JUDGEMENT AKHILESH CHANDRA, J. 1. This appeal has been preferred against order dated 12.05.1989 passed by learned Sessions Judge, Begusarai, in Sessions Trial No. 171 of 1984 arising out of Bhagwanpur P.S. Case No. 72 of 1982. Wherein appellant no.1 has been held guilty for the offence under Section 302 of the Indian Penal Code, whereas remaining three have been held guilty for the offence under Section 302/34 of the Indian Penal Code and all the four appellants have been awarded sentence to undergo rigorous imprisonment for life giving rise to present appeal. 2. The prosecution case is based on Ext.5. The fardbeyan of Basudeo Mahto (P.W.4) recorded by S.N. Jha, Investigating Officer (P.W.8) at 9.45 P.M. on 12.09.1982 at Manepur Gosarabaha (Place of occurrence) is that the deceased Doman Mahto brother of the informant had gone to Bhagwanpur Block at about 10 A.M. through bicycle and subsequently the informant also left the village at about 3 P.M. for village Manepur to meet his niece, during their return to home at about 7 P.M. both the brothers met each other at Manepur Chowk, for a while, they had a brief talk with each other and the deceased proceeded for the village on his bicycle instructing the informant to follow and when the informant reached opposite the house of Ganesh Rai (not examined) heard "Baap Re" immediately he along with Ramdehi Mahto (P.W.6) rushed towards the place and found the appellants overpowered his brother Doman Mahto (deceased) and when the duo arrived nearer, appellant no.1 Ram Jiwan Choudhary shot at Doman Mahto and all fled away towards west, on alarm Ramnihora Rai (not examined), Rameshwar Choudhary (RW.5) and several others arrived who may say about the occurrence, if seen or heard. Doman Mahto lost his life soon. The reason behind the occurrence as stated in fardbeyan is political rivalry between one Laxman Singh owner of Aagapur Kothi with whom deceased an ex-Mukhiya had a contest for the post of Mukhiya, but lost, and appellant no.1 Ram Jiwan Choudhary is manager and muscle man of Laxman Singh (Mukhiya) and earlier also appellants had once attacked upon the deceased about which he had narrated the informant. The occurrence took place at about 7 P.M. Fardbeyan was attested by one Subrat Choudhary (not examined) whose signature has been marked as Ext.1. The occurrence took place at about 7 P.M. Fardbeyan was attested by one Subrat Choudhary (not examined) whose signature has been marked as Ext.1. The police instituted the case and after investigation submitted charge sheet, after taking cognizance, case was committed and trial commenced, after framing and explaining the charge against appellant no.1 for the offence under section 302 of the Indian Penal Code and rest for the offence under Section 302 read with Section 34 of the Indian Penal Code, which on consideration of materials on record found proved by the trial court who accordingly convicted and sentenced the appellants in the manner aforementioned giving rise to instant appeal. 3. The defence of appellants accused person is that of false implication due to previous enmity, taking undue advantage of the unnatural death of the deceased, in a otherwise manner by his unknown rivals, having grudge against the deceased, owing to his illicit connections with one trained Nurse Arti devi. It is also contended by learned counsel for the appellant that there is none to see the occurrence, witnesses examined are chance and interested witnesses whose presence at the place of occurrence is not established. Even their subsequent conduct also negatived their presence. Further the Investigating Officer has arrived at the alleged place of occurrence on getting information about the murderous attempt upon the deceased. After recording Sanha Entry no. 174/1982 which is not on record and this brings Ext.5, the very fardbeyan and subsequent investigation etc. on that basis a nullity and barred under law. It is also argued that the appellants have been deprived off opportunity to explain the circumstances relied upon by the trial court against them during their examination under section 313 of the Code of Criminal Procedure. On this score alone, their conviction and sentence is not sustainable as under law, such circumstances are to be ignored but cannot be taken for consideration. 4. The prosecution, besides producing the documentary evidence vide exhibits: Ext.1. Signature on Fardbeyan of Basudeo Mahton (informant). Ext.1/1. Signature of Rameshwar Choudhary on Seizure list. Ext.1/2. Signature of Rameshwar Choudhary on death report. Ext.2. Endorsement and signature of Ramdehi Mahton on sizure list. Ext.3. Zimanama Ext.4. Post mortem report. Ext.5. Fardbayan Ext.6. Formal F.I.R. Ext.7. Inquest Report. Ext.8. Seizure list. The prosecution, besides producing the documentary evidence vide exhibits: Ext.1. Signature on Fardbeyan of Basudeo Mahton (informant). Ext.1/1. Signature of Rameshwar Choudhary on Seizure list. Ext.1/2. Signature of Rameshwar Choudhary on death report. Ext.2. Endorsement and signature of Ramdehi Mahton on sizure list. Ext.3. Zimanama Ext.4. Post mortem report. Ext.5. Fardbayan Ext.6. Formal F.I.R. Ext.7. Inquest Report. Ext.8. Seizure list. has examined altogether 8 witnesses out of whom (P.W.1) Ram Jiwan Prasad Singh, (P.W.5) Rameshwar Choudhary have been declared hostile, since they have not supported the prosecution version. Though, P.W.5 has proved his signature (Ext.1/1) and (Ext.1/2) respectively on seizure list Ext.8 and inquest report Ext.7. The defence has produced one witness besides following documentary evidence. Ext.A. C.C. of final report Ext.B. C.C. of order sheets u/s 107 Cr.P.C. Ext.C. Formal F.I.R. of Bhagwanpur P.S. Case No. 9(ll)80. Ext.E. Destruction report on the back of requisition no. 6 Q 30.03.89. Ext. F.C.C. of F.I.R. of Bhagwanpur P.S. Case No. 4(8)79. Ext.G. C.C. of report of Mukhiya dated 27.02.79 in case no. 343m/79. 5. Now on the basis of materials available on record and rival contentions, it is to be seen in this appeal whether the prosecution has been able to substantiate the charges against the appellants beyond any shadow of any reasonable doubt or finding of the court below needs interference? 