Judgment 1. Altogether six accused persons are before us in the two appeals arising out of a common judgment challenging their conviction and sentence for the murder of one Kusum Devi, passed by the learned 3rd Additional Sessions Judge, Begusarai, in S. T. No. 221 of 1994 (State through Garbhu Thakur v. Lakhan Thakur and others). Ramji Thakur is the sole appellant in Cr. Appeal No. 289 of 1997, has been convicted under Section 302 of the Indian Penal Code read with Section 27 of the Arms Act, and has been sentenced to undergo rigorous imprisonment for life and a fine of Rs. 5,000/-, and in default to undergo rigorous imprisonment for six months. He has also been convicted under Section 27 of the Arms Act arid has been sentenced to undergo rigorous imprisonment for a period of three years. The appellants of Cr. Appeal No. 242 of 1997 have been convicted under Sections 302/149 of the Indian Penal Code and have been sentenced to undergo rigorous imprisonment for life, and a fine of Rs. 5,000/- in default of payment of fine to undergo rigorous imprisonment for six months. Appellant Lakhan Thakur has also been convicted under Section 27 of the Arms Act and has been sentenced to undergo rigorous imprisonment for a period of three years. The sentences shall run concurrently. Appellants Ramji Thakur, Lakhan Thakur, Shankar Thakur, and Hare Ram Thakur are full brothers, and are sons of Nirdhan Thakur. Appellant Bharat Thakur is the son of Ramji Thakur, and appellant Pappu Thakur is the son of Lakhan Thakur. In other words, four appellants are full brothers, and the other two appellants are nephews of those appellants. 2. One Garbhu Thakur (P. W. 3) lodged a Fardbeyan (Ext. 1), alleging therein that he had land dispute with Lakhan Thakur (appellant), and Ramji Thakur (appellant), which have given rise to litigations between them. The informant and the appellants are agnates and share the same house after partition. It is further alleged that brick-bats had been thrown in the house of Ramji Thakur (appellant), and for which they suspected the informant. On 4-7-1993, at about 9 p.m., while the informant, his wife (P. W.2), his minor daughter, Rupam Kumari (P.W. 1), and his mother Kusum Devi, were sitting in their Varandah the appellants entered into the house of Lakhan Thakur. On 4-7-1993, at about 9 p.m., while the informant, his wife (P. W.2), his minor daughter, Rupam Kumari (P.W. 1), and his mother Kusum Devi, were sitting in their Varandah the appellants entered into the house of Lakhan Thakur. Ramji Thakur was armed with a country-made pisrtol, and the remaining appellants were armed with lathis. Lakhan Thakur gave a call to kill them. Frightened by such sudden approach of the appellants and their call for murder of the informant and his mother, they ran out of their house to save their lives. The appellants also chased them and ultimately surrounded her. Ramji Thakur fired at Kusum Devi from his pistol beneath the chin, as a result of which she started bleeding and fell down. The appellants thereafter took to the heels. Soon thereafter, Rupam Kumari (P. W. 1), and Bachi Devi (P. W. 2) reached the place of occurrence. Kusum Devi was carried to the Hospital where she succumbed to her injury before any effective treatment could be given to her. P. W. 3 narrated the incident which was recorded as his fardbeyan at about 11 p.m. the same night in the hospital. Inquest report (Ext. 3) was prepared. 3. Investigation commenced and charge-sheet in the course was filed against the six appellants. They were committed to the Court of Sessions to stand their trial under Section 302 read with Section 34 of the Indian Penal Code, as well as under Section 27 of the Arms Act. 4. The prosecution examined altogether five witnesses to prove the charges. P. W. 1 is Rupam Kumari, minor daughter of the informant. She was present along with her parents and her grand-mother in the Angan at about 9 p.m., when the appellants had stormed in the house variously armed. She has deposed to the effect that at that point of time somebody had thrown brick-bats in the house of the appellants. Ramji Thakur, Lakhan Thakur, Hare Ram Thakur, and Pappu Thakur entered her house. Ramji Thakur and Lakhan Thakur were armed with pistol. Hare Ram Thakur and Pappu Thakur were armed with Dandas. They started hurling abusive language against her grand-mother (deceased), and her father (the informant P. W. 3), and also threatened to kill them. Both of them, therefore, ran out of their house. The appellants chased them. She along with her mother (P. W. 2) followed them. After P. Ws. Hare Ram Thakur and Pappu Thakur were armed with Dandas. They started hurling abusive language against her