nanku Sao sustained severe bleeding injuries from his neck. The informant raised alarm and pursuant to that Pappu Sao (P.W. 2) Raj Nath Sao (P.W. 3) and Krishna Sao (P.W. 4) rushed there and apprehended the appellant Lalan Sao with the sword. Her son Nanku Sao was removed to Nagarutari Hospital on a jeep and from there he was referred to another Hospital for the better management of his injuries and she could not say as to what was the condition of her son at the time of her statement. She further narrated in the written report that the blood stained sword of the appellant Lalan Sao was lying there. On receipt of the written report the police registered Nagar Utari P.S. Case No. 60/96 against all the three appellants for the offence under Section 307/34 I.P.C. on 11.7.96 at about 22.45 hours i.e. within the short span of the commission of the offence. The victim was first taken to Garhwa and from there he was referred to Daltonganj Hospital where he succumbed his injuries during treatment. 3. The victim was first taken to Garhwa and from there he was referred to Daltonganj Hospital where he succumbed his injuries during treatment. 3. The police after investigation submitted charge-sheet against the appellants for the offence under Section 302/34 I.P.C. and accordingly charge was framed against them for the said offence. The appellants pleaded not guilty and claimed to be tried. 4. As many as 12 witnesses were produced and examined on behalf of the prosecution. Besides, prosecution proved the signature of Pappu Kumar on the seizure list Ext. 1, signature 'of another attesting witnesses on the seizure list Ext. 1/1, post mortem report Ext. 2, F.I.R. Ext. 3, seizure list Ext. 4, inquest report Ext. 5 and the written report of the informant Ext. 6. 5. On• the other hand, the defence produced D.W. 1 Gopal Prasad and D.W. 2 Narayan Prasad. Besides, the appellants proved the plaint of Title Suit No. 8/91 Ext. A and the signature of Shri K.M. Shukla Advocate of the plaintiff on the different pages of the plaint of Title Suit No. 8/91 Ext. B to B/14. 6. While adverting to the evidence on the record produced on behalf of prosecution, we find two sets of witnesses i.e. the witnesses who were present at the place of alleged occurrence and claimed themselves as the eye-witnesses and the another set who arrived at the scene on hearing alarm raised by the victim as well as inmates of the house of the deceased and the evidence of Investigating Officer and the Doctor who held autopsy on the dead body of Nanku Sao. 7. P.W. 1 Sabita Kumari, the cousin (sister) of Nanku Sao deposed by presenting an eye-witness account of the occurrence. She testified that while she was serving food to her brother Nanku the appellant Ram Chandra and Birendra came there and called out her brother. Pursuant to that when her brother entered into the courtyard, both the appellants caught him hold and the appellant Lalan inflicted blow with sword as a result of which he fell down and cried to save his life. Her brother was removed to Garhwa for treatment but he succumbed his injuries. She identified all the three appellants in the dock. In the cross-examination she testified that she immediately approached Nanku Sao when he fell down after sustaining injuries and there was profuse bleeding from his injuries. Her brother was removed to Garhwa for treatment but he succumbed his injuries. She identified all the three appellants in the dock. In the cross-examination she testified that she immediately approached Nanku Sao when he fell down after sustaining injuries and there was profuse bleeding from his injuries. It was moonlit night and Nanku Sao was lying only at the distance of 2 fathom from the door. She emphasized that when the appellant Ram Chandra and Birendra were holding Nanku Sao the appellant Lalan inflicted blow with the sword. Her statement was recorded by the police during investigation. 8. P.W. 2 Pappu Sao deposed that he witnessed Nanku Sao being taken on Rickshaw with the injuries on his head to whom he followed to the Hospital. He proved his signature on the seizure list Ext. 1 as also the signature of Raj Nath Ext. 1/1 thereon. This witness was declared hostile by the prosecution but nothing material could be elicited. P.W. 3 Raj Nath Sao is the material witness of this case. He deposed that the occurrence took place on 11.7.96 at about 10 p.m. He testified that while he was sleeping in his room after having his food, he heard the weeping and crying of Sabita Kumari (P.W. 1). Pursuant to that when he visited there, he found the neck of Nanku cut with the bleeding injuries and also witnessed the appellants Ram Chandra Sao and Birendra running away. The appellant Lalan Sao was apprehended while he attempted to run away from the place of occurrence after throwing the sword in the courtyard and his custody was made over to the police. The sword in question was seized by the police to which a seizure list was prepared and he put his signature thereon as the attesting witness. He identified the appellants in the dock. In the cross-examination