6. Laxmi Paswan (P.W.2) has come to see that while he was returning after getting his wheat crushed in the flour mill at village Manepur, he heard sound of firing rushed towards the place of occurrence found the appellants standing there, where Doman Mahto had fallen and when he arrived near him found all the four appellants fleeing. Ram Jiwan Choudhary (P.W.1) having a pistol in his hand whereas rest had no weapon. Blood was oozing from the chest of Doman Mahto, prior to his arrival Basudeo Mahto and Ramdehi Mahto respectively (P.W.4) and (P.W.6) (the two eye-witnesses) have already arrived and after his arrival P.W. 7 and P.W.5 arrived, Doman Mahto succumbed to his injuries. In cross- examination, para 6, this witness had said that during alarm several persons arrived there and out of those arrived after his arrival he could identity P.Ws. 3, 4, 5 and 6. Contrary to his earlier statement in examination in-chief that P.Ws. 4 and 6 had arrived at the place of occurrence prior to his arrival. In cross- examination, para 6, this witness had said that during alarm several persons arrived there and out of those arrived after his arrival he could identity P.Ws. 3, 4, 5 and 6. Contrary to his earlier statement in examination in-chief that P.Ws. 4 and 6 had arrived at the place of occurrence prior to his arrival. Name of this witness does not figure as witness in fardbeyan (Ext.5) nor either of the witnesses examined had said about his presence at the relevant time. Though, as it is evident that Investigating Officer P.W.8 has recorded his statement wherein he had said that he could see the accused persons fleeing from the place of occurrence never said about their standing thereon (vide para 8 P.W.8). 7. Damodar Rai (P.W.3) is a witness not an eye-witness to the occurrence but said about the circumstances emerging before. He had said that at about 6.30 P.M. to 6.45 P.M. while he was going from Dera? to his house could see all the appellants standing having a talk that "chalo ab nahi aaya" and when he arrived near the house of Ganesh Rai (not examined) found Doman Mahto (deceased) going on bicycle in north direction towards village and when he proceeded further found Basudeo Mahto (P.W.4) and Ramdehi Mahto (P.W.6) subsequently he heard sound of gun firing, on arrival to the place of occurrence, found Doman Mahto lying dead due to fire arm injury sustained by him on his chest and learnt through P.Ws. 4 and 6 that he has been killed by the appellants. About the presence of the appellants, prior to the occurrence there is variation from the earlier the statement of this witness towards which his attention was drawn in para 4 of the cross-examination wherein earlier he had said that Dilip Kumar (A 3) was standing in the field where there was none, P.W.8 Investigating Officer in para 8 asserts that this witness had said that Dilip Kumar (A 3) was standing in the field. This witness is also silent about the presence of Dilip Kumar at the place of occurrence when he arrived. This witness is also silent about the presence of Dilip Kumar at the place of occurrence when he arrived. On the basis of statement of this witness, it was argued that there is nothing in the statement of this witness showing involvement of the appellants in the entire episode, even if it is assumed that this witness could see the appellants earlier standing and uttering that "chalo ab nahi aaya" that does not mean that these utterances were relating to the deceased and only on the basis of such statement, it cannot be said that the appellants had any pre-consultation with each other as regard to killing of Doman Mahto. 8. Basudeo Mahto (P.W.4) has come to say that on 12.09.1982 at 6.45 P.M., his brother Doman Mahto had been killed who had gone earlier at about 10 A.M. by bicycle to Circle Office and the informant had gone at 3 P.M. to village Manepur to meet his niece, during return he could met his brother Doman Mahto near Manepur Chowk who accompanied the informant and Ramdehi Mahto (P.W.6) for a short distance, but, subsequently requested them to follow and proceeded on his bicycle, when the duo arrived near the house of Ganesh Rai heard the sound of "Baap Re Baap" coming from north side both rushed towards the Bandh and found all the appellants overpowered Doman Mahto and appellant Ram Jiwan Choudhary shot at him, soon thereafter all the appellants fled towards north west. Doman Mahto died instantly, he was ex- Mukhiya, but in previous contest with Laxman Babu lost the post and appellant Ram Jiwan Choudhary is manager of said Laxman Babu. He further said that at the place of occurrence P.Ws. 2 and 3 besides Nihora Rai (not examined) arrived out of whom Rameshwar Choudhary (P.W.5) has gone in collusion with accused persons. Police arrived, recorded his statement finding the same correct, put his signature marked Ext. 1 and he is specific in the last line of examination in-chief that prior to arrival of police, there had been some rainfall. During cross-examination, he has stated his ignorance about Arti Devi or any case filed by the deceased relating to her assault or cases under section 107 of the Code of Criminal Procedure with the appellants. 1 and he is specific in the last line of examination in-chief that prior to arrival of police, there had been some rainfall. During cross-examination, he has stated his ignorance about Arti Devi or any case filed by the deceased relating to her assault or cases under section 107 of the Code of Criminal Procedure with the appellants. He is specific that he met with the deceased at Manepur Chowk and he further followed him with Ramdehi Mahto (P.W.6) and immediately after 5-6 minutes he heard alarm, further said that after his arrival others arrived not before, he did not sent anyone to police station, the police arrived stayed for an hour recorded his statement besides statement of other witnesses. He has further denied the suggestion of false implication of the appellants due to previous enmity. In para 4 of cross-examination, this witness has further said about other political activities and involvement of the deceased. In para 7 he has said about the time of occurrence that "Andhera Ho Gaya Tha". It is argued by learned counsel for the appellants that this witness had no occasion to go to meet his niece rather just to bring himself as an eye-witness, he has come out with that case. He is chance and interested witness. Moreover. In the light of statement of P.W.2, this witness and P.W.6 both arrived after his arrival makes statement of this witness doubtful. 