grand-mother (deceased), and her father (the informant P. W. 3), and also threatened to kill them. Both of them, therefore, ran out of their house. The appellants chased them. She along with her mother (P. W. 2) followed them. After P. Ws. 1 and 2 reached Bengali Das lane, they found that Ramji Thakur had fired a pistol shot at her grand-mother who had fallen down and had become unconscious. Her grand-mother was taken to the hospital where she died. She identified the six accused persons who were present in the dock. She has admitted in her cross-examination that a case had been filed against Kusum Devi, and a long-standing litigation was pending between Baleshwar Thakur and Ramji Thakur. One such land is by the side of their house. Another plot of land is near the railway line. The houses of Ramji Thakur and Hare Ram Thakur are at some distance from her house. She has further stated in her cross-examination that her family members and the appellants are not on talking terms. It appears from her deposition that she was aged about 10 years at the time of her deposition on 1-8-1996, and the occurrence had taken place on 4-7-1993. She was, therefore, aged 7 years at the time of the occurrence. She has deposed with reasonable amount of consistency and without contradiction insofar as core of the prosecution case is concerned. Although the prosecution case is that the appellants six in number had stormed in the Angan, whereas she stated in her examination-in-chief that only four of them had entered into Angan. It must also be observed that she also stated that she had reached the place of occurrence, namely Bengali Das lane, after her grand-mother had already been shot at. She had, therefore, not seen as to who had delivered the pistol-shot. Although she was ofa tender age at the time of the occurrence as well as at the time of her deposition, she does not create an impression in our mind that she was trying to make misleading statements. In fact, she has, consistent with the prosecution case, stated that she had approached Bengali Das lane after the pistol shot had been delivered, and does not make any claim to have seen her grandmother receiving the pistol-shot. 5. In fact, she has, consistent with the prosecution case, stated that she had approached Bengali Das lane after the pistol shot had been delivered, and does not make any claim to have seen her grandmother receiving the pistol-shot. 5. P. W. 2 is Bachi Devi, the wife of the informant. She has stated in her deposition that the fateful day was a Sunday. At about 9 p.m., she along with her mother-in-law, daughter, and husband were sitting in the Angan. Somebody at that point of time had thrown brick-bats on the roof of the house of Lakhan Thakur. Ramji Thakur, Hare Ram Thakur, Bharat Thakur and Shankar Thakur came into their house. Ramji Thakur and Lakhan Thakur were armed with pistols. Shanker Thakur and others were armed with lathis. They pointed pistol towards her husband. They said that he should be killed, upon which her mother-in-law and husband ran out of the house. The accused persons chased them. After reaching Bengali Das lane, Ramji Thakur crossed them, and encircled them and fired a pistol shot at her mother-in-law, as a result of which she fell down and became unconscious. She was taken to the hospital and died during the course of the treatment. She claims to have identified all the accused persons. She has in her cross-examination given a description of the location of the houses of two parties. She has also stated that the house of Bengali Das was at a distance of three laggies from her house. She has also admitted in her cross-examination that two parties are engaged in a land dispute. The accused persons had stayed for about two minutes in the Angan. She had heard sound of the firearm shot after running for about two minutes. She had gone to the hospital along with her mother-in-law. It appears to us on perusal of evidence of P. W. 2 that she was aged about 25 years at the time of her deposition, which means that she was little more than 22 years at the time of the occurrence. It would also mean that she had become a mother at the age of 15 years. Her deposition is almost of the same nature as that of P. W. 1. She has supported the core of the prosecution case, no vital discrepancy has been found in her deposition. 6. P. W. 3 is Garbhu Thakur, the informant. It would also mean that she had become a mother at the age of 15 years. Her deposition is almost of the same nature as that of P. W. 1. She has supported the core of the prosecution case, no vital discrepancy has been found in her deposition. 