JUDGMENT A.C. Upadhyay, J. 1. The accused-appellants were put on trial, for commission of offence under Section302/341/323, read with 34 of IPC, before the learned Additional Sessions Judge, Belonia, South Tripura. On conclusion of trial, the learned trial Court, by its judgment dated 03.03.2003, convicted the accused appellants under Section 304 Part-I of IPC read with Section 34 of IPC and sentenced each of them to suffer rigorous imprisonment for 6(six) years and to pay a fine of Rs.6,000/-, in default of payment of fine to suffer further RI for one year. The learned trial Court further sentenced the appellants to suffer simple imprisonment for 15 days, for commission of offence under Section 341/34 of IPC and also to suffer simple imprisonment for 30 days, for commission of offence under Section 323 read with Section 34 of IPC and directed that all the sentences imposed on the accused-appellants would run concurrently. 2. Facts, leading to filing of this appeal, may be narrated, in brief, as follows: The informant, Smti. Laxmi Barman (P.W.2), orally lodged information of the occurrence, having found the Officer-in-Charge of P.R. Bari Police Station at Belonia Sub-Divisional Hospital, on 04.10.2000 at about 6.15 p.m. 3. FIR lodged by P.W.1 reveals as follows: At about 12 noon on 04.10.2000, Utam Barman (P.W.4), son of P.W.2 had gone to the paddy field. On his way to the field, all the accused persons armed with lathi, axes etc. attacked Uttam Barman(P.W.4). Upon hearing the alarm raised by Uttam Barman, the first informant Laxmi Barman (P.W.2), along with her husband Aswini Barman (deceased), Kajal Barman (PW-3), i.e. wife of Uttam Barman, rushed to the place of occurrence together and requested the accused persons not to assault Uttam (PW.4). Even in spite of their earnest request, the accused-appellants did not spare anyone of them, rather the accused-appellants severely assaulted the first informant (P.W.2) and her husband (deceased), and daughter-in-law Kajal (P.W.3). The accused-appellants also assaulted Uttam Barman (PW.4) and Aswini Barman (deceased) on their heads with axe. As a result of said assault Aswini Barman and Uttam sustained bleeding injuries on their heads. Immediately after the occurrence Aswini and Uttam (P.W.4) were taken to Belonia Hospital, for treatment. However, Aswini succumbed to the injuries inflicted by the accused-appellants. First informant (P.W.2), her son (PW4) and daughter-in-law (PW3), were treated in Belonia Sub-Divisional Hospital, for the injuries sustained by them in the incident. Immediately after the occurrence Aswini and Uttam (P.W.4) were taken to Belonia Hospital, for treatment. However, Aswini succumbed to the injuries inflicted by the accused-appellants. First informant (P.W.2), her son (PW4) and daughter-in-law (PW3), were treated in Belonia Sub-Divisional Hospital, for the injuries sustained by them in the incident. 4. The Officer-in-charge (P.W.8) of P. R. Bari Police Station, on the basis of the said information registered a case, under Sections 341/326/307/302 and 34 of IPC, against the accused appellants and launched investigation. On completion of the investigation, the investigating officer submitted chargesheet against the accused-appellants, alleging commission of offence under Section 341/323/302/34 of IPC. 5. Learned Addl. Sessions Judge in the course of trial framed formal charges under Sections302/341/323 read with 34 of IPC against all the above named accused appellants and on reading over and explaining the charges aforesaid, all the accused persons pleaded not guilty and claimed to be tried. 6. The prosecution side examined as many as eight witnesses and also produced documents and material exhibits, to establish the charge against the accused appellants. The learned trial Court examined the accused appellants under Section 313, Cr.P.C., where the accused appellants took the stand of total denial and expressed their willingness to adduce defence witnesses. Accordingly, the learned trial Court recorded the testimony of three defence witnesses produced on behalf of the accused appellants. 7. According to the defence stand as reflected by the defence witnesses, the deceased Aswini Barman had died at Belonia Sub-Divisional Hospital, due to his illness, as he was a patient of Asthma. The defence witnesses further stated that on the date of occurrence, Uttam Barman sustained injuries by falling from a tree and on hearing the news, the deceased Aswini Barman also fell down in the paddy field of Khokan Shil, from where he was taken to Belonia Sub-Divisional Hospital, for treatment. According to defence story, Aswini Barman had died due to the injuries sustained by him on his forehead due to falling in the paddy field of Khokan Shil and due to aggravation of his respiratory problem. 