JUDGMENT By Court.-This criminal appeal has been directed against the judgment of conviction dated 5.9.2002 and the order of sentence dated 7.9.2002 passed by learned Sessions Judge, Deoghar in Sessions Trial No. 181 of 1999 corresponding to Madhupur P.S. Case No. 85 of 1999, whereby the learned Sessions Judge held the appellants guilty for the offences punishable under Sections 302/324 I.P.C. and accordingly sentenced them to undergo R.I. for life and to pay fine of Rs. 5,000/- each under Section 302 and in default of payment of fine further R.I. for one year, and R.I. for one year under Section 324 I.P.C. 2. The prosecution case as it appears from the written report lodged by Phago Ram Hansda in brief is that on 26.5.1999 in the morning the father of the informant had gone to restrain the accused persons, namely, Hira Marandi, Bal Govind Marandi, Gokul Marandi, Shobha Marandi and Karu Hansda from ploughing the field which was under dispute. The informant also followed his father. It is alleged that the accused persons who were armed with Bhujali, Lathi, etc. made an attempt and caused injury to Jamuna Hansda. It is specifically alleged that Hira Marandi and Balgovind Marandi who were armed with Bhujali caused injury to the deceased on his neck and head whereas the remaining accused who were armed with Lathi had assaulted him. When the informant tried to rescue his father he was also chased and assaulted by accused persons and sustained injury. He has also disclosed that after having injury he became unconscious for a while and after he became conscious he reached to the Police Station and lodged this written report. On the basis of the written report, Madhupur P.S. Case No. 85 of 1999 dated 26.5.1999 under Sections 307, 326, 324, 323 and 34 I.P.C. against named accused was registered. Since after institution of the case Jamuna Hansda scummed (sic-succumbed?) to the injuries, Section 302 I.P.C. vide order dated 27.5.1999 was added. 3. The investigation proceeded and at the conclusion charge-sheet against all the 5 accused under Sections 323, 324, 326, 307, 302 and 34 I.P.C. was filed. After commitment the charges under Sections 323, 324, 326, 307 and 302 I.P.C. against all the five named accused including the appellants were framed. Since they had pleaded not guilty, they were put on trial. 4. After commitment the charges under Sections 323, 324, 326, 307 and 302 I.P.C. against all the five named accused including the appellants were framed. Since they had pleaded not guilty, they were put on trial. 4. The prosecution in order to substantiate the charges examined altogether 13 witnesses out of whom Phago Ram Hansda (the informant), Basoni Devi (wife of deceased), Dewanti Devi (wife of informant), have been examined as P.W. 1, P.W. 2 and P.W. 3 respectively. Dukhan Marandi (P.W. 4) and Rawan Marandi (P.W. 5) have also alleged to had witnessed the occurrence. Anita Devi (P.W. 6), Lakhindra Marandi ((P.W. 7), Jitan Hansda (P.W. 8), Melody (P.W. 9), Bhola Turi (P.W. 10) have not supported the prosecution case and they have been declared hostile. Yogendra Narayan Singh (P. W. 11) happens to be the Doctor who had conducted autopsy on the dead body of Jamuna Hansda whereas Dr. Bishwanath Das (P.W. 12) had treated the informant and proved the injury report. Ran Bijay Singh is the investigation officer who was examined as P.W. 13. Phago Ram Hansda, P.W. 1 (Informant), Basoni Devi (P.W. 2) and Dewanti Devi (P.W. 3) have fully supported the prosecution case and they have stated that deceased Jamuna Hansda on the date of incident had gone to raise objection against ploughing of the disputed field, but the accused persons, who were armed with Bhujali and Lathi, caused assault to him on his neck, head and other part of the body. After receiving injuries Jamuna Hansda fell down and later scummed (sic-succumbed?) to the injuries. It is stated by these witnesses that Phago Ram Hansda, informant tried to save his father, but he was also chased and assaulted by the accused persons and sustained injury. Dukhan Marandi (P.W. 4), Rawan Marandi (P.W. 5) had also supported this fact that Hira Marandi and Balgovind Marandi had caused assault to the deceased by means of Bhujali as a result he sustained injuries and died. They have further supported this fact that the informant was also assaulted by the accused person when he intervened to save his father. Dr. They have further supported this fact that the informant was also assaulted by the accused person when he intervened to save his father. Dr. Yogendra Narayan Singh (P.W. 11) had found- (1) A sharp cut injury on the back of neck in size 5" x 2" neck deep up to trachea, (ii) Sharp-penetrating injuries on the left scapular region, Size 2" x 1/2" muscle deep with blood clots, (iii) Sharp cut injury on the side of left ear 1" x 1/2". (2) On dissection of skull brain matter was pale. (3) On dissection of chest lungs and heart were found pale. (4) On dissection of abdomen spleen, liver and kidneys were pale. The Doctor has proved the post mortem report as Ext.