Judgment SHIVA KIRTI SINGH, J. 1. This appeal is directed against the judgment and Order dated 3.6.2002 passed by learned 1st. Additional Sessions Judge. Begusarai in Sessions Trial No. 472 of 1995 whereby, while acquitting the four other accused persons of the charges under sec. 302 read with section 34 and sec. 120-B of the Indian Penal Code, the appellant has been found guilty of the aforesaid charges. He has been awarded rigorous imprisonment for life under sec. 302 I.P.C and no separate sentence has been awarded under sec. 120-B of the I.P.C. 2. The prosecution case is based upon Fardbeyan of Md. Tauhid (P.W.10), father of the sole appellant recorded by Sub-Inspector of Police. Shyama Kant Jha (C.W.1) on 2.3.1995 at 22.00 hours at the village home of the informant, giving rise to Ballia P.S. Case No. 38 of 1995. The fardbeyan discloses that it was being recorded near the dead body of Nasima Khatoon aged about 35 years, the step mother of the appellant. The informant claimed that from the first wife he had one son the appellant and his two neighbours Md. Masi and Md. Shaukat. He alleged that the murder had been committed with a view to grab his property. Many co-villagers such as Ahmad Hussain (P.W.3). Alimuddin (P.W.7) Md. Mohit (P.W.8) and Md. Zarif .(P.W.6) came after hearing the news of murder of informants wife. 3. The case was investigated by C.W.1. Sub-Inspector of Police S.K. Jha. He has proved the fardbeyan as Exhibit 4 formal F.I.R. as Exhibit-4/1 inquest report as Exhibit-6 and seizurelist as Exhibit-7. As Investigating Officer he prepared the inquest report sent the dead body for postmortem examination seized articles found near the dead body as per seizurelist and after recording the statement of witnesses submitted charge sheet against all the five accused persons named in the F.I.R. After commitment the charges were framed under sections 302. 120-B of the I.P.C. The accused persons pleaded not guilty to the charges and hence they were put on trial. The defence of the accused is total denial of the occurrence and that they have been falsely implicated. 4. The prosecution in order to prove the charges examined ten witnesses. Thereafter the Sub-Inspector of Police Shyama Kant Jha was examined as a court witness no.1 and Dr. The defence of the accused is total denial of the occurrence and that they have been falsely implicated. 4. The prosecution in order to prove the charges examined ten witnesses. Thereafter the Sub-Inspector of Police Shyama Kant Jha was examined as a court witness no.1 and Dr. Rakesh Kumar Sinha who conducted the postmortem examination of the deceased was examined as court witness no.2 P.W.1 Rajendra Paswan P.W.2. Bishundeo Paswan P.W. 3 Ahmad Hussain P.W.4 Ganga Sao P.W.5 Inhrat @ Bholi P.W. 6 Md. Zarif and P.W.8 Md. Mohit are co-villagers of the informant. They have not supported the prosecution case and therefore they have been declared hostile. P.W.7 Alimuddin is a formal witness who has proved his signature on the seizurelist. P.W.9 Lakshmi Paswan has claimed to be an eye witness of the alleged occurrence and P.W.10 Md. Tauhid is the informant who has fully stuck to his statement and allegations in the fardbeyan noticed earlier. 5. The trial court has placed reliance upon P.W.9 as an eye witness of the occurrence and after noticing some of the contradictions and deviations vis-a-vis the claim of the informant he has given benefit of doubt to the other four accused but has convicted the appellant for the offence under sections 302 and 120-B of the I.P.C. because P.W.9 has claimed to have seen this appellant cutting the neck of the deceased by Hasuli. 6. It is necessary in this case to consider the evidence of P.W.9 in some detail to find out whether he can be relied as an eye witness of the occurrence. P.W.9 Lakshmi Paswan has claimed that on the date of occurrence at about 8 in the evening he had gone to supply milk to Tauhid. He found the eastern door of the house closed then he went in the house from the western door. There he saw the appellant cutting the neck of his step mother with Hasuli and at that time wife of the appellant as well as the two neighbours Md. Masi and Md. Shaukat were present there. He asked the appellant not to do such a crime but he was threatened and therefore he ran away. He saw the occurrence taking place near hand pump in the light of a lantern kept nearby. He has proved his signature on his statement recorded by a Judicial Magistrate under sec. Masi and Md. Shaukat were present there. He asked the appellant not to do such a crime but he was threatened and therefore he ran away. He saw the occurrence taking place near hand pump in the light of a lantern kept nearby. He has proved his signature on his statement recorded by a Judicial Magistrate under sec. 164 of the Code of Criminal Procedure as Exhibit-2. He has admitted that he is from another village and his house is at a distance of 1 km. from the place of occurrence. The statement of this witness was recorded under sec. 164 Cr.P.C. after two months of the occurrence and thereafter the I.O. claims to have recorded his statement during investigation on 1.6.1995. 