6. P. W. 3 is Garbhu Thakur, the informant. He was aged about 32 years at the time of his deposition. He has stated in his examination-in-chief that, on 4-7-1993, at about 9 p.m., which was a Sunday, he along with his wife, mother, his daughter were in their house. Some unknown persons had thrown brick-bats in the house of Lakhan Thakur as a result of which Ramji Thakur, Hare Ram Thakur, Pappu Thakur and Bharat Thakur entered their house and used abusive language. Ramji Thakur and Lakhan Thakur were armed with pistols and the rest were armed with lathis. They gave a call for their murder, upon which he and his mother ran out of their house. The accused persons chased them. The accused persons surrounded his mother opposite the house of Bengali Das. Ramji Thakur fired a shot in his mothers mouth as a result of which she fell down and became unconscious. He and the co-villagers had taken his injured mother to the Government Hospital where she died. The Sub-Inspector of Police reached the hospital and recorded the statement of the informant. He recognized all the accused persons who were present in the dock. He has admitted in his cross-examination that he and other accused persons are engaged in land dispute and were also parties to proceedings under Section 107 of the Code of Criminal Procedure. Proceedings under section 145 of the Code of Criminal Procedure (hereinafter referred to as Cr. P. C.) are also pending. He has further stated that the accused persons shared a common Angan. Earlier they used to share the Verandaha also. The accused persons have their separate houses in the same plot (Kheshra). The prosecution party and the accused persons are agnates. He has further stated in his cross-examination that he had taken his mother to the Hospital. The accused persons had a persisting suspicion that the informants side had been throwing brickbats in their houses. The accused persons have their separate houses in the same plot (Kheshra). The prosecution party and the accused persons are agnates. He has further stated in his cross-examination that he had taken his mother to the Hospital. The accused persons had a persisting suspicion that the informants side had been throwing brickbats in their houses. On a perusal of the deposition of P. W. 3, it appears to us that he was an eye-witness at both the places of the occurrence(s) and had seen the firing of pistol shot at his mother. He has supported the core of the case in the F. I. R., and the prosecution has not been able to elicit any contradiction in his detailed cross-examination. 7. P. W. 4 (Dr. P. N. Singh) is a Medical Officer, then posted at Sadar Hospital Begusarai and had conducted the postmortem examination on the dead body on 5-7-1993, in the said hospital. He had, on the dead body of Kusum Devi, found the following ante-mortem injuries : (i) wound of entry about 1/2" diameter with inverted margin on the root of the neck of left lateral side. (ii) wound of exit 11/2" x 1/2" with everted margin communicating to injury No. 1 with compound commutated fracture of mandible. Floor of the mouth was torn of size l 1/2" x 1/2". Tongue was torn 1" x 1/2" size. According to P. W. 1, both the injuries were caused by fire arm and the death was caused due to shock and haemorrhage on account of the above two injuries. In cross-examination, he has rightly stated that he cannot say the distance from where the above injuries were caused. The doctor did not find any charring and blackening or burning near the wound of entry. In cross-examination, his further evidence is that if the fire-arm was used from the distance of 2 to 3 feet, there may be charring and blackening or burning. Thus, from the evidence of P. W. 4, read with post-mortem report (Ext. 2), it is evident that Kusum Devi died on account of injury caused by fire-arm. It is evident from his deposition that he found entry wound as well as exit wound. The entry wound was smaller in diameter and exit wound was bigger in diameter which is consistent with medical jurisprudence. 2), it is evident that Kusum Devi died on account of injury caused by fire-arm. It is evident from his deposition that he found entry wound as well as exit wound. The entry wound was smaller in diameter and exit wound was bigger in diameter which is consistent with medical jurisprudence. He found entry wound at the root of the neck on the left side, and found the exit wound with compound commutated fracture of the mandible (the lower jaw). It further appears, that the pistol shot, while making its exit, travelled through the floor of the mouth and tongue and were severely injured. It appears to us that the medical evidence is fully consistent with the prosecution case and the deposition of P. Ws. 1 to 3. 