8. The learned Sessions Judge, upon hearing the learned Counsel and on evaluation of the evidence of the prosecution witnesses, convicted the accused persons under Section 304, Part-I/341/323read with Section 34 of IPC and sentenced them as aforesaid, giving rise to this appeal. 9. I have heard Mr. 8. The learned Sessions Judge, upon hearing the learned Counsel and on evaluation of the evidence of the prosecution witnesses, convicted the accused persons under Section 304, Part-I/341/323read with Section 34 of IPC and sentenced them as aforesaid, giving rise to this appeal. 9. I have heard Mr. S. Talapatra, learned senior counsel appearing for the appellants and Mr. A. Ghosh, learned Additional Public Prosecutor for the State-respondent. 10. It would be apposite to depict herein below the core of the prosecution evidence, in order to effectively analyze the arguments advanced by the learned Counsel for the accused/appellants as well as the learned Additional P.P, representing the State of Tripura. 11. Shri Rabindra Kr. Paul, P.W.1, is the Upa-pradhan of Barpathari Gram Panchayat. In his deposition he confirmed that on 05.10.2000 at about 11 a.m. the investigating Officer of P. R. Bari Police Station, visited the western side of the house of the victim and seized two lathies, in his presence by preparing a seizure list. P.W.1 proved the seizure list and seizure memo and also identified his signature thereon, in the seizure list. P.W.2 is the first informant and also one of the injured in the occurrence. According to P.W.2, on the date of occurrence at about 12 noon, her son Uttam Barman (PW4), was proceeding to his work, by the side of the house of Khokan Shil, to work in the paddy field. The accused appellants above named, armed with lathi attacked Uttam. At that time her grand daughter Swapna Das (P.W.5), raised alarm and on hearing the alarm of her grand daughter, she along with her husband Aswini Barman (deceased), daughter-in-law Smti. Kajal Barman (P.W.3), rushed to the paddy field of Khokan Shil. On reaching the place of occurrence all the witnesses requested the accused appellants to save the life of Uttam Barman (P.W.4), but the accused appellants did not pay any heed to their request and instead the accused appellants started assaulting all of them with lathis. 12. P.W.2, deposed that the accused persons forcefully snatched away the axe from the hand of her son, Uttam Barman and assaulted him by the said axe. As a result of the said assault Uttam Barman (PW.4) sustained severe bleeding injuries and fell down. 12. P.W.2, deposed that the accused persons forcefully snatched away the axe from the hand of her son, Uttam Barman and assaulted him by the said axe. As a result of the said assault Uttam Barman (PW.4) sustained severe bleeding injuries and fell down. P.W.2 also stated that the accused persons assaulted her husband with the axe on his forehead and as a result of the assault, her husband lost his senses, and fell on the ground. After the assault, when the accused persons left the place of occurrence, P.W.2 with the help of the neighbours, shifted her son (PW.4) and husband (deceased), in a commander jeep vehicle to Belonia Hospital, for treatment. According to P.W.2, her husband died in Belonia Hospital, on the date of occurrence in the evening, due to the injuries caused upon him by the accused appellants. In the evening when the O/C of P. R. Bari Police Station(P.W.8) came to Belonia Hospital, she formally narrated the entire story to the police officer, which was recorded as first information report, where she put her signature. She further stated that on the night of the occurrence her son was also referred to G. B. Hospital, Agartala, from Belonia Hospital for better treatment and her son was discharged from G. B. Hospital after 23 days. 13. Smti. Kajal Barman (P.W.3) is the wife of Uttam Barman (PW4). Fully corroborating the testimony of P.W.2 in material particulars, P.W.3 established the complicity of all the accused appellants in the commission of offence alleged. According to P.W.3, she rushed to the place of occurrence together with her mother-in-law (P.W.2) and father-in-law (deceased), on hearing hue and cry raised by her husband. She further confirmed in her deposition that while trying to save her husband, she was also assaulted by the accused persons by means of lathi. 