he testified that B. Sao was his father-in-law• and accordingly Nanku Sao his brother-in-law. In the night of occurrence he was there in his matrimonial home with his wife and was sleeping in one of the rooms with his wife closing the door. He found• the Victim Nanku Sao with the injury on his neck as also Lalan Sao at the distance of 20/25 steps. He further testified having witnessed• the appellant Ram Chandra Sao and Birerldra Sao running towards south whereas Lalan Sao attempted to escape towards North Side. He found• the Victim Nanku Sao with the injury on his neck as also Lalan Sao at the distance of 20/25 steps. He further testified having witnessed• the appellant Ram Chandra Sao and Birerldra Sao running towards south whereas Lalan Sao attempted to escape towards North Side. The appellant Birendra Sao was the son of the appellant Lalan Sao whereas Ram Chandra Sao was the nephew of the principal accused Lalan. He admitted that Nanku Sao was also the nephew of Lalan. The father of Nanku and father of Lalan were living separately in different houses and the house of the appellants was situated opposite the house of Nanku with the intervening village road from "North to South. He further testified that Lalan Sao was apprehended at the distance 20/25 steps from his house. Nanku was first taken to Garhwa on a jeep and in the same night he was referred to Daltonganj Hospital where he succumbed his injuries at about 5 a.m. No medical aid was given to Nanku either at Nagar Utari or at Garhwa. He claimed having accompanied Nanku to Hospital. The witness testified by admitting that there was land dispute between Bhola Sao and Lalan Sao and for the adjudication about 2/3 suits were pending in Garhwa Courts. He denied the suggestion that he was not present in his matrimonial home in the night of occurrence. 9. P.W. 4 K.P. Gupta testified that in the night of occurrence while he was taking food with his brother Nanku in the house the appellant Ram Chandra Sao and Birendra Sao came there called out his brother Nanku and took him outside where the appellant Lalan Sao inflicted injury on Nanku Sao with the sword on his neck while Ram Chandra Sao and Birendra were holding his brother. He came out with his brother-in-law P.W. 3 Raj Nath Sao and found LalanSao running away. He alongwith the witness Raj Nath Sao apprehended the appellant Lalan Sao and made him over to the police on the way while he was being taken to the police station. The victim was removed ultimately to Daltonganj Hospital where he succumbed his injuries. In the cross-examination the witness admitted the victim Nanku being his full brother and the appellant Lalan Sao being his uncle. The victim was removed ultimately to Daltonganj Hospital where he succumbed his injuries. In the cross-examination the witness admitted the victim Nanku being his full brother and the appellant Lalan Sao being his uncle. His house was adjacent and opposite to the house of appellants with the intervening village lane from North to South, He admitted having delivered his statement to the police and also apprised the police in respect of the weapon used, being sword by Lalan on the victim while the victim was held by Ram Chandra Sao and ,Birendra. The witness testified that the occurrence took place on the space between the houses of the appellants and the prosecution witnesses. He further deposed that his brother at the relevant time was taking Rdti and Chhokha as food which was being served by Sabita at• the short distance from the main door. The witness further deposed that Lalan Sao was apprehended at the distance of 30/35 steps towards west and that while he was being taken towards south the police came and took his custody. At that time Lalan Sao was not holding any weapon in his hand. 10. P.W. 5 Gulpati Devi is the mother of the deceased. She testified that the occurrence took place in the night some 19 months ago. She deposed that while her son Nanku was taking his -food the appellants Ham Chandra Sao and Birendra came there and called him out and took him outside by holding his hand. In the same sequence the appellant Lalan came there with the sword in his hand and inflicted blow on the neck of Nanku which caused bleeding injury. On the alarm the witnesses Krishna (P.W. 4) and Raj Nath (P.W. 3) came and apprehended the appellant Lalan. The victim was removed to Nagar Utari Hospital and then to Garhwa and from there he was removed to Daltonganj Hospital but in spite of treatment he could not survive. Her statement was recorded by the Sub-Inspector of Police and she had put her thumb impression thereon. In the cross-examination she deposed that her husband died two years ago. She admitted that the appellant Lalan Sao was her own Devar whereas the appellants Ram Chandra Sao and Birendra were her nephews. They were living separately but there was land dispute between the parties. In the cross-examination she deposed that her husband died two years ago. She admitted that the appellant Lalan Sao was her own Devar whereas the appellants Ram Chandra Sao and Birendra were her