8. P. W. 5 (Baleshwar Singh) is an Advocate clerk. He is a formal witness and proved the inquest report (Ext. 3), as well as the police diary (Ext. 4). 9. After the prosecution concluded its evidence, the accused persons were examined under Section 313 of the Code of Criminal Procedure. They have stated that they are innocent and have been falsely implicated, and claimed to be tried. 10. The defence has examined two witnesses to disprove the prosecution case. D.W. 1 (Ram Kishun Bhagat) is a local Chaukidar. He has deposed to the effect that, on 4-7-1993 at 8 to 9 p.m., he was in his village going from the Pokhar to his residence. He was followed by one Meghan Mahto, a co-villager. When he was at the Chowk, he heard the sound of firing of a pistol shot. He proceeded further and found near the house of Bengali Das that a woman had fallen on the ground and none else was there. There was no light and it was a dark night. A lantern was brought from the house of Bengali Das and with the help of its light, he noticed that she was Kusum Devi. A few minutes thereafter, her son Garbhu Thakur arrived. Ramji Thakur and Kusum Devi are engaged in a case under Section 420 of the Indian Penal Code wherein allegations have been levelled against her for getting a piece of land registered impersonating as the wife of one Jeth Tanti. He has stated in his cross-examination that he had seen the shot hitting Kusum Devi from a distance of one and half lagies. He has stated in his cross-examination that he had seen the shot hitting Kusum Devi from a distance of one and half lagies. He further deposed to the effect that he had not seen the accused running away after he had fired the shot, because of the darkness. 11. D. W. 2 (Meghan Mahto) is a co-villager. He has stated in his examination-in-chief that on 4-7-1993, at about 9 p.m. while he was going from Pokhar to his residence he found a woman fallen on the ground. He had also heard a shot of fire-arm which he has heard when he had reached the Chowk and the place from where she had fallen was at a distance of 10-12 Lagis from the Chowk. A lantern was brought and he recognized her as the mother of Garbhu Thakur. 10-15 minutes later Garbhu Thakur, his wife, and daughter reached there had not seen the assailant. 12. Both the defence witnesses have deposed to the same effect, and have in fact supported the prosecution case to the extent that they had seen Kusum Devi lying on the ground opposite the house of Bengali Das, and at the same place. The prosecution party and the accused persons were engaged in litigations. Both of them have not seen the assailant. The defence witnesses have undoubtedly supported and have helped the prosecution in proving the murder of Kusum Devi at about 9 p.m. on 4-7-1993 at the same place. In other words, the defence witnesses have fully supported the prosecution case as to the commission of the offence and the place of occurrence. The defence has proved the following exhibits : Exhibit A and A/1 -notices under sections 107 and 145 of the Code of Criminal Proceedings. Exhibit-B-A formal F. I. R. of Begusarai P. S. Case No. 20/1990. 13. In view of the materials on record summarized hereinabove, the learned trial Court held that brick-bats have been thrown into the house of Ramji Thakur which had infuriated him. Therefore, six accused persons had stormed into the house of the informant and gave a call to kill Kusum Devi and the informant. The learned trial Court has further found that Kusum Devi ran out of the house to save her life, followed by the informant. Therefore, six accused persons had stormed into the house of the informant and gave a call to kill Kusum Devi and the informant. The learned trial Court has further found that Kusum Devi ran out of the house to save her life, followed by the informant. They were chased by the accused persons who, opposite to the house of Bengali Das, surrounded her and Ramji Thakur had delivered a pistol shot at the base of her neck as a result of which she had fallen down on the ground and had become unconscious. In view of consideration of materials on record learned trial Court found Ramji Thakur guilty of committing murder of Kusum Devi and the remaining five appellants also of harbouring and sharing common object of committing her murder. In other words, learned trial Court found the charges fully proved and convicted and sentenced the aforesaid appellants. Hence these appeals at the instance of the six appellants. 14. Learned counsel for the appellants has submitted that there was no immediate cause or provocation for committing the murder. He next submits that the manner of occurrence is not in the natural course. He next submits that the Investigating Officer has not been examined. He further submits that no independent witness has been examined in support of the prosecution case. He also submits that bullet has not been seized. 