14. Uttam Barman, P.W.4, who is one of the injured in this case, fully corroborated the statement of other eye witnesses in material particulars. P.W.4 deposed that he was going to paddy field with an axe in his hand and on the way when he reached the paddy filed of Khokan Shil he was attacked by the accused appellants with lathi. In order to save himself P.W.4 tried to run away from the place of occurrence. P.W.4 deposed that he was going to paddy field with an axe in his hand and on the way when he reached the paddy filed of Khokan Shil he was attacked by the accused appellants with lathi. In order to save himself P.W.4 tried to run away from the place of occurrence. However, the accused appellants chased him and caught him near the land of Khokan Shil and thereafter the accused/appellants jointly and severally assaulted him with lathis. P.W. 4 further confirmed that on hearing his hue and cry, his parents and wife immediately came to the paddy field of Khokan Shil. Though his wife and parents requested the accused persons to save his life, but the accused persons in turn assaulted their parents with lathis. P.W.4 stated that the accused Jatan Sukladas forcefully snatched away the axe from his hand and gave him a blow on his head by the back side of the axe. As a result, he fell down on the ground and lost his senses. According to P.W.4 the other accused persons had also assaulted him and his father, mother and wife by lathi. When P.W.4 regained his senses, he was in Belonia Hospital. In the night of the incident he was referred to G. B. Hospital, Agartala, for better treatment, where he was hospitalized for long 23 days. Upon a query made by the trial Court PW.4 stated that out of fear of the accused appellants he had to leave his hearth and home and at the time of trial he was residing at Kalinagar. 15. Kumari Swapna Das, P.W.5 is the niece of Uttam Barman. She was 12 years old at the time of occurrence and was taking bath in the nearby pond situated in the land of Khokan Shil. While taking bath, P.W.5 saw the accused appellants chasing her maternal uncle (Uttam Barman, P.W.4) in the paddy filed of Khokan Shil. On seeing this she loudly raised alarm to save the life of her maternal uncle (PW.4). Hearing her alarm her grandfather (deceased), her grandmother (P.W.2) came to the paddy filed of Khokan Shil and tried to save Uttam Barman from being assaulted by the accused appellant, but the accused appellants did not listen to them and rather assaulted all the victims with lathi. Hearing her alarm her grandfather (deceased), her grandmother (P.W.2) came to the paddy filed of Khokan Shil and tried to save Uttam Barman from being assaulted by the accused appellant, but the accused appellants did not listen to them and rather assaulted all the victims with lathi. P.W.5 also confirmed that there was an axe in the hands of P.W.4 and the accused appellant Janardhan Chakraborty snatched away the axe from him and gave a blow on the head of her maternal uncle by the axe, her maternal uncle fell on the ground. According to P.W.5, accused-appellant Janardhan Chakraborty, also gave a blow on the forehead of her grandfather by the same axe as a result of which her grandfather also fell down on the ground. After assaulting the victims the accused persons fled away from the place of occurrence. 16. Smti. Champa Rani Saha, P.W.6 was taking her lunch at the time of occurrence. On hearing hue and cry by the side of the house of Raju Shil and on hearing the alarm she went to the side of the land of Khokan Shil and saw that accused appellants above named were chasing Uttam Barman. P.W.6 also stated that Uttam Barman had an axe in his hand. P.W.6 deposed that she saw accused Janardhan Chakraborty, Krishnadhan Das coming towards Uttam Barman and also saw Jatan Sukladas assaulting Uttam Barman by a lathi. P.W.6 also confirmed that parents and wife of Uttam Barman had also gone to the place of occurrence hearing the hue and cry and tried to save Uttam Barman. The witness was declared hostile by the prosecution and she was cross examined by the prosecution counsel. However, the evidence of a witness who has been declared hostile is admissible and it is open to the Court to rely upon its dependable part, found to be acceptable and duly corroborated. The statement of fact made by P.W.6, as noted above, is corroborated by the eye witnesses, therefore, the dependable part of the evidence of P.W.6 is relevant and admissible in evidence. 17. After the incident of assault, all the injured witnesses and the deceased were examined by the doctor and the post mortem examination of deceased was carried out by P.W.7, Dr. S. N. Datta. 17. After the incident of assault, all the injured witnesses and the deceased were examined by the doctor and the post mortem examination of deceased was carried out by P.W.7, Dr. S. N. Datta. P.W.7 in his deposition stated that on 05.10.2000 he conducted autopsy over the dead body of deceased, Aswini Barman, in the morgue of Belonia Hospital and found the external injuries over the dead body, which are as follows: i. A sharp cut punch wound over the forehead. ii. A swelling wound over the occipital region measuring 2" in length and 1-2/1" in width and on dissection of the dead body he found as follows: (i) Though he found cut injury on the skin of forehead but there was no internal injury. (ii) Membrane of occipital region was found pale and congested and all other organs were found by him intact. P.W.7 confirmed that the deceased was