nephews. They were living separately but there was land dispute between the parties. Describing the place of occurrence the witness testified that Nanku Sao was taking his food on the Verandah of the courtyard and his wife was also there with the only opening door. The appellants had called out Nanku standing on that door whereupon her son came near the door of the courtyard. There was none there except the appellants Ram Chandra Sao and Birendra. She further deposed that she raised alarm and the witnesses arrived there. She testified' having found two injuries on the neck of her son caused by sword and she became unconscious on witnessing the injuries on her son. The police came in the night but her statement was recorded by the Sub-Inspector of Police in the morning. 11. P.W 6 Urmila Devi is the widow of deceased. She testified by depicting an eye-witness account that at the relevant time of occurrence, at about 10 p.m. she was in the house with her mother-in-law (P.W 5); Krishna Prasad Gupta (P.W 2) and Raj Nath Sao (P.W 3). Her husband Nanku Sao (since deceased) was taking meal. In the meantime he was called out by the appellants Ram Chandra and Birendra. Both the appellants caught hold him and the appellant Lalan inflicted blow with sword on the neck of her husband causing bleeding injuries. He was taken to Hospital at Nagar Utari and from there he was removed to Garhwa and finally in course of treatment at Daltonganj he succumbed his injuries. She identified the appellants in the dock. In the cross-examination she testified having accompanied her husband to all the Hospitals and that he died about 6 O'clock in the morning. She deposed that she was living with her husband in the old house whereas the elder brother of her husband had been living in the new house with his wife. Describing the place of occurrence she testified that her husband was taking food near the door of the room situated towards western side and that she was sitting there. Her Devar Krishna and the brother-in-law Raj Nath were sleeping in the rooms situated in the southern side. Describing the place of occurrence she testified that her husband was taking food near the door of the room situated towards western side and that she was sitting there. Her Devar Krishna and the brother-in-law Raj Nath were sleeping in the rooms situated in the southern side. Her mother-in-law was also there with her. Describing the occurrence she testified that she witnessed the appellant Lalan in the courtyard while assaulting with the sword but she could not remember the number of the strokes inflicted. He inflicted blow on the neck of her husband from behind while he yes standing as a result of which he fell down and the occurrence took place in the courtyard itself. Finally she deposed that after assaulting her husband all the three attempted to escape but the appellant Lalan was apprehended outside the house. 12. P.W 7 deposed that some 18 months ago while he was in market, he was apprised by Raj Nath (P.W. 3) about the injury sustained by his brother Nanku. He went to the house and on query Sabita (P.W 1) narrated that Nanku was assaulted by Birendra, Ram Chandra and Lalan. Lalan was taken to police station and his brother was taken to Nagar, Garhwa and finally at Daltonganj Hospital where he died. The witness was declared hostile by the prosecution. In the cross-examination he deposed that the police came in the morning who recorded the statement of his mother but his statement was not recorded by the police. 13. P.W 8 Dr. G.P. Singh held post mortem examination on the dead body of Nanku Sao, aged about 30 years on 12.7.96 at about 11.30'a.m. while he was posted as Civil Assistant Surgeon at Sadar Hospital, Daltonganj. He testified having found the following ante mortem injuries, on external examination:- (i) An• incised wound (loosely stitched) present over occipital region of scalp extending down the neck reaching till the anglo of right jaw passing below right ear. Dimension were 15 c.m. x 5 c.m. x bone deep (cervical vertebra upper fractured). (ii) An incised wound (loosely stitched) present over dorsal aspect of right wrist 6 c.m. x 3 C.IT). x bone deep underlying carpol bone fractured. 14. In the opinion of this expert witness cause of death was due to haemorrhage and shock produced by abovementioned ante-mortem injuries caused by sharp cutting weapon such as sword. (ii) An incised wound (loosely stitched) present over dorsal aspect of right wrist 6 c.m. x 3 C.IT). x bone deep underlying carpol bone fractured. 14. In the opinion of this expert witness cause of death was due to haemorrhage and shock produced by abovementioned ante-mortem injuries caused by sharp cutting weapon such as sword. Time elapsed since death was assessed within 6 to 36 hours. He proved the post mortem report Ext. 2. In the cross-examination the Doctor testified that the injury on neck was on the back side. 15. P.W. 9 Baijnath Sao is the hearsay witness who testified by having derived information from Sabita Kumari (P.W. 1). He deposed that when he went to the house of Bhola Sao on hearing Halla Sabita narrated that her Nanku Bhaiya was assaulted by the appellant Lalan with sword whereas the other two appellants Ram Chandra Sao and Birendra Sao were holding him. In the cross-examination he admitted having not seen the occurrence but testified having found blood stained sword at the place of occurrence. The police had seized blood stained sword and took away with him. 16. P.W. 10 Dev Nath Sao has been declared hostile by the prosecution and nothing material could be elicited in his cross-exam ination. 