15. Learned Public Prosecutor has submitted that P. Ws. 1 to 3 are eye-witnesses and have consistently deposed in support of the prosecution case who were in fact named in the F. I. R. They were examined by the police soon after the Fardbeyan was recorded. He has also submitted that judicial experience shows that an informant does not spare the real culprits, although there is a tendency to falsely implicate others. He next submits that motive, intention, manner of occurrence, i.e. genesis of the case, have been fully proved in the present case. He also submits that the evidence of independent witnesses have been proved by the defence who have supported the occurrence. In view of the prosecution case, there was no other independent witnesses. There is no material contradiction in the evidence of the prosecution witnesses and the same is indeed supported by the defence witnesses. The medical evidence is fully consistent with the prosecution case. In view of the prosecution case, there was no other independent witnesses. There is no material contradiction in the evidence of the prosecution witnesses and the same is indeed supported by the defence witnesses. The medical evidence is fully consistent with the prosecution case. He has also submitted that non-examination of the Investigating Officer does not per se goes to the root of the prosecution case and does not per se adversely affect the prosecution case. No prejudice at all has caused to the accused persons in the present case because the case diary is on record and marked as exhibit. In his submission, prejudice is ultimate test in criminal trial. He has relied on the following judgments : (i) 1996 SCC (Cri) 271 : (1996 Cri LJ 1653) (Behari Prasad and others V/s. State of Bihar). (ii) Panchdeo Singh V/s. The State of Bihar, 2000 1 PLJR 364 . He lastly submits that a case charged under Section 302 read with Section 149 of the Indian Penal Code can in appropriate case be converted into one under Section 302 read with Section 34 of the Indian Penal Code. In the present case, overt-act has been alleged and proved against the six appellants. He has further relied on the judgment reported in AIR 1925 Privy Council 1 : (1925 (26) Cri LJ 431) (Barendra Kumar Ghosh V/s. King Emperor Paragraph 7), and Bolineedi Venkataramaiah & Ors. V/s. State of Andhra Pradesh, AIR 1994 SC 76 : 1994 Cri LJ 61. 16. Learned counsel for the appellants has, in reply, submitted that non-examination of the Investigating Officer has resulted in prejudice to the appellants. The act of stone-throwing has not been proved, and pieces of brick-bats have not been seized and marked as Exhibits. 17. We have perused the materials on record and considered the submissions of learned Counsel for the parties. It appears to us that the occurrence had taken place at about 9 p.m. on 4-7-1993. The informant and others had taken her to Sadar Hospital where treatment was sought to be administered but she died. The Inspector of local police station reached and recorded the Fardbeyan narrated by the informant at 11 p.m. the same night. It is evident that Fardbeyan was recorded and a formal F. I.R. was drawn up with utmost promptitude. The informant and others had taken her to Sadar Hospital where treatment was sought to be administered but she died. The Inspector of local police station reached and recorded the Fardbeyan narrated by the informant at 11 p.m. the same night. It is evident that Fardbeyan was recorded and a formal F. I.R. was drawn up with utmost promptitude. All the prosecution witnesses have consistently deposed to the effect that both sides are agnates, share the same house, and same Angan. They also used to share same Verandah earlier. They have also stated that they are engaged in long-pending litigations. The accused persons had started a criminal case against Kusum Devi for executing a registered sale deed perhaps with the allegation of impersonating as wife of Jeth Tanti. Notices with respect to other proceedings under Sections 107 and 145 of the Cr. P. C. have also been marked as exhibits which clearly show that they were engaged in longstanding litigations. It further appears from perusal of Ext. B that the accused persons had particular animus against Kusum Devi for having registered the document. This is further accentuated by the fact that they are close agnates, share a common house, and common Angan which seems to have been partitioned. In fact, they had earlier shared Verandah. P. Ws. 1 to 3 have consistently deposed to the effect that brick-bats used to be thrown into the house of Ramji Thakur. It was thrown into the house which had in furiated the accused persons and as a result of which they had stormed into the house of the informant. There is no material on record to show as to who had been doing it and with what motive, but P. Ws. 1to 3 have deposed that the accused persons had been nursing a long-standing grievance against the informant and his family that they were behind it. The genesis of the occurrence, as well as the motive for the same, is thus clearly established. 