admitted in Belonia Hospital on 04.10.2000 at 3 p.m. with the history of assault injury and at the time of admission in the hospital the deceased was semi conscious and vomiting was present. On Examination of Aswini, P.W.7 found fresh sharp cut wound (injury) over forehead and swelling over the occipital region. The time of injury was about 1 hour before admission in the hospital. P.W.7 also deposed to confirm that on the same day on 04.10.2000 at about 4-35 p.m. Aswini died in the hospital and the cause of death in his opinion was due to ante mortem head injury on the occipital region, due to assault by any hard blunt weapon. P.W.7 also verified that the injury No.1 found on the forehead of the deceased could be caused by an axe. 18. On 04.10.2000 P.W.7 also examined Uttam Barman (P.W.4), Smti. Laxmi Barman (P.W.2) and Smti. Kajal Barman (P.W.3) at about 3 p.m. in Belonia Sub-Divisional Hospital, since all of them came to the Hospital with the history of assault and injury. During examination of injured Uttam Barman he found the following injuries on his person: i. One fresh cut wound over the middle of head measuring 1-2/1" X 1" with lacerated margin and the said injury was grievous in nature. ii. Multiple bruise injured the extremity and other parts of the body caused by hard blunt weapon and the said injuries were simple in nature. ii. Multiple bruise injured the extremity and other parts of the body caused by hard blunt weapon and the said injuries were simple in nature. All the injuries were fresh and caused about 1 hour before from the time of admission to the hospital. The injured Uttam Barman was admitted in the said hospital. He also stated that the injury No.1 can be caused by sharp cut weapon like axe. Injured Uttam Barman was referred to G. B. Hospital of Agartala on the date of his admission for better treatment. On his identification the injury report along with his signature is marked Exbt.7. P.W.7 discharged injured Kajal Barman (P.W.3), after giving treatment on 04.10.2000. On examination of Kajal Barman (P.W.3) he found multiple bruises and fresh swelling over the extremity, back and chest, which were simple in nature and caused by any hard blunt weapon. On examination of Smti. Laxmi Barman (P.W.2), P.W.7 found as follows: (i) Bruise and swelling over wrist, elbow and other parts of her body. (ii) Fresh bleeding from index finger to little finger except the thumb of her right hand due to sharp cut injuries over the dorsal aspect measuring 2/1" X 4/1". The injuries No.1 were caused by blunt weapon and the injury No.2 was caused by sharp cut weapon. The time of injury was approx. 1 hour before his examination and both the injuries were simple in nature and on his identification the injury report along with his signature is marked Exbt.9. 19. The learned trial court placed no reliance on the testimony of the defence witnesses. According to defence witnesses No.1, 2 and 3, Uttam Barman (P.W.4) sustained severe bleeding injuries by falling from a tree and Aswini Barman, sustained injury on his way to see the injured on the date of occurrence, do not at all inspire confidence on the face of overwhelming evidence on record reflecting complicity of the accused-appellants, in committing the offence alleged against them and the attending medical evidence. In fact, no nexus could be made out by the defence witnesses, to link up the incident with alleged personal accident of the deceased and his family members. The story put forward by the defence instead of creating any doubt, exposes a run of the mill and sallow defence ploy. In fact, no nexus could be made out by the defence witnesses, to link up the incident with alleged personal accident of the deceased and his family members. The story put forward by the defence instead of creating any doubt, exposes a run of the mill and sallow defence ploy. On careful analysis of the evidence of the prosecution witnesses, it appears that P.Ws 2, 3, 4 and 5 are the eyewitnesses to the occurrence and out of them P.Ws 2, 3 and 4 were also injured in the said occurrence. 20. From conjoint reading of the evidence of the eyewitnesses to the occurrence, it appears that on the date of occurrence, injured P.W.4 was going from his house with an axe in his hand. On his way he was waylaid and restrained on the western side of his house by the accused appellants Ratan Sukladas, Jatan Sukladas, who were armed with lathis. Being restrained and attacked by the accused persons P.W.4, tried to flee, to save his life and raised alarm. The accused persons chased him, caught him and assaulted him severely with lathi. On hearing the hue and cry and alarm raised by him P.W.4, his father Aswini Barman(deceased), mother Laxmi Barman P.W.2 and his wife P.W.3 rushed to the place of occurrence and requested the accused persons to save him, the accused appellants instead of heeding to their request assaulted all of them with lathi. The accused appellants also snatched the axe belonging to Uttam Barman (PW4) and assaulted him on his head with the same axe and also assaulted the father of Uttam Barman by means of the said axe. The modus operandi of the accused appellant clearly reflects that all of them came to the place of occurrence, in a body with common intention to assault and injure Uttam, but when the deceased and the family members came to rescue Uttam, the accused/appellants immediately swung into action to subvert the victims and thus did not spare anybody. 