-2. Dr. Bishwanath Das (P.W. 12) had examined the informant at D.C. Hospital, Madhupur on 26.9.1992 at 10 A.M. and found the following injuries on his person- (i) Incised wound 4" X 1" bone deep, red in colour, on the left shoulder and upper part of the left arm. (ii) Incised wound 2" X 1/2" muscle deep, red in colour, over posterior portion of left wrist. (iii) Lacerated wound 2" X 1/2" muscle deep, semi lunar in shape, red in colour laterally over the lower portion of the left arm. (iv) Lacerated bleeding wound 2" X 1/4" bone deep, red in colour on left side of the skull 2" way from epimidline. (v) Lacerated wound 1" X 1/4" muscle deep, red in colour on the left side of face. Besides the above injuries, abrasion and tenderness on the other part of the body were also noticed by the Doctor. 5. The investigating officer (P.W. 13) has supported the investigation done by him, described the place of occurrence in Para-5 of his deposition and further the statement of hostile witnesses were referred to the I.O. to which he had accepted and said that those witnesses had given such statement before him. 6. Mr. B. Prasad, learned counsel, appearing for the appellants, has vehemently challenged the impugned judgments on the ground that the prosecution has not come with fair hand. The informant has named 5 accused persons in F.I.R., but the learned Sessions Judge disbelieved the presence of 3 accused persons and acquitted them from all the charges and it was also observed that they might have been falsely implicated due to land dispute. The informant has named 5 accused persons in F.I.R., but the learned Sessions Judge disbelieved the presence of 3 accused persons and acquitted them from all the charges and it was also observed that they might have been falsely implicated due to land dispute. The learned Counsel has given much stress on the point that the prosecution has failed to establish the place of occurrence and the time of incident. In course of arguments, he has drawn the attention of the Court that at the place of occurrence no blood stain was detected. According to the prosecution witnesses, the incident took place on the disputed land which was partly ploughed by the appellants and others accused, but the dead body was located on the land belonging to Shobha Devi. The prosecution witnesses have not disclosed as to how the dead body of Jamuna Hansda was lying on the land belonging to the Shobha. He has further pointed out that the stomach of the deceased was having semi digested food with alcoholic smell, the bladder was empty and the fickle matter was less. This finding of the Doctor indicates that no occurrence in the morning had taken place, rather the deceased had sustained injuries during night after having meal by somebody else, but due to land dispute these appellants have been roped in this case. It is further submitted that PWs. 2 and 3 in their depositions have admitted that the deceased was removed to Hospital after having injury, but somewhere on the way he died. This fact does not find support from the evidence of other witnesses who have said that the dead body was lying in the field of Shobha Devi and he died at the spot. It is submitted that according to the Doctor, injury caused on the neck was fatal and that was the reason of death and therefore the injuries caused by Balgovind cannot be considered as fatal blow and he should not have been held guilty for the offence punishable under Section 302 I.P.C. No charge under Section 34 I.P.C. has been framed against these appellants and other accused. 7. On the other hand, the learned counsel for the State has vehemently opposed the arguments advanced by the learned counsel appearing for the appellants and supported the impugned judgments. 7. On the other hand, the learned counsel for the State has vehemently opposed the arguments advanced by the learned counsel appearing for the appellants and supported the impugned judgments. It is submitted that the informant is an injured witnesses and he had sustained injury in the same incident and there is no reason to disbelieve him. Only because some of the accused named in the F.I.R. have been acquitted, the appellants could not get benefit of the same. So far charge under Section 34 I.P.C. is concerned, even without framing of the specific charge with the aid of Section 34 I.P.C., if the evidence on record and the overt act committed by the accused indicate that they had shared common intention, conviction with the help of Section 34 I.P.C. can be passed. 