7. P.W.9 in his cross-examination has claimed that while running out of informants house and while fleeing he raised hulla that a murder had taken place. He has claimed that in the way he disclosed the occurrence to accused Md. Masi and accused Shaukat also. He claimed to have met them near the mosque. He also claimed to have given information of the murder to the informant. Tauhid in the way near mosque. He has stated that he did give any statement about the occurrence to the police. He has also admitted that he cultivates four Bighas of land of the informant on share cropping (Batai). He has failed to describe the neighbours of the informant situated in adjacent boundary. 8. On a careful consideration of the entire facts and circumstances and the deposition of P.W.9 it is found that P.W.9 is not at all reliable and he cannot be accepted as an eye witness of the alleged occurrence. His claim that he disclosed the occurrence to the informant has not been supported by P.W.10. Md. Tauhid. In examination-in-chief he has claimed that the two accused Md. Masi and Md. Shaukat were present in the court-yard at the place of occurrence when this appellant was cutting the neck of the deceased but in cross-examination he has claimed that he met those two accused in the way near the mosque. He is a Bataidar of the informant and is therefore a partisan witness. Further he is clearly un-reliable. Hence this case has to be decided on the basis of circumstances as alleged by the informant (P.W.10) because he has not claimed to have seen the occurrence. 9. He is a Bataidar of the informant and is therefore a partisan witness. Further he is clearly un-reliable. Hence this case has to be decided on the basis of circumstances as alleged by the informant (P.W.10) because he has not claimed to have seen the occurrence. 9. The evidence of the doctor C.W.2 discloses that deceased had died on account of five incised wounds caused by sharp cutting weapon and particularly on account of injury no.1 which was an incised wound 8"x 1/2" x muscle deep running from back of the neck cutting the entire left lateral aspect of the neck and extending up to the right lateral margin of the neck in its front. All the major vessels of the neck were severed. There were incised injuries on the left cheek, near left ear on the palm near right thumb. The uterus contained dead baby of 6-7 months. 10. The evidence of the informant. P.W.10 in respect of the alleged place of occurrence is fully supported by the evidence of the Investigating Officer. C.W.2. He has described the house of the informant in detail wherefrom it is clear that from the internal part of the house there is a way towards west for going out in the court-yard wherein there is a Bailghara (cattle shed) situated West-South corner of the court-yard and adjacent south of the same there is a hand pump in the same court-yard. The dead body was found near the said hand pump at a distance of 5 feet. Near the dead body the I.O. found blood in large quantity as well as broken bangles pieces of the hand of the deceased. He seized the broken bangles and severed hair of the deceased from the place of occurrence. The I.O. has deposed that towards south of the place of occurrence there is a further vacant land of the informant and his house is situated in the middle of the village Kasba. He has clearly stated that the place of occurrence is not inside the residential quarters of informants house and inside the house no blood was found. His evidence supports the claim of the informant that deceased was found lying dead near the hand pump in the court-yard of the informant. 11. He has clearly stated that the place of occurrence is not inside the residential quarters of informants house and inside the house no blood was found. His evidence supports the claim of the informant that deceased was found lying dead near the hand pump in the court-yard of the informant. 