17 P.W.11 Ram Niranjan Singh is the Investigating Officer of the case. He testified that on 11.7.96 when he was posted at Nagar Utari Police Station as Assistant Sub-Inspector of Police, the charge of the investigation of Nagar Utari P.S. Case No.60/96 was made over to him. He proved the formal F.I.R. Ext. 3 and deposed that he visited the place of occurrence which was the house of the informant constructed of clay. There was courtyard opposite the house and towards south a room was situated with the door and in the said courtyard he found the blood stained sword which was seized and seizure list was prepared with the signatures of the attesting witnesses. He received the inquest report from Daltonganj police which was proved and marked Ext. 5. In the cross-examination the witness admitted having received the charge of investigation on 11.7.96 with the formal F.I.R. and the written report. He arrested the appellant Lalan Sao on the way when the witnesses were carrying him after his apprehension from the place of occurrence. He received the inquest report from Daltonganj police which was proved and marked Ext. 5. In the cross-examination the witness admitted having received the charge of investigation on 11.7.96 with the formal F.I.R. and the written report. He arrested the appellant Lalan Sao on the way when the witnesses were carrying him after his apprehension from the place of occurrence. He visited the place of occurrence in the night, seized the sword from there and recorded the statements of the witnesses after he prepared the seizure list. 18. P.W. 12 Bhuneshwar Pandey proved the written report of the informant Gulpati Devi which was presented at the Nagar Utari Police Station and it was marked Ext. 6. After the evidence on behalf of the prosecution was closed, all the three appellants were examined separately under Section 313 Cr. P.C. by placing incriminating materials before them which appeared on record in course of ineir trial, specific against the appellant Lalan Singn in respect of assault with sword on the neck of Nanku Sao consequent to his death in course of treatment and that he was apprehended by the witnesses while he was running away from the place of occurrence after throwing the sword to which he denied his guilt but offered to place his defence in writing. Similarly the other two appellants Ram Chandra Sao and Birendra Sao also denied their guilt when the incriminating materials on the record were placed before them. 19. On the other hand the appellants produced D.W. 1 Gopal Prasad, a typist who proved the plaint of T tie Suit No. 8/91 in his typing with his signature thereon marked Ext. A D.W. 2 Narayan Prasad, an Advocate's Clerk proved the signature of Shri K.N. Shukla, Advocate of Civil Court, Garhwa on the plaint of Title Suit No. 8/91 from page 1 to page 15 marked Ext. B to B/14. 20. Mr. A.K. Sahani, learned Counsel submitted that the appellants are innocent and have been falsely implicated on account of land dispute. The deceased Nanku Sao was admittedly the agnate of the appellants. The appellant Lalan Sao was his own uncle whereas the other two appellants were the cousins of the deceased. On account of the old enmity prevailing between the parties the trial court erroneously convicted the appellants without meticulously examining such aspect and only on testimonies of the interested witnesses. 21. Mr. The appellant Lalan Sao was his own uncle whereas the other two appellants were the cousins of the deceased. On account of the old enmity prevailing between the parties the trial court erroneously convicted the appellants without meticulously examining such aspect and only on testimonies of the interested witnesses. 21. Mr. Sahani emphasized that no independent witness has been produced in the witness box so as to place an independent account of the alleged occurrence. The prosecution with mala fide intention produced interested and partisan witnesses inimical to the appellants and that it would be evident that their testimonies suffer vital contradictions on material particulars. 22. Advancing his argument Mr. Sahani submitted that the F.I.R. was lodged not on the Ferd Beyan (statement) but on the written report presented by the informant though it was stated that the police arrived at the alleged place of occurrence within no time. In the written report the informant Gulpati Devi did not mention the presence of the other witnesses at the place of occurrence of their arrival at the scene but in her substantial evidence she made development by introducing the name of the witnesses claiming that they were present there and that some arrived on alarm. 