9. Ramdehi Mahto (P.W.6) has come to say that on the relevant day at about 4 P.M., P.W.4 had arrived at his home stayed for about two hours and left with him to return, this witness accompanied him up to Manepur Chowk, where Doman Mahto (deceased) also arrived subsequently on his bicycle after a brief conversation and proceeding for about 10 steps deceased proceeded further on his cycle requesting them to follow him. Both proceeded and when arrived near the house of Ganesh Rai this witness heard sound "Jaan Marlak - Jaan Marlak". The duo rushed towards north arrived at the road near Gosala Bandh found Doman Mahto on the earth at road side and all the five appellants on his body. Doman Mahto was asking "kahe jaan marte hai" and then at the dictates of appellant Prem Kumar, appellant Ram Jiwan Choudhary shot at him and all fled away. Due to fire arm injury on the chest, Doman Mahto died. Doman Mahto was asking "kahe jaan marte hai" and then at the dictates of appellant Prem Kumar, appellant Ram Jiwan Choudhary shot at him and all fled away. Due to fire arm injury on the chest, Doman Mahto died. There was blood on his belongings. Further before this witness empty cartridge besides some cash and envelop etc. of deceased was seized. He put his signature on the seizure list and also on the inquest report which was prepared there. He is specific that at the time of occurrence there was Jhalfal that means Godhuli. He further executed on jimmanama. In cross-examination this witness has stated about relationship, he happens to be brother of Ram Vilas Mahto son-in-law of Parmeshwar who is full brother of the deceased and the informant. He further said that there was no specific occasion for arrival of P.W.4 at his house and he was the only male member there. Though, he said that P.W.4 was working outside. In para 4 this witness has said that for a few minutes (5-6) stayed with him and P.W.4. Doman Mahto who had arrived just 1 ½ minute before but went ahead, just 4-5 minutes prior to 6.45 P.M. and only about 10 minutes after his leaving he heard alarm raised by Doman Mahto. In para 6, he said that he found Doman Mahto lying on earth and all the appellants were on his body right from his leg to chest, though, they were not using slaps and fists. Further he said that bicycle of Doman Mahto was one Atlas. He did not remember the number. He denies the suggestion of having a litigation under section 107 of the Code of Criminal Procedure with appellant no. 1.Though, he admits that such proceeding between the deceased and between appellant no.1. He also denied any allegation of wheat capturing by the appellant against him. 10. On the basis of statement of these two witnesses P.W.4 and P.W.6 (claiming themselves to be an eye-witnesses) meeting with the deceased soon before such occurrence arriving at the place of occurrence on alarm. It is argued that there is conflict between them as regard to actual timing of occurrence. 10. On the basis of statement of these two witnesses P.W.4 and P.W.6 (claiming themselves to be an eye-witnesses) meeting with the deceased soon before such occurrence arriving at the place of occurrence on alarm. It is argued that there is conflict between them as regard to actual timing of occurrence. As per P.W.4 he left village Manepur at about 7 P.M. whereas as per P.W.6 he left village with P.W.4 at about 6 P.M. But in fact, P.W.4 as stated earlier in his fardbeyan about 7 P.M., the time when occurrence took place while he was returning from village Manepur. It does not mean that he left the village itself at about 7 P.M. No doubt, P.W.6 speaks about leaving his house at about 6 A.M. but he is further specific that he along with P.W.4 was at Manepur Chowk till before 6.45 P.M. and met with the deceased Doman Mahto who left the Chowk short while before 6.45 P.M. and P.W.4 is further specific that the occurrence took place at 6.45 P.M. apart from other two witnesses P.Ws. 2 and 3 that apart in rural areas it is difficult to pinpoint the witnesses with the watch. The timing given by the witnesses is nothing but approximate margin of 15 minutes to ½ hour from both ends is always reasonably available for appreciation of other materials. 11. The doctor B.C. Choubey (P.W.7) hold autopsy of deceased Doman Mahto on 13.09.1983 at 10.10 A.M. i.e. roughly 15 hours after the occurrence of death of Doman Mahto and found the following ante mortem injury. Fire arm injury on the chest in the mid sternum at the level of fifth rib circular mark on the sternum blackish fragmentation on the skin ½" in diameter. Injury deep to chest cavity, skin inverted margin. On dissection, both chest cavity was full of blood, sternum had circular hole, upper chamber of the heart punctured, right lung is penetrated by pellets. Five pellets were recovered and cork also recovered (handed over to the constable). In the opinion of the doctor, death was caused due to the injury no.1 leading to penetration of heart and lung. And opined the death was caused due to above injury within 18-24 hours his report was marked as Ext. 4. Five pellets were recovered and cork also recovered (handed over to the constable). In the opinion of the doctor, death was caused due to the injury no.1 leading to penetration of heart and lung. And opined the death was caused due to above injury within 18-24 hours his report was marked as Ext. 4. In cross-examination he admits that injured would have sustained the injury in sleeping, standing and sitting positing and further confines timing of death between 10 A.M. to 4 P.M. that means as per opinion of the doctor instead of occurrence taking place at about 6.45 P.M. As stated by the prosecution, the death might have caused roughly three hours before by 4 P.M. giving room to learned counsel for the appellants