11. So far as evidence of the informant P.W. 10 is concerned in court also he has stuck to his initial statement as contained in the fardbeyan without resorting to any false-hood or exaggeration. He has been subjected to lengthy cross-examination with a view to show that he is involved in atleast two criminal cases. He has admitted that his first wife is also alive and after the murder of his second wife he has married again with another lady he has stuck to his original statement that information about the occurrence was given to him by daughter of Md. Shaukat while he was in the mosque. He has denied to have talked to anybody in the way while coming from the mosq to his house on getting information of the occurrence. Thus he has contradicted the evidence of P.W.9. He has clearly denied the suggestion that the deceased was a woman of easy virtue. 12. From the aforesaid discussions it is clear that the factum of un-natural death of the deceased as well as the place of occurrence have been proved beyond all reasonable doubts. The case against the appellant rests only upon five main circumstances proved by the prosecution particularly through the informant (P.W. 10) who is none else but father of the appellant and found to be fully reliable. The case against the appellant rests only upon five main circumstances proved by the prosecution particularly through the informant (P.W. 10) who is none else but father of the appellant and found to be fully reliable. The circumstances are following- (i) The deceased was last seen in the court-yard of informants house along with the appellant his wife and his mother-in-law (ii) Information of the occurrence taking place in the courtyard of the house was not given to the informant by the appellant his son or by wife or mother-in-law of the appellant (iii) As soon as the informant got information of the occurrence he rushed to his house but found that appellant his wife and his mother-in-law were not present and had left the house, (iv) The dead body was found in the courtyard of the house of the informant where appellant also lived and (v) there was annoyance and anger on the part of the appellant ever since the informant had contracted second marriage with the deceased more so because she was in the family way which seemingly posed a threat to his property interests. 13. Learned counsel for the appellant has submitted that since the other accused persons have been acquitted the appellant also deserves to be acquitted because atleast his wife and mother-in-law were similarly situated as the appellant and they have already been acquitted and the said judgment has been accepted by the State and the informant. It has also been submitted that the motive alleged by the informant that crime was committed due to lust for property cannot be safely accepted because so long as the informant is alive he can do away with his property in any manner he likes and from his evidence it is clear that he has already married for the third time. He also advanced another submission that if the case against the appellant is now to be decided only on the basis of circumstantial evidence then the necessity of explaining all the circumstances to the accused as required by sec. 313 of the Code of Criminal Procedure have not been fully complied because attention of the appellant was drawn only to the deposition of witnesses and not to the circumstances. For this proposition he relied upon a judgment of the Supreme Court in the case of Sharad Birdhichand Sarda Vs. State of Maharashtra (A.I.R. 1984 S.C. 1622). 14. 313 of the Code of Criminal Procedure have not been fully complied because attention of the appellant was drawn only to the deposition of witnesses and not to the circumstances. For this proposition he relied upon a judgment of the Supreme Court in the case of Sharad Birdhichand Sarda Vs. State of Maharashtra (A.I.R. 1984 S.C. 1622). 14. in the aforesaid judgment in the case of Sharad Birdhichand Sarda (supra) the circumstance which had not been but to the accused was in respect of his absconding as appearing from the records of that case and hence the same was required to be put to the accused for explanation if any at the stage of Sec. 313 of the Cr.P.C. but in the present case the circumstances noticed above are not based upon records or materials other than those in the statements of the witnesses to which the attention of the accused has been drawn. However no deeper analysis of this issue is required in view of recent judgment of the Supreme Court in the case of State (Delhi Administration) Vs. Dharmpal. 