23. Mr. Sahani pointed out that the place of occurrence alleged to be the house of the informant surrounded by neighbours but the prosecution failed to show the arrival of any neighbour holding an independent status in spite of the cries of the deceased and other witnesses which also cast doubt that the occurrence did not take place in the manner presented by the prosecution and the trial court lost sight of this aspect. 24.. Adverting to the fact in respect of delay in lodging of the FI.R. Mr. Sahani submitted that the occurrence as alleged took place on 11.7.1996 at about 10 p.m. and the F.I.R. was instituted after 45 minutes at about 10.45 p.m. but the same was sent on 12.7.96 which was received by the C.J.M. on 13.7.96 without any explanation of such inordinate delay in dispatching the F.I.R. to the C.J.M. giving rise to a reasonable probability of due deliberation and consultation. 25. Finally Mr. Sahani emphatically submitted that the identification of the appellant at about 10 p.m. by the prosecution witnesses without disclosing the source of light is highly doubtful. 25. Finally Mr. Sahani emphatically submitted that the identification of the appellant at about 10 p.m. by the prosecution witnesses without disclosing the source of light is highly doubtful. Similarly the presence of P.W 1 Sabita Kumari and P.W 3 Raj Nath Sao who were not the members of the house of victim at the place of occurrence in the night at the relevant time is doubtful. Mr. Sahani exhorted that the brother of the deceased P.W 2 Pappu Sao was unfavourable to the prosecution by not supporting the prosecution case and he was declared hostile by the prosecution. Similarly P.W. 7 Nageshwar Prasad the another brother of the deceased was also declared hostile and for that adverse inference as to the veracity of the prosecution case can be drawn. The written report has not been properly brought on the record which was proved by a format witness Ext. 6. 26. As regards the medical evidence, Mr. Sahani elaborated that two injuries were found on the neck of the deceased but the prosecution witnesses were silent about the manner of assault and number of blows inflicted. Yet it can be gathered from the' evidence of P.W. 1 and P.W. 6 that only one blow was inflicted. Similarly there is contradiction in respect of the alleged place of occurrence as to whether it was the courtyard of the house or outside. Mr. Sahani submitted in view of the above points that the conviction of the appellants for the offence under Section 302/34 is unsustainable, uncalled for and that a reasonable doubt is created as to the manner of occurrence presented by the prosecution and the complicity of the appellants therein, which requires conscious consideration and upon such consideration the appellants may be acquitted by allowing their appeals. 27. With regard to the identification of the appellants at the time of commission of offence, none of the prosecution witnesses who claimed having seen the participant of the appellants in the murder of Nanku Sao testified that the assailants were identified in the light of any illuminating object such as electric bulb, lantern, lamp etc. 28. 27. With regard to the identification of the appellants at the time of commission of offence, none of the prosecution witnesses who claimed having seen the participant of the appellants in the murder of Nanku Sao testified that the assailants were identified in the light of any illuminating object such as electric bulb, lantern, lamp etc. 28. Learned Counsel for the appellants highlighted that it was remote possibility for the witnesses to identify the accused persons in absence of any source of light and therefore, the identity of the appellants established by the prosecution in the commission of the murder of Nanku Sao and the conviction of the appellants thereof is unsustainable. 29. Adverting to the entire circumstances of the occurrence presented by the prosecution, we find that it took place at about 10 p.m. while Nanku Sao was taking his meal in the nature of Roti & Chokha. The witnesses are consistent that in the meantime the appellants Ramchandra Sao and Birendra Sao who were the cousins of the victim came there and called out Nanku Sao at his doors and pursuant to that when Nanku Sao came out from the Dhaba in the courtyard, he was held by both the appellants and it was the appellant Lalan Sao who inflicted two blows with the sword in his hand by shifting and disclosing the motive as it was carried out for settling the land dispute once for all. Admittedly the principal accused Lalan Sao was the own uncle and the other two appellants were the cousins of the deceased. The land dispute between the parties has been admitted as the appellants had proved the plaint of the suit brought about by the mother of the deceased Nanku Sao against the appellants. Admittedly, none of the prosecution witnesses has disclosed the source of light but at the same time it is admitted that the appellants were