21. The expression common intention implies a prearranged plan, a prior intention to commit a distinctly chalked out plan is not necessary to be proved. A common intention may be inferred from the conduct of the accused/appellants. 21. The expression common intention implies a prearranged plan, a prior intention to commit a distinctly chalked out plan is not necessary to be proved. A common intention may be inferred from the conduct of the accused/appellants. Though learned Counsel for the accused appellants pointed out that there are contradictions in the deposition of P.W.s 4 & 5, regarding the name of the accused appellants, who snatched away the 'axe' (Exbt.2) from Uttam Barman, however, from the deposition of P.W.s 2, 3, 4 & 5, it is clear that the accused appellants apart from assaulting them by lathi also snatched away the axe from Uttam Barman and assaulted him and his father on their heads by the said axe. The occurrence took place on broad day light in presence of injured witnesses. 22. The contention of the learned Counsel for the appellant that non identification of the assailant of the deceased by the axe on the head cannot be fatal to the prosecution case, warranting acquittal of the accused-appellants from the charges. The circumstances leading to the occurrence corroborated by the eye witnesses, pin pointedly attributes the accused-appellants, for the injuries upon the deceased and the injured P.W.4, who had sustained grievous injury on his person became senseless. The eye witnesses and the injured in the occurrence did not give any scope to exclude the accused appellants from the complicity of the crime alleged. On careful scrutiny of the deposition of the P.W.7, though admittedly the deceased was an old man, it does not transpire that the deceased died of any illness, which is contrary to the defence stand taken in the case by the appellants. 23. Mr. S. Talapatra, learned Sr. Counsel representing the accused/appellants contended that the conviction was recorded by the trial Court without making any purposeful analysis to find out the truth of the story. Learned counsel further pointed out that the witnesses being close relatives of the deceased, the learned Court below ought to have exercised required caution in marshalling all the evidence of the witnesses. Counsel representing the accused/appellants contended that the conviction was recorded by the trial Court without making any purposeful analysis to find out the truth of the story. Learned counsel further pointed out that the witnesses being close relatives of the deceased, the learned Court below ought to have exercised required caution in marshalling all the evidence of the witnesses. Learned counsel for the accused appellants has further pointed out that the prosecution side failed to establish any motive, for commission of the crime alleged against the accused appellants and there is no ingredient of truth on record to establish the common intention, for assaulting the deceased by the accused persons and if anything had happened it happened on the spur of the moment, as a result of which, the deceased received fatal injuries. 24. Learned counsel for the accused appellants by referring to the decision of the Hon'ble Supreme Court in Dani Singh v. State reported in AIR 2004 SC 450, submitted that in order to constitute common intention it is necessary that intention should be known to each of the rest participating in the crime. Relevant extract of the observation can be gainfully depicted as under- 6. We have gone through the record and have heard learned Counsel for both the parties. The High Court has itself arrived at the conclusion that all the accused appellants had committed robbery, but so far as the inflicting the injuries on Naresh Chand is concerned, it was not possible to say as to which of the appellants inflicted the stab blows. It is proved from the statement of Dr. A.K. Ghosh who conducted the autopsy of the dead body of Naresh Chand that there was one incised wound over the upper back part of left arm and another transverse incised punctured wound over the back of upper part of left thigh. In the opinion of Dr. A.K. Ghosh the death of Naresh was due to haemorrhage and shock as a result of the stab injuries on the left arm caused by a sharp edged penetrating weapon. In his opinion injury No. 1 was sufficient to cause death in the ordinary course of nature. 