18. We now come to the manner of occurrence. All the prosecution witnesses have consistently deposed that shortly before 9 p.m. on 4-7-1993, brick-bats had fallen in the house of the accused persons. This was the immediate provocation to them, being the genesis of occurrence. 18. We now come to the manner of occurrence. All the prosecution witnesses have consistently deposed that shortly before 9 p.m. on 4-7-1993, brick-bats had fallen in the house of the accused persons. This was the immediate provocation to them, being the genesis of occurrence. This must have infuriated them no end, being a very nagging recurrence, and as such they forcibly entered into the house of the informant with vengeance. Ramji Thakur and Lakhan Thakur were armed with pistols, and the remaining accused persons were uniformly armed with lathis. As soon as they entered into the Angan, they gave a call to murder Kusum Devi as well as Garbhu Thakur. We have indicated hereinabove that Ext. 2 was the real reason for the animus on the part of the accused persons against Kusum Devi, coupled with the nagging recurrence of stone-throwing. In this background, Kusum Devi must have thought that she was perhaps the target, she must have run out of the house in a sudden fit of self-protection to save her life. Noticing that their target was escaping the accused persons must have followed her vigorously. Garbhu Thakur must have regained his nerve and followed the accused persons to save his mother. By the time he reached the place opposite to the house of Bengali Das, the act was complete and the fatal shot had been delivered into the body of Kusum Devi. The assemblage of other persons including the defence witnesses, her shifting to the Sadar Hospital and her brought-dead condition have been proved by the prosecution witnesses. 19. The most remarkable feature of this trial is that the two witnesses examined by the defence have indeed supported the prosecution case as to the mode and manner of occurrence. The prosecution is, therefore, substantially relieved of its onus to prove the first part of the prosecution case. The motive of the occurrence is fully proved. 20. As to the second part, all the witnesses have consistently deposed that it was Ramji Thakur who had delivered the fatal pistol shot with the minor variation of the time of arrival of Garbhu Thakur. The prosecution witnesses have stated that Garbhu Thakur had started running on the heels of his mother and they were in a position to witness, Ramji Thakur delivering the pistol shot at Kusum Devi. The prosecution witnesses have stated that Garbhu Thakur had started running on the heels of his mother and they were in a position to witness, Ramji Thakur delivering the pistol shot at Kusum Devi. This is fully supported by the medical evidence which also shows that the shot of fire-arm had been delivered at the base of her neck. The medical evidence further shows that the wound had made its entry at the base of the neck, had travelled upwards as a result of which it had shattered the mandible (the lower jaw) and the tongue. Furthermore, it is noticeable that entry wound was smaller in diameter than the exit wound which is fully supported by the medical jurisprudence. The identity of Ramji Thakur being the main assailant has, therefore, been proved beyond all reasonable doubts. 21. We must deal with the contention advanced by the learned Public Prosecutor that the charge under Section 302 read with Section 149 of the I. P. C., as is the present case, can be converted into conviction under Section 302 read with Section 34 of the I. P. C. provided overt-act or active participation of the accused persons is proved. As found hereinabove, six appellants had stormed into the house of the informant, all of whom variously armed, and had given the call to kill them by saying that, "Aaj Sale Ko Chorenge Nahi". As soon as they noticed Kusum Devi running out of the house, creating an impression in their minds that she was escaping from the clutches, all the six started chasing her. Each one of them were armed. After they were able to approach her opposite the house of Bengali Das, they had encircled her. All this