to submit that prosecution has failed to prove the time of the occurrence as alleged consequently everything goes away. 12. P.W.8 is the Investigating Officer, according to him, on the relevant date on getting an information about murderous attempt on Doman Mahto (deceased) he had recorded sanha entry no. 194 dated 12.09.1982 proceeded and arrived at Manepur recorded statement of informant Ext.5. On the basis whereof formal First Information Report (Ext.6) was instituted, inspected the dead body, prepared inquest report (Ext.7). He has further specific that due to rains, the earth was wet, he could not found blood there, though in a radius of 1-2 feet grass was crushed, he seized the belongings of the deceased including blood stained cloths, currency notes etc. prepared Ext.8 and subsequently submitted the charge sheet. During cross-examination, his attention was drawn towards some earlier cases relating with the deceased, instituted at the police station but since he was not attached with the police station at the relevant time, expressed his ignorance. During inspection of place of occurrence in para 3 he found one bicycle standing 6 yards north of the dead body, on the basis whereof it was submitted that the cycle has been planted just to implicate the appellants in the false case. 13. So far timing of occurrence and death of deceased is concerned, the prosecution witnesses are consistent that it was around 6.45 P.M. Of course, in the medical evidence, it is confined to be held by 4 P.M. i.e. roughly three hours before the time stated by the prosecution. 13. So far timing of occurrence and death of deceased is concerned, the prosecution witnesses are consistent that it was around 6.45 P.M. Of course, in the medical evidence, it is confined to be held by 4 P.M. i.e. roughly three hours before the time stated by the prosecution. But, it is to be noticed that medical evidence is also nothing but an opinion and Modis 23rd Edition of its Medical Jurisprudence and Toxicology at page 432 and 433 is specific that "In general, rigor mortis sets in one to two hours after death, is well developed from head to foot in about twelve hours. There is also some atmospheric effect upon rigor mortis commences slowly, but lasts for a long time in dry, cold air. On other hand, its commencement is rapid, and duration short, in warm, moist air." 14. The doctor in his post mortem examination report clearly mentioned that at the time of post mortem examination, Rigor Mortis was present over all the limbs. No doubt, these circumstances were not put before the doctor in his examination/ cross-examination, but at the same time, for considering the time of death and some conflict between occular and medical evidence, this aspect cannot be ignored and only on basis of opinion of the doctor which also has some margin, consistent occular evidence as regard to time of death of deceased Doman Mahto cannot be discarded. The other argument about the transplantation of a bicycle roughly 6 feet away of the dead body in absence of any specific evidence as to its being in standing position without aid of either of the witnesses coming forward is concerned, also appears explained by the medical evidence itself. In post mortem examination report (Ext.4), the doctor has found urinary bladder of deceased empty and this is a circumstance which without any if and but suggests that soon before death the deceased must have urinated. The only possibility on the basis of the above evidence that after leaving P.W.4 and P.W.6 at Manepur Chowk, the deceased after standing his bicycle near road side was meeting his natural call of urination. At this stage, he was overpowered, raised alarm, the witnesses arrived, meanwhile he fell down and shot at to die. 15. Much argument was advanced by learned counsel for the appellants that the witnesses examined on behalf of the prosecution are chance and interested witnesses. At this stage, he was overpowered, raised alarm, the witnesses arrived, meanwhile he fell down and shot at to die. 15. Much argument was advanced by learned counsel for the appellants that the witnesses examined on behalf of the prosecution are chance and interested witnesses. No independent witness had been examined to support the prosecution version. Learned counsel placed reliance on the several decisions of the Apex Court including decision in a case Harjinder Singh alias Bhoia Vs. State of Punjab reported in 2004(11) SCC 253 , wherein reliance has been placed in a case Satbir Vs. Surat Singh reported in 1997(4) SCC 192 . But on careful examination of the decision of the Apex Court in aforesaid two cases besides others, it is evident that as per principle of law enunciated, evidence of chance or related witnesses is not to be discarded, on this ground alone rather their testimony is to be tested with extra care and caution. Similar view has been taken by the Apex Court in earlier decision of Bahal Singh Vs. State of Haryana reported in AIR 1976 SC 2032 , wherein also in para 10 it is held "If by coincidence or chance a person happens to be at the place of occurrence at the time it is taking place, he is called a chance witness. And if such a person happens to be a relative or friend of the victim or inimically disposed towards the accused then his being a chance witness is viewed with suspicion. Such a piece of evidence is not necessarily incredible or unbelievable but does require cautious and close scrutiny." 16. Almost similar view has been taken by the Apex Court in subsequent decision in a case Acharaparambath Pradeepan and another Vs. State of Kerala reported in 2006(13) SCC 643 and Jarnail Singh and others Vs. State of Punjab reported in 2009(9) SCC 719 . 17. This court is well in agreement with the view enunciated by the Apex Court on the above and evidence of the witnesses examined have been tested with due care and caution. 18. State of Kerala reported in 2006(13) SCC 643 and Jarnail Singh and others Vs. State of Punjab reported in 2009(9) SCC 719 . 17. This court is well in agreement with the view enunciated by the Apex Court on the above and evidence of the witnesses examined have been tested with due care and caution. 