the near relatives and their voice, bodily stature and the nature of costumes usually worn by them were known to the prosecution witnesses from before. At the same time we find from the narration of the place of occurrence that the dwelling house of the appellants were situated opposite the house of Nanku Sao across the road and therefore, we have reason to believe that the prosecution did not lay much emphasis to prove the source of light. At the same time we find from the narration of the place of occurrence that the dwelling house of the appellants were situated opposite the house of Nanku Sao across the road and therefore, we have reason to believe that the prosecution did not lay much emphasis to prove the source of light. Yet we find that the learned trial court could not visualize to discuss this aspect with regard to source of light. We find it usual features in the remote villages that the people of middle class use illuminating object like lamp, lantern etc. while taking food in night. It was not the case that the murder was committed in the dead of night so as to attract a relevant question in respect of source of light for identification. 30. With regard to the probability of presence of prosecution witnesses in the house of Nanku Sao at the material time of occurrence, the learned Trial Judge explained that though P.W. 1 Sabita belonged to village Patharia, she was shown to be present at the place of occurrence as she was serving food to her cousin (Nanku Sao) at about 10 p.m. The deceased was her father's sister's son and at the relevant time she was staying in the house of her Fufi (informant). P.W. 3 Raj Nath Sao was admittedly married to the own sister of Nanku Sao who had visited his in-laws house at the preceding day of incident. He testified that at the relevant time of occurrence he was sleeping in a room of the said house when he got awakened on the alarm raised by Sabita Kumari (P.W. 1). The Trial Judge observed that only because the wife of Raj Nath Sao was not present at that time in the house of her parental home and that she was there at her matrimonial village home, will not make the presence of this witness Raj Nath Sao in his matrimonial home improbable. P.W. 4 Krishna Pd. Gupta was the full brother of the deceased who was also there while Nanku was being served with food in the night and by the time he arrived in the courtyard on the alarm of the victim. The appellants started running away but Krishna Pd. P.W. 4 Krishna Pd. Gupta was the full brother of the deceased who was also there while Nanku was being served with food in the night and by the time he arrived in the courtyard on the alarm of the victim. The appellants started running away but Krishna Pd. Gupta P.W. 4 with the assistance of his brother-in-law Raj Nath Sao (P.W. 3) and P.W. 2 Pappu Sao could be able to apprehend Lalan Sao at a short distance from the courtyard and that Lalan Sao threw the sword in the courtyard itself before he could be apprehended. The informant Gulpati Devi being the mother of the deceased in the opinion of the Trial Judge deserved all credence about her presence at the place of occurrence. Admittedly Urmila Devi (P.W. 6) was the widow of the deceased whose presence at the place of occurrence could not be disputed in the cross-examination. 31. Answering the question raised by the learned Counsel for the defence/appellants the Trial Judge explained that it was not the fact that only interested witnesses were examined in course of trial in exclusion to the independent witnesses and that it was late in the night and hence the neighbours could not appear at the scene. It was not the case that some neighbours arrived at the scene and they were deliberately withheld from the witness box and that the prosecution adopted the measures of pick and choose of the witnesses according to choice. On the other hand, the prosecution produced all the witnesses who arrived at the scene of occurrence at the relevant time. 32. The Trial Judge observed that no infirmity in the statement by Gulpati Devi was ever suggested by the defence except her bald statement that on seeing the incident, she became unconscious. The Trial Court further observed that the victim Nanku Sao was being taken to Hospital as it could appear in the evidence of Krishna Prasad Gupta (P.W. 4), Raj Nath, Deonath & Binod who accompanied the victim. The wife of the victim Urmila Devi, Nirmala Devi, Rajendra, Gorakh had also visited the Hospital. The Trial Court further observed that the victim Nanku Sao was being taken to Hospital as it could appear in the evidence of Krishna Prasad Gupta (P.W. 4), Raj Nath, Deonath & Binod who accompanied the victim. The wife of the victim Urmila Devi, Nirmala Devi, Rajendra, Gorakh had also visited the Hospital. The other two witnesses such as Mahesh Prasad Yadav and his wife had claimed having witnessed Lalan Sao being apprehended by the other two witnesses but amongst them only Raj Nath Sao (P.W. 3), Urmila Devi (P.W. 6) and Deonath Sao were examined at trial and in the opinion of the Trial Judge if the remaining witnesses could not be examined who visited the Hospital and witnessed the appellant Lalan Sao being apprehended, no oblique motive can be attributed to the prosecution as it was not uncommon that people even witnessing incident opt to remain unconcerned, scared of the complication which they foresee on being cited as witnesses. We do not find any illegality or infirmity in such observation of the Trial Judge. 