2003 SCC (Cri) 1012. In that judgment there is reference to 1973 SCC (Cri) 1033 (Shivaji Sahabrao Babade Vs. State of Maharashtra and 2001 SSC (Cri) 87 (Basavaraj R. Patil Vs. State of Karnataka) and as a proposition of law it has been held that an omission to draw the attention of the accused to an inculpatory material ipso facto does not vitiate the proceedings. The accused must show prejudice to him and that failure of justice was occasioned by such omission. Such omission can also be made good by the appellate court by seeking explanation of the accused by calling upon his counsel. 15. On facts, no prejudice or failure of justice was either shown or even argued on behalf of the appellants. Hence, this court finds no good reasons to interfere in this case on account of alleged omission to meet the requirements of sec. 313 of the Cr.P.C, particulary when no circumstance is being taken into account which is not borne by deposition of witnesses to which appellants attention had been drawn. 16. Hence, this court finds no good reasons to interfere in this case on account of alleged omission to meet the requirements of sec. 313 of the Cr.P.C, particulary when no circumstance is being taken into account which is not borne by deposition of witnesses to which appellants attention had been drawn. 16. So far the submission that property interest of appellant could not be a legally tenable motive is concerned, it is sufficient to notice that the informant (P.W.10) is own father of the appellant who has categorically stated in the Fard-beyan, at the earliest, that his further marriage itself had caused annoyance to the appellant and apparently since the deceased, the second wife, came to be in family way with pregnancy of about 6 months, the annoyance increased. For motive in such circumstances, the annoyance and perception of threat as against real or legally tenable threat to property rights of the appellant are clearly sufficient. The evidence of appellants father against him on such a delicate issue relating to thoughts in the mind of the accused appellant based upon his conduct deserves to be accepted. The view of the trial court on this issue need no interference. 17. The acquittal of other accused persons by the trial court is based largely upon evidence of P.W.9. As discussed earlier, he is unreliable and the trial court committed an error in placing reliance upon him. Hence, there is no sustainable finding of the trial court to pose legal impediment in sustaining the conviction of the appellant if the findings of this court on the basis of proved circumstances indicated earlier warrant his conviction. It is a settled law that merely because the charge of conspiracy fails against one conspirator, it cannot be said that the conviction and sentence awarded to co-conspirator is illegal, Reference for this may be made to Saju (AIR 2001 Sand State Vs. Navjot SandhuC 175), Devender Pal Singh ( AIR 2003 S.C. 3365 ) and State Vs. Navjot Sandhu, 2005 Cri L.J. 3950 (S.C.) 18. Coming to the five main circumstances noticed earlier, it remains to be seen whether they constitute a chain, whether they have been explained by the defence and whether they are inconsistent with any inference other than guilt of the appellant. Navjot Sandhu, 2005 Cri L.J. 3950 (S.C.) 18. Coming to the five main circumstances noticed earlier, it remains to be seen whether they constitute a chain, whether they have been explained by the defence and whether they are inconsistent with any inference other than guilt of the appellant. On a careful consideration it has to be held that the circumstances form a chain of events leading to inference of guilt against the appellant beyond reasonable doubts. The entire facts and circumstances prove criminal conspiracy taking place to kill the deceased so as to eliminate the chance of her giving birth to a child in her womb and a likely or deemed threat to property interests of the appellant. He was one among few others very close to him who were last seen with the deceased at the place of occurrence, which was not a public place or an area in wilderness but the courtyard of residential house of the parties. The appellant had annoyance against the deceased, her step-mother and also motive. He did not inform his father, the informant and instead chose to sneak away from the house without offering any explanation at any stage. In view of all these facts and circumstances, this Court finds no illegility or infirmity in conviction of the appellant under sections 302 and 120-B of the I.P.C. The sentence also permits no interference. 19. On the basis of above discussions and findings the conviction and sentence awarded to the appellant are confirmed. The appeal is found to be without merits and is therefore dismissed.