18. Damodar Rai (P.W.3) is a witness stating about the meeting of the appellants prior to occurrence, but, his evidence appears not sufficient but indicate that the persons assembled were talking about non- arrival of the deceased Doman Mahto at the relevant time and other two witnesses P.W.4 and P.W.6 namely, Basudeo Mahto and Ramdehi Mahto respectively are only on the point that the three appellants Prem Kumar Choudhary, Dilip Kumar Sinha and Suresh Choudhary had assembled, overpowered Doman Mahto and on arrival of the witnesses fled away. They did nothing more, of course, Ramdehi Mahto (P.W.6) had tried to improve the prosecution case as regard to Prem Kumar Choudhary a person at whose dictates appellant no.1 Ram Jiwan Choudhary shot at Doman Mahto, but, this witness P.W.6 arrived along with P.W.4. The informant who is silent about any utterances made by Prem Kumar Choudhary, so the evidence as regard to such command/direction which is also contrary to prosecution case, is not acceptable. Even, if P.W.3 had seen all the four appellants along with each other, soon before the occurrence while talking, it cannot be said that the three above named appellants had any intention to kill the deceased. This consistent statement of the witnesses that except Ram Jiwan Choudhary none had any weapon and P.W.3 had also not seen the weapon with appellant no.1 Ram Jiwan Choudhary. So, even if the three appellants were present at the seen participated in overpowering Doman Mahto, but by committing no other overt act, it cannot be said that the three appellants had been sharing their intention with appellant no.1 to kill the deceased who as per consistent evidence of P.Ws. 4 & 6 as discussed above, shot the deceased dead and fled away. None of the witnesses have ever said about any otherwise act committed by the three appellants nor there is any medical evidence indicating any injury caused to the deceased except single fire arm injury, author of which is none else than appellant no.1 Ram Jiwan Choudhary, as per prosecution case. 19. None of the witnesses have ever said about any otherwise act committed by the three appellants nor there is any medical evidence indicating any injury caused to the deceased except single fire arm injury, author of which is none else than appellant no.1 Ram Jiwan Choudhary, as per prosecution case. 19. A doubt was also raised about the capability of the witnesses to see the occurrence due to timing of sunset and about the visibility at the place of occurrence, on basis of diary of learned counsel for the appellants, it is submitted that on 12.09.1982 time of sunset was 6.11 P.M. but this also appears not against the prosecution case, it was the month of September and the place of occurrence and its surroundings while para 3, P.W.8, the investigating officer, is open area, so availability of reasonable visibility for about ½ hour to 45 minutes after sunset wherein the witness could be able to see the occurrence from the distance stated by them cannot be overlooked rather judicial notice of this fact can be taken. 20. Much argument was also advanced by learned counsel for the appellants on the manner in which such statement of the appellants accused persons were recorded under section 313 of the Code of Criminal Procedure. By placing reliance on the decision of the Apex Court in a case Sharad Birdhichand Sarda Vs. State of Maharashtra reported in AIR 1984 Sc 1622 , it is submitted that circumstances not put to accused cannot be used against him. The Apex Court in the aforesaid case in para 144 has held as such: " ............ circumstances which were not put to the appellant in his examination under Section 313 of the Criminal Procedure Code have to be completely excluded from consideration." 21. It is true that provisions contemplated under section 313 of the Code of Criminal Procedure are to be complied with in its true spirit, but, at the same time, effect of inadequate compliance has been considered by the Apex Court in a case Tilkeshwar Singh and Ors Vs. State of Bihar reported in AIR 1956 SC 238 , the bench constituting of three Honble Judges in para 8 has clearly held "........it is no doubt true that Section 342 contemplates an examination in court, and the practice of filing statements is to be deprecated. State of Bihar reported in AIR 1956 SC 238 , the bench constituting of three Honble Judges in para 8 has clearly held "........it is no doubt true that Section 342 contemplates an examination in court, and the practice of filing statements is to be deprecated. But that is not a ground for interference, unless prejudice is established. It is further held: "And it is nothing unusual for the accused to prefer filing statements instead of answering questions under Section 342, lest they by damaging statements. As no prejudice has been shown, this contention also must be rejected." 22. No doubt, in the instant case appellant nos. 2 to 4 were not put the circumstances under their statement under section 313 of the Code of Criminal Procedure (old 342 of the Code of Criminal Procedure) which have been relied by the court below holding them guilty, but, at the same time, it cannot be ignored that a detailed written statement had been fifed by the appellants on 05.05.1989 which is on record. The appellants have also adduced oral and documentary evidence to support their defence, no prejudice caused pleaded or even submitted during the course of argument in spite of repeated queries by this court. 