33. With regard' to the relation between the deceased and. the appellants, the trial judge found that previously all the three brothers Alakh Chandra Sao, Bhola Sao (father of Nanku Sao) and the appellant Lalan Sao were living tagether in the common house but before the alleged occurrence they all had their own houses and were residing separately which could be gathered from the evidence of P.W 2. It was further observed that the house of Bhola Sao and the house of Lalan Sao with Alakh Chandra Sao were facing each other across the village lane. It was further gathered that Bhola Sao had two houses at the insignificant distance of about 200 paces. Yet both the parties were on litigating terms and that the appellants proved the plaint of Title Suit No. 8/91 which was brought on the record (Ext. A), Bhola Sao was dead and his son (victim) Nanku Sao was living in the house with his widow mother, wife and brother Pappu Sao (P.W 2), and Krishna Sao (P.W 4). The witnesses are consistent that after attacking on Nanku Sao with sword when Lalan Sao started fleeing with other two assailants, he was nabbed by Pappu Sao (P.W 2) Raj Nath Sao (P.W 3) and Krishna Pd. Gupta (P.W 4). 34. The witnesses are consistent that after attacking on Nanku Sao with sword when Lalan Sao started fleeing with other two assailants, he was nabbed by Pappu Sao (P.W 2) Raj Nath Sao (P.W 3) and Krishna Pd. Gupta (P.W 4). 34. The facts that Nanku Sao died of homicidal death has been corroborated by the evidence of Dr. G.P. Singh (P.W 8) and by the testimony of other eye-witnesses such as Pappu Sao, P.W 2 Raj Nath Sao (P.W 3) and Nageshwar. Pd. (P.W 7) who had found injuries on the person of Nanku Sao after the incident. 35. As regards the complicity of other two appellants, the Trial Judge found that though Lalan Sao was suggested to be assailant, there was good evidence against the other two Ram Chandra Sao and Birendra Sao who caught hold the deceased while Lalan Sao dealt blow twice on the neck of Nanku Sao. The Trial Judge has explained that true it was that though early version of the informant Gulpati Devi did not disclose in her written report that Birendra and Ram Chandra Sao at the material time caught hold Nanku Sao but she was consistent in her statement in the written report presented first point in time that Nanku had come out leaving his meal only upon when he was called out by these two appellants Birendra and Ram Chandra Sao and in that view of the matter the common intention of all the appellants can well be inferred which has constructively been proved. The fact of assault with sword on the neck of Nanku Sao was given effect with the furtherance of common intention of all the three appellants and the sword was seized by police before attesting witnesses. The Trial Judge observed that all the three accused came there in the night with avowed object to execute killing, duly armed with lethal weapon, by attacking on Nanku Sao which was finally executed in the courtyard. Common intention was shared by all the three appellants. The Trial Judge observed that all the three accused came there in the night with avowed object to execute killing, duly armed with lethal weapon, by attacking on Nanku Sao which was finally executed in the courtyard. Common intention was shared by all the three appellants. Though the victim did not die instantaneously and he was referred from Nagar Utari Hospital to Garhwa and from there to Sadar Hospital Daltonganj where he succumbed his injuries in the early morning, we find that the common intention of the appellants was dominant to commit murder with the oblique motive as discussed above and hence we do not find any illegality or irregularity in the judgment of conviction under Section 302 simplicitor against the appellant Lalan Sao and under Section 302/34 I.P.C. against the other two Ram Chandra Sao and Birendra Sao and the order of sentence of life imprisonment against each of them recorded by the learned Sessions Judge, Palamau at Daltonganj in Sessions Trial No. 374/1997 so as to interfere therein. Similarly, we find no ground made out by the appellants to call for interference in the judgment of conviction and the order of their sentence. We do not find any merit in this appeal and hence it is dismissed by affirming and upholding the judgment and order passed by the Sessions Judge in Sessions Trial No. 374/1997 arising cut of G.R No. 458/96. 36. Ad interim bail granted to the appellants Ram Chandra Sao and Birendra Sao during the pendency of this appeal stands vacated with the direction to serve out the sentence. The Sessions Judge is to take effective steps. D.G.R. Patnaik, J.---1 agree.