8. We have carefully scrutinized the evidence on record and perused the judgment. We do not find substance in the argument advanced by the appellants that the time of incident and the place of occurrence have not been proved by the prosecution. The postmortem was done on 27.5.1999 at 11 A.M. i.e. on the next date of the incident and according to opinion of the Doctor, time elapsed since death was about 36 hours. This indicates that the occurrence had taken place during morning hours on the previous day. So far the injuries caused by these two appellants are concerned, the evidence of P.W. 1 to P.W. 5 indicate that they were armed with Bhujali and they inflicted blows on the neck and upper part of the body of the deceased. The Doctor P.W. 12 had examined the informant who was having number of incised wound and cut injuries on his person and the place inflicted were his shoulder, fingers and near the ear. 9. Now coming to the place of occurrence, the prosecution witnesses had fairly stated that the land in dispute was being forcibly ploughed by the appellants and their associates and they were armed with deadly weapon like Bhujali. The evidence of P.W. 1 to P.W. 5 and P.W. 13 points out that part of the field was ploughed and after that the incident took place. The informant who is an injured witness has stated that when he intervened to rescue his father Jamuna Hansda (deceased), he was chased by the appellants and assaulted by them by means of Bhujali. The informant who is an injured witness has stated that when he intervened to rescue his father Jamuna Hansda (deceased), he was chased by the appellants and assaulted by them by means of Bhujali. It is not that the place of occurrence where the alleged incident took place was having smooth/hard/pucca surface on which blood stain could easily be detected, rather it was a field which was partly ploughed and thus it is clear that the land in question was agricultural land having soft soil. Furthermore in this case where eye witnesses are available, non-seizure of blood stain soil from the place of occurrence is not very much important as the evidence of those eye witnesses is consistent, trustworthy and reliable. It is considered that the evidence of P.W. 1 to P. W. 5 is consistent on the point that the assault was caused to the deceased and informant at the place which was partly ploughed by the accused persons. Therefore, we do not agree with the contention that only because blood stain soil was not seized from the place of occurrence, the prosecution has failed to establish the place of occurrence. 10. It is settled principle of law that while scrutinizing the evidence, story of grain and chaff should be adopted. Only because three of the accused named in the F.I.R. were acquitted, the evidence which is consistent against these two appellants cannot be disbelieved. Since the deceased did not have injuries caused by hard and blunt substance, 3 accused who were allegedly armed with Lathi had been acquitted, but so far these two appellants are concerned the consistent evidence on record is that they were armed with Bhujali and they had used the weapon for causing injuries to the deceased and the informant. Now so far as the application and aid of Section 34 I.P.C. is concerned, the Investigating Officer had submitted charge-sheet for the specific offences committed by the appellant and other accused read with Section 34 I.P.C., but inadvertently charge under Section 34 I.P.C. was not framed. Now we have to consider that without being charge framed with the aid of Section 34 I.P.C. whether the conviction could be passed? Now we have to consider that without being charge framed with the aid of Section 34 I.P.C. whether the conviction could be passed? We are of the view that the role played by the accused persons, the weapon used by them, the part of body inflicted or targeted for causing injury are relevant to be considered whether they had shared common intention to commit the offence or not. In the instant case, both the appellants who were armed with Bhujali had actively used the weapon and caused injuries to the deceased on his vital part of the body. Not only that the informant was also chased and assaulted and sustained number of cut injuries and incised wounds. 11. In view of the discussions made above, we do not find merit in this appeal and the impugned judgment need no interference. Accordingly, the judgment of convicting and sentence passed by the learned Sessions Judge, Deoghar in Sessions Trial No. 181 of 1999 stands upheld.