23. Another three Judges Bench of the Apex Court in a case Shivaji Sahabrao bobade Vs. State of Maharashtra reported in 1973(2) SCC 793 , where in para 16 has held as such :- "It is trite law, nevertheless fundamental, that the prisoners attention should be drawn to every inculpatory material so as to enable him to explain it. This is the basic fairness of a criminal trial and failures in this area may gravely imperil the validity of the trial itself, if consequential miscarriage of justice has flowed. However, where such an omission has occurred it does not ipso facto vitiate the proceedings and prejudice occasioned by such defect must be established by the accused. In the event of evidentiary material not being put to the accused, the Court must ordinarily eschew such material from consideration. However, where such an omission has occurred it does not ipso facto vitiate the proceedings and prejudice occasioned by such defect must be established by the accused. In the event of evidentiary material not being put to the accused, the Court must ordinarily eschew such material from consideration. It is also open to the appellate Court to call upon the counsel for the accused to show what explanation the accused has as regards the circumstances established against him but not put to him and if the accused is unable to offer the appellate Court any plausible or reasonable explanation of such circumstances, the Court may assume that no acceptable answer exists and that even if the accused had been questioned at the proper time in the trial Court he would not have been able to furnish any good ground to get out of the circumstances on which the trial court had relied for its conviction. In such a case, the Court proceeds on the footing that though a grave irregularity has occurred as regards compliance with Section 342, Cr.P.C, the omission has not been shown to have caused prejudice to the accused. In the present case, however, the High Court, though not the trial Court has relied upon the presence of blood on the pants of the blood group of the deceased. We have not been shown what explanation the accused could have offered to this chemical finding particularly when we remember that his answer to the question regarding the human blood on the blade of the knife was I do not know. Counsel for the appellants could not make out any intelligent explanation and the blood testimony takes the crime closer to the accused. However, we are not inclined to rely over much on this evidentiary circumstance, although we should emphasise how this inadvertence of the trial Court had led to a relevant fact being argued as unavailable to the prosecution. Great care is expected of sessions Judges who try grave cases to collect every incriminating circumstance and put it to the accused even though at the end of a long trial the Judge may be a little fagged out." 24. The Apex Court in a case State of Punjab Vs. Great care is expected of sessions Judges who try grave cases to collect every incriminating circumstance and put it to the accused even though at the end of a long trial the Judge may be a little fagged out." 24. The Apex Court in a case State of Punjab Vs. Naib Din reported in AIR 2001 Sc 3955 , wherein para 12 it has been held as such: "12.That apart, respondent failed to show that there was any failure of justice on account of the omission to put a question concerning such formal evidence when he was examined under Section 313 of the Code. No objection was raised in the trial court on the ground of such omission. No ground was taken up in the appellate court on such ground. If any appellate court or revisional court comes across that the trial court had not put any question to an accused even if it is of a vital nature, such omission alone should not result in setting aside the conviction and sentence as an inevitable consequence. Effort should be made to undo or correct the lapse. If it is not possible to correct it by any means the court should then consider the impact of the lapse on the overall aspect of the case. After keeping that particulars item of evidence aside, if the remaining evidence is sufficient to bring home the guilt of the accused, the lapse does not matter much, and can be sidelined justifiably. But if the lapse is so vital as would affect the entire case, the appellate or revisional court can endeavour to see whether it could be rectified." 25. In another case Basavaraj R. Patil and Ors. Vs. State of Karnataka reported in 2008(8) SCC 740, by placing reliance upon earlier decisions, the Apex Court has also accepted some relaxation, taking into consideration extreme exigency in dealing with provisions as contemplated under section 313 of the Code of Criminal Procedure. No doubt, in this case, main consideration was whether either of the accused may be permitted to be examined through his counsel and reply was affirmative, of course, if extreme exigency arose. 26. This court also in a case State of Bihar Vs. Kare Singh reportedin 2002(4) PLJR 103, Where in para 24 it has been held as such: "24. No doubt, in this case, main consideration was whether either of the accused may be permitted to be examined through his counsel and reply was affirmative, of course, if extreme exigency arose. 26. This court also in a case State of Bihar Vs. Kare Singh reportedin 2002(4) PLJR 103, Where in para 24 it has been held as such: "24. Section 313 Cr.P.C. may be quoted so far as relevant as follows:- "(1) In every inquiry or trial, for the purpose of enabling the accused personally to explain any circumstances appearing in the evidence against him, the Court - (a)......... (b) shall, after the witnesses for the prosecution have been examined and before he is called on for his defence, question him generally on the case." The purpose of Section 313, it would appear, is to enable the accused to explain the circumstances appearing in the evidence against him. For achieving that purpose, after the prosecution witnesses have been examined, the Court is required to put questions generally about the case. Counsel for the State submitted that the word generally indicates that the accused has to be asked general questions. In my opinion, the word generally in the context means that the questions should relate to the whole case generally and should not be limited to any particular part or parts of the case. The question is what would be the effect of omisaion to put question(s) regarding a particular circumstance or circumstances. It is well settled that omission to put any question with respect to a particular circumstance by itself does not vitiate the trial. Failure to afford opportunity to the accused to explain any incriminating circumstance may provide him a ground but he has to show that he has suffered prejudice by such omission. Onus to show prejudice is on him. Where any