7. In the opinion of Dr. A.K. Ghosh the death of Naresh was due to haemorrhage and shock as a result of the stab injuries on the left arm caused by a sharp edged penetrating weapon. In his opinion injury No. 1 was sufficient to cause death in the ordinary course of nature. 7. The High Court rightly held that as there were only four persons the conviction under Section 149 IPC cannot be maintained but again while considering the question of common intention it fell into error in holding that the offenders had the common object of committing murder of Naresh Chand. 8. Apart from the two injuries inflicted on non vital parts of the body, it is clearly born out from the record that after receiving the stab injuries Naresh Chand had travelled a distance of approximately 116 paces from the place of stabbing. The High Court after considering the statements of P.W. 11 Shanti Lal and P.W. 12 Rajender Singh-eye witnesses of the incident observed "we cannot overlook the fact that none of these witnesses suspected that the injuries suffered by Naresh could be fatal especially when he was found in a position to walk". From a perusal of the above circumstances coupled with the nature of injuries we are clearly of the view that the High Court was wrong in holding that the accused appellants had a common intention to commit murder of Naresh Chand so as to bring their case within the purview of Section 34 IPC. Under these circumstances the conviction of the appellants cannot be maintained under Section 302 read with Section 34 IPC. 25. According to learned Counsel for the appellants, it may be difficult to show the common group of persons, but however difficult may be the task, the prosecution must lead evidence of fact and circumstances of conduct of accused from which their common intention can safely be gathered. According to learned Counsel such examination and scrutiny was not carried out by the learned trial Court. 26. Evidence of P.W.s 2, 3, 4 & 5 made it clear that the accused appellants wrongfully restrained the victim Uttam Barman, PW4 and assaulted him and other injured witness at the place of occurrence. According to learned Counsel such examination and scrutiny was not carried out by the learned trial Court. 26. Evidence of P.W.s 2, 3, 4 & 5 made it clear that the accused appellants wrongfully restrained the victim Uttam Barman, PW4 and assaulted him and other injured witness at the place of occurrence. The evidence of the above witnesses reaffirmed that the fatal blow was inflicted on the occipital region of the deceased by the accused appellants in furtherance of their common intention of all either by means of lathi or axe, which used as an weapon of assault in all likelihood would cause such bodily injury likely to cause death of the deceased. As such, the accused appellants committed the offence of culpable homicide in furtherance of their common intention. Common intention had developed among the accused-appellant is fortified by the evidence of the P.W.2, P.W.3 and P.W.4, who stated that the accused, who came armed with lathi, did not heed to the request made by the witnesses to save P.W.4 rather the accused appellant turned around to assault all of them severely. 27. In respect of the second and third charge framed under Section 341 and 323 of IPC against the accused persons, it is found that though Section 34 of IPC has not been specifically mentioned in the said charges framed under Section 341 and 323 of IPC, but it is found that necessary ingredients of Section 34 of IPC are indicated in the said charges framed against the accused persons and omission to mention Section 34 of IPC in the second and third charge has not prejudiced the accused persons in their defence. As such, I find that there is no legal impediment to find all the accused persons guilty under Section 341 read with Section 34 of IPC and under Section323 read with Section 34 of IPC 28. According to the learned Counsel for the appellants P.W.5, being a child witness was tutored by P.W.2, i.e. Laxmi Barman, since the FIR did not indicate presence of P.W.5 as eyewitness, but presence of P.W.5 was indicated for the first time in her statement under Section 161 Cr.P.C. Thus, no mentioning of the name of P.W.5 in the FIR, according to learned Counsel, rendered her presence at the relevant time in the place of occurrence doubtful. Learned counsel for the accused appellants further pointed out that P.W.2 deposed in the Court that she rushed to the place of occurrence after the P.W.5 raised alarm, which stands contrary to the statement in FIR and, as such, the presence of P.W.5 is not believable. 