shows more than active participation of the accused persons in furtherance of the common intention to exterminate Kusum Devi because she had executed a registered document. Learned Public Prosecutor is, therefore, right in his submission that the charge under Section 302/149 of the I. P. C. in the present case has to be converted into one Section 302 read with Section 34 of the I. P. C. 22. Learned Public Prosecutor has rightly relied on the judgment of the Supreme Court reported in the case of Bolineedi Venka-taramaiah (1994 Cri LJ 61) (supra), as well as the judgment of Division Bench of this Ganga Paswan & Ors. Learned Public Prosecutor has rightly relied on the judgment of the Supreme Court reported in the case of Bolineedi Venka-taramaiah (1994 Cri LJ 61) (supra), as well as the judgment of Division Bench of this Ganga Paswan & Ors. V/s. The State of Bihar, 2000 2 PLJR 87 . Learned Public Prosecutor has relied on the judgment Hardev Singh V/s. Harbhej Singh & Ors., AIR 1997 SC 1487 : 1997 CriLJ 727. 23. I must now deal with the contention advanced by the learned counsel for the appellants that non-examination of the I. O. has resulted great prejudice to the appellants. The Supreme Court has observed in its judgment in the case Behari Prasad (1996 Cri LJ 1653) (supra) as follows : "It, however, appears to us that the entire case diary should not have been allowed to be exhibited by the learned Additional Sessions Judge. In the facts of the case, ft appears to us that the involvement of the accused in committing the murder has been clearly established by the evidences of the eye-witnesses. Such evidences are in conformity with the case made out in FIR and also with the medical evidence. Hence, for non-examination of Investigating Officer, the prosecution case should not fail. We may also indicate here that it will not be correct to contend that if an Investigating Officer is not examined in a case, such case should fail on the ground that the accused were deprived of the opportunity to effectively cross-examine the witnesses for the prosecution and to bring out contradictions in their statements before the police. A case of prejudice likely to be suffered by an accused must depend on the facts of the case and no universal strait-jacket formula should be laid down that non-examination of Investigating Officer per se vitiates a criminal trial. These appeals, therefore, fail and are dismissed. The appellants who have been released on bail should be taken into custody to serve out the sentence." 24. It is thus evident that non-examination of the I. O. can adversely effect prosecution case if it has resulted in prejudice to the accused persons. In the facts and circumstances of the present case, we are of the view that no such prejudice at all has occurred to the accused persons. The case diary has been marked as Exhibit. It is thus evident that non-examination of the I. O. can adversely effect prosecution case if it has resulted in prejudice to the accused persons. In the facts and circumstances of the present case, we are of the view that no such prejudice at all has occurred to the accused persons. The case diary has been marked as Exhibit. It was open to the accused persons to point out any contradiction between the entries in the case diary and the evidence on record. It is apparent from a perusal of the evidence of both sides that no such attempt was made during their examination. Furthermore, both the defence witnesses have fully supported the motive and manner as well as the situs of the occurrence. In that view of the matter, we conclude that non-examination of the I. O. in the present case has not caused any prejudice to the accused persons. 25. Learned counsel for the appellants has also submitted that no independent witness has been examined in support of the prosecution case. It is evident that there were five eye-witnesses, three of whom are family members and have been examined as prosecution witnesses. Only two independent witnesses who witnessed the occurrence have examined as defence witnesses and have supported the case of the prosecution as to the mode and manner of occurrence. Furthermore, the prosecution witnesses have proved the prosecution case without any material contradiction in the evidence. 26. In the result, both the appeals are dismissed. The accused persons shall surrender before the learned trial Court to serve out the remaining periods of sentences. Their bail bonds are cancelled. 27. The Secretary High Court Legal Services Committee, Patna, shall ensure pay-ment of Rs. 2,500/- (rupees two thousand and five hundred only) to Mr. Dinesh Prasad Sharma, learned counsel, for assisting this Court as Amicus Curiae.