circumstance appears in the evidence, it must be put to him in that shape of question so that he may explain the circumstances. But where the particular circumstance is part of the prosecution case of which he was aware, the omission to point the circumstance at the stage of his examination under Section 313 Cr. P.C. may not be said to be cause any prejudice to him. The object of the Section is to afford the accused an opportunity to expfain the circumstances which appear against him in course of trial. P.C. may not be said to be cause any prejudice to him. The object of the Section is to afford the accused an opportunity to expfain the circumstances which appear against him in course of trial. For example, where any confession is sought to be used against the accused or some incriminating recovery has been made he must be asked to explain the same, but where the accused is fully aware of the substance of accusation from the very beginning and has faced the trial, heard the evidence of the witnesses recorded in his presence, consistently making the same accusation, it may not be said that the accused was not made aware of the case against him and thereby he suffered any prejudice." 27. Similarly a Bench of this court in another case Arshad Reza Khan Vs. State of Bihar reported in 2003(2) PLJR 204, while considering the earlier two decisions of the Apex Court in para 19 has said: "19. The question for consideration thus is whether the appellant can be said to have suffered any prejudice on account of inadequate examination under Section 313 Cr.P.C. As the language of Section 313 goes, and accused has to be given opportunity "to explain any circumstances appearing in the evidence against him", after the witnesses for the prosecution have been examined. The instant case is based on the direct evidence of the eye witnesses one of whom saw the appellant committing the murder while others saw him fleeing away (after committing the murder) from the place of occurrence. Where the prosecution rests wholly or partly on circumstantial evidence, any circumstance appearing in the evidence against the accused must be put to his notice. For example, an accused may have made judicial confession or on his pointing out the dead body or the weapon by which the crime was committed may be discovered. If evidence on this point is brought on record at the trial, an accused has to be asked to explain. If this opportunity is not given, that circumstance cannot be taken into account against him. Where the occurrence is seen by the witnesses and they depose to that effect in course of their evidence in Court, the sum total of their evidence is that the accused committed the crime as alleged by them. The appellant in the instant case was aware of the prosecution case from the very beginning. Where the occurrence is seen by the witnesses and they depose to that effect in course of their evidence in Court, the sum total of their evidence is that the accused committed the crime as alleged by them. The appellant in the instant case was aware of the prosecution case from the very beginning. No new circumstance came in the evidence, relied upon by the prosecution. If it were so, that particular circumstance or circumstances could be ignored, as was done in the cases reported in AIR 1984 Supreme Court 1622 and (2000)8 SCC 382 , Para 28. In the facts of the case, I do not think the appellant suffered any prejudice on account of inadequate examination under Section 313.I thus do not find any merit in the contention of the Counsel." 28. The appellants were fully aware of the charges and materials collected during trial and to meet the circumstances accrued against them and they have filed sufficient documents out of which Ext. A, C and D are enter-related. Ext.D is certified copy of fardbeyan of the deceased Doman Mahto, on basis of which Ext.C, formal F.I.R. of Bhagwanpur P.S. Case No. 9 dated 11.11.1980 was instituted and after investigation, police submitted final form Ext.A. The gist of Ext.D was that there was some attempt upon the deceased who was sleeping in Varandah in the mid-night, on alarm one Arti Devi, a trained nurse came out of the room and she also was assaulted and after investigation police found no clue but averted that the occurrence might have been taken place due to some unwanted relationship between Arti Devi and deceased, on basis whereof it was argued that deceased had illicit connection and perhaps he was killed due to the same, but only on basis of some observation in final form without any material specifically indicating such thing, the plea can only be held baseless. Ext.B is ordersheet right from 21.03.1979 till 07.02.1981 in proceeding under section 107 of the Code of Criminal Procedure initiated on basis of Ext.G report of the then Mukhiya. But ultimately the proceeding was dropped without examination of even one single witness on behalf of complaining party. Ext.B is ordersheet right from 21.03.1979 till 07.02.1981 in proceeding under section 107 of the Code of Criminal Procedure initiated on basis of Ext.G report of the then Mukhiya. But ultimately the proceeding was dropped without examination of even one single witness on behalf of complaining party. Ext.E is destruction report of original F.I.R. of Bhagwanpur P.S. Case No. 7(8)79, certified copy of which has been marked as Ext.F.The same is instituted on the statement of one Nassimuddin against deceased Doman Mahto and two others including one Ram Nandan Paswan son of P.W.2 Laxmi Paswan. Wherein appellant no.1 shown as one of the witness, but arrived at the place of occurrence after occurrence. On the basis of such materials, the defence tried to convince that on basis of enmity they have been falsely implicated and there is possibility of murder of the deceased by some other persons annoyed of questionable connection with Arti Devi. It is cardinal principle of law that enmity cuts both the ways. Defence submission is not acceptable in view of convincing evidence on record produced by prosecution as discussed above. 