29. It is a settled principle of law that the first information report submitted in the police station about the commission of a crime usually sets the criminal law in motion. FIR enables the investigating authorities to obtain further information and investigate into the matter for bringing the guilty persons to the book. Non indication of the name of the witnesses in the FIR, cannot be treated to be fatal remiss. First information is not a compendium of the prosecution case. Therefore, non-indication of the name of the eyewitness is not fatal to the prosecution case. 30. Apart from that the learned Counsel for the appellants submitted that P.Ws. 2, 3, 4 and 5, upon whose testimony the prosecution relies, are all interested witnesses to secure conviction of the accused appellants. As a matter of fact, true and trustworthy evidence of a relative witness cannot be disbelieved only because of the reason that the deceased happened to be a close relation, more particularly, when there is no known animosity or hatred between the deceased and the witnesses. In fact, a close relation, who happened to be present at the place of occurrence, is, but a natural witness. When a man is assaulted and injured by a group of 4 persons with deadly weapons, who else would dare to come to save the screaming victim. Obviously either a close relation would surely volunteer, so or some brave souls from the public; all the rest would usually desist from exposing them to the threat. Therefore, a relative, who happened to be present at the place of occurrence to save the victim, cannot be branded as partisan and biased witness, in the facts and circumstances of the case. 31. Learned counsel for the accused appellants in his elaborate argument submitted that even if the statement of the prosecution witnesses are believed, it appears that the deceased was not the target of the assailants, and there was no intention of causing death of the deceased during the attack. 31. Learned counsel for the accused appellants in his elaborate argument submitted that even if the statement of the prosecution witnesses are believed, it appears that the deceased was not the target of the assailants, and there was no intention of causing death of the deceased during the attack. The deceased sustained fatal injuries while trying to save his son and the assault on the deceased was on the spur of moment, not pre-concerted, pre-meditated or having common intention, therefore, the charge under Section 304 Part-1 of IPC read with Section 34 of IPC can not be applied to convict the appellant. In that event, the prosecution has to discharge the liability to establish as to who had fatally assaulted the deceased. 32. Learned counsel for the accused/appellants further pointed out that P.Ws 4 and 5 made, diametrically destroying opposite statements regarding the use of axe by the accused appellants. According to P.W.4, it was accused-appellant, Jatan, who had snatched the axe from him and used the axe in assaulting him, but P.W.5 stated that it was accused-appellant Janardhan, who used the axe to hit P.W.4 as well as the deceased. 33. Mr. A. Ghosh, learned Addl. P.P. would submit that once common intension is established, who used what kind of weapon is immaterial. As soon as several persons attack in a body with various kinds of weapons, it may not be possible to pointedly attribute, individually, to the accused-appellants, every injury sustained by the injured and the deceased in the occurrence. Learned Additional P.P. further submitted that the evidence of eyewitnesses, namely, P.W.s 2, 3, 4 and 5 have convincingly proved by their testimony and established the offence alleged against the accused appellants beyond all reasonable doubt. 34. Learned counsel for the appellants referring to the cross examination of PW.2 submitted that assault on her (P.W.2) husband(deceased) stated by her is contrary to the medical evidence, which reflects one sharp cut punch over forehead and swelling over occipital region, which in the opinion of the doctor was an assault by blunt weapon. Learned counsel for the accused appellants submitted that the medical officer, no where clarified that any injury on the person of the deceased, except injury No.1, could be caused by an axe, which is contrary to the postmortem report. 35. Learned counsel for the accused appellants submitted that the medical officer, no where clarified that any injury on the person of the deceased, except injury No.1, could be caused by an axe, which is contrary to the postmortem report. 35. However, according to P.W.7, the doctor, injury No.1 of the deceased was a sharp cut punch over the forehead, which may be caused by an axe. Out of several injuries according to the doctor blunt weapon had the severest impact to cause death. The contradictions sought to be established by the learned defence counsel do not invite further analysis since the medical opinion of the doctor clearly reveals that there was no internal injury on the head of the deceased. 