29. As submitted earlier, in the instant case, detail written statement was filed by the appellants and in spite of repeated queries nothing has been pointed out causing any sort of prejudice to either of the appellants and that apart. So far appellants 2 to 4 are concerned, the circumstances relied upon by the trial court are not found convincing, so they deserve the benefits caused in absence of any circumstances against him. 30. Appellant no.1 Ram Jiwan Choudhary carries specific allegation of shooting at the deceased at the relevant time, this question was put to him under section 313 of the Code of Criminal Procedure. He has also adduced evidence showing enmity and also admits in his reply that there was contest with Laxman Babu and the deceased for the post of Mukhiya, wherein the deceased lost. Of course, he has denied being Manager of said Laxman Babu, but this question was also put to him and there is evidence on record. 31. For better appreciation, the question put to appellant no.1 under section 313 of the Code of Criminal Procedure and his reply is reproduced here: Q. Kaha jata hai ki Laxman Babu tatha Doman ke bich Mukhiya pad ke chunav lekar sangharsh hua tha tatha aap Laxman Babu ke manager hai. 31. For better appreciation, the question put to appellant no.1 under section 313 of the Code of Criminal Procedure and his reply is reproduced here: Q. Kaha jata hai ki Laxman Babu tatha Doman ke bich Mukhiya pad ke chunav lekar sangharsh hua tha tatha aap Laxman Babu ke manager hai. aap ko kuch kahana hai? A. Mukhiya ke live sangharsh hua tha. Mai Laxman Babu ka manager nahi hu. Q. Sakshya hai ki 12.09.82 ko Prem Kumar ke aadesh par aapne Doman ki hatya goli mar kar ki. Aap ko kya kahana hi? A. Maine hatya nahi ki. 32. No doubt, the questions could have been put before appellant no.1 in better way but such minor discrepancies specially in absence of any case of prejudice caused to him and filing of detailed written statement meeting all the circumstances accrued disentitled the appellant no.1, any technical benefit for any minor latches caused while recording his statement under section 313 of the Code of Criminal Procedure. On careful consideration of the decision relied upon by learned counsel for the appellants, it is evident that before the Apex Court in the said case of Sharad Birdhichand (supra) no written statement was filed by the appellants nor the view taken earlier on this point by the Apex Court, taking into consideration the filing of written statement by defence and prejudice if any caused to it, were placed for consideration. 33. Here, it would also not be out of place to mention that learned counsel for the appellants further placed reliance upon an unreported decision of the Apex Court dated 07.01.2011 in Criminal Appeal No. 1283 of 2010 Sajjan Sharma Vs. The State of Bihar, wherein in para 16 it has been held as such: "Having regard to the charge that was framed against the appellant and his examination by the court under section 313 of the Code of Criminal Procedure the point raised by Mr. Rai cannot be said to be entirely without substance but we see no reason to go into that technical aspect of the matter since we find that the appellant has a good case on merit as well." But in the instant appeal, the appellants are not going to have any technical benefit for the reasons discussed above. Rai cannot be said to be entirely without substance but we see no reason to go into that technical aspect of the matter since we find that the appellant has a good case on merit as well." But in the instant appeal, the appellants are not going to have any technical benefit for the reasons discussed above. 34 No doubt, informant P.W.4 did not inform the police, but the investigating officer on hearing some rumour arrived at the place of occurrence roughly within two hours after recording sanha entry. It is true that sanha entry is not on record, but the investigating officer has clearly stated in his evidence that he arrived on hearing of some rumour. This does not mean that he got any definite information of any cognizable offence compelling him to institute the case on the basis thereof. Nothing also has been taken in cross-examination as regard to contents of such information received. 35. In order to establish that information received by the police was sufficient to institute the case. Defence could have taken pains to put any such question before the investigating officer or taking steps to bring sanha entry on record. In absence of any such steps only because sanha entry is not on record, it cannot be firmly opined that case instituted on basis of fard-e-beyan is hit under any law, including Section 162 of the Code of Criminal Procedure as argued by the learned counsel for the appellants. 36. On overall consideration of the legal and factual aspect, we are of the firm view and hold that the prosecution has been able to establish by cogent and convincing evidence that appellant no.1 has shot dead deceased Doman Mahto, consequently substantiate the charge against appellant no.1 Ram Jiwan Choudhary whose conviction and sentence needs no interference. But at the same time the prosecution has failed to remove the clouds casted against the involvement of remaining three appellant nos. 2 to 4 namely, Prem Kumar Choudhary, Dilip Kumar Sinha and Suresh Choudhary alias Ram Suresh Choudhary in said killing, rather they deserve the benefit of doubt. So, their conviction and sentence, is not sustainable. 37. In the result, conviction and sentence with respect to appellant nos. 2 to 4 namely, Prem Kumar Choudhary, Dilip Kumar Sinha and Suresh Choudhary alias Ram Suresh Choudhary, is set aside and appeal to this extent stands allowed. So, their conviction and sentence, is not sustainable. 37. In the result, conviction and sentence with respect to appellant nos. 2 to 4 namely, Prem Kumar Choudhary, Dilip Kumar Sinha and Suresh Choudhary alias Ram Suresh Choudhary, is set aside and appeal to this extent stands allowed. But, conviction and sentence of appellant no.1 namely, Ram Jiwan Choudhary, needs no interference, finding no merit in appeal to the extent of appellant no.1, is hereby dismissed. He is further directed to surrender before the court below to serve remaining sentence. SHYAM KISHORE SHARMA, J. 38 I agree.