36. Though learned Counsel for the appellants pointed out a few minor variations in the statement of PWs 3, 4 and 5 with medical evidence, however, these variations are of no consequence, since the evidence of the witnesses are consistent and their credibility have not been shaken. 37. P.W.4 is a vital witness for the prosecution, as he is the victim and he was in the midst of the occurrences all throughout. Admittedly, the accused-appellant did not carry axe or any other dangerous weapon of assault with them to the place of occurrence, implies that the accused appellants did not have intention to cause death of any of the victims. However, it is also significant to point out that PW.4 stated that sharp cutting edge of the axe was also not used by accused appellant while assaulting him. 38. Apparently, PWs 4 and 5 were not consistent in identifying as to the accused-appellant, who had handled the axe to assault the injured and the deceased. PW.5 said it was accused-appellant Janardhan, who handled the axe to assault the injured and the deceased. PW.4 did not corroborate the statement of PW.5. P.W.2, P.W.3, who were present at the scene of occurrence did not specifically name the accused, who assaulted the deceased by the axe on the head. 39. What becomes known from the above discussion is that the evidence on record does not disclose that the deceased was assaulted with the intention of causing death. At the same time, the evidence on record reveal that the accused appellants had assaulted the deceased on the head, however the doctor did not notice any internal injury in the head injury. What becomes known from the above discussion is that the evidence on record does not disclose that the deceased was assaulted with the intention of causing death. At the same time, the evidence on record reveal that the accused appellants had assaulted the deceased on the head, however the doctor did not notice any internal injury in the head injury. What is, however, of paramount importance to note is that out of the injuries sustained, it is not, discernible from the evidence on record, due to confusion created by P.W.4 and P.W.5, as to which of the accused-appellants had caused the said fatal injury by axe on the head of the deceased, which apparently turned to be mortal. From the fact that deceased had sustained external injuries on head, P.W.4 sustained grievous injury on his person so also P.W.2 and P.W.3, who sustained simple injuries, clearly demonstrate that accused-appellants shared the common intention in causing injuries on the deceased and others present, and, in such a situation, the accused-appellants, instead of being held guilty of offence under section 304 part I IPC, they ought to have been held guilty of the offence under Section 326 read with Section 34, IPC. 40. However, in so far as the wrongful restraint of P.W.4 and assault on other injured is concerned, the evidence of the prosecution is clear and acceptable. Co-relating the said evidence with the evidence of P.W.7, the doctor, who examined the injured, in respect of injuries suffered by other injured, I am of the view that the accused-appellants have been rightly held liable for commission of the offence under Sections 323/341/34 IPC. 41. In the result and for the reasons discussed above, I hold that the prosecution could not substantiate and prove beyond all reasonable doubt that the accused-appellants were guilty of the offence under Section 304 part-I read with Section 34 IPC; but the evidence on record proves beyond reasonable doubt that the accused-appellants committed offence under Section 326 read with section 34 IPC. 42. I, therefore, hold the accused-appellants not guilty of the offence under Section 304 part-I read with Section 34 IPC and I acquit them accordingly of the offence of murder; but I hold them guilty of offence under Section 326 read with Section 34 IPC and convict them accordingly. However, I see no reason to interfere with their conviction under Sections 323/341/34 IPC. 43. However, I see no reason to interfere with their conviction under Sections 323/341/34 IPC. 43. In view of the foregoing discussions, I modify the conviction of the accused-appellants under Sections 304 part-I read with Section 34 IPC to Section 326 IPC. I also deem it appropriate to impose a sentence of rigorous imprisonment for 3(three) years on each of the accused-appellants and also to pay a fine of Rs.5000/-(Rupees five thousand) each, in default to undergo further rigorous imprisonment for 3 months. The conviction of the accused-appellants under Sections323/341/34 IPC, as well as the sentence imposed under the aforesaid Sections of the Indian Penal Code is maintained. However, the sentences shall run concurrently. 44. The accused-appellants, who are on bail, shall surrender before the trial court within 15 days from today, to serve out the remaining sentence. Send down the case record together with a copy of this judgment.