Judgment D.N. Patel, J. 1. Both these appeals have been preferred by original accused no. 1 and original accused no. 2 respectively of Sessions Trial No. 65 of 1990 as they have been punished for life imprisonment for the offence punishable under Section 302 of the Indian Penal Code to be read with Section 34 of the Indian Penal Code by learned Additional Judicial Commissioner-I, Khunti vide judgment of conviction and order of sentence dated 16th July, 2002. 2. It is the case of the prosecution that P.W. 8 Prakash Sanga informant had given his fardbeyan on 17th September, 1986 that on 16th September, 1986 he saw his brother-in-law Walter Purty and Habil Purty (original accused no. 2) were quarreling with each other, at evening hours. The reason for quarreling was that Habil Purty was demanding money for liquor from the driver of the trucks, which were passing through. This was objected by Walter Purty and, therefore, threat was given by Habil Purty to Walter Purty and on the same day at about 08:00 p.m. when Walter Purty was going to missionary school (because he always used to sleep in the said school) from Sarwada Mission Chowk, he was assaulted by dagger by Habil Purty (original accused no. 2appellant in Criminal Appeal No. 736 of 2002). Younger brother of Habil Purty, namely, James Purty (original accused no. 1appellant in Criminal Appeal No. 491 of 2002) had blocked Walter Purty from the front side and, thereafter, Habil Purty had assaulted Walter Purty by dagger. Walter Purty attempted to run away, but, there was injury on his stomach, which made him senseless and because of dagger blows, Walter Purty expired on the spot. After recording of the fardbeyan, investigation was carried out, several statement of the witnesses were recorded, charge-sheet was filed and the case was committed to the Sessions Court being Sessions Trial No. 65 of 1990 and on the basis of the evidences given by P.W. 1 to P.W. 10 and on the basis of other documentary evidence on record, the learned trial court has convicted both the accused for the offence of murder of Walter Purty and they have been sentenced for life imprisonment for the offence punishable under Section 302 of the Indian Penal Code to be read with Section 34 of the Indian Penal Code. Against the judgment of conviction and order of sentence passed by learned Additional Judicial Commissioner-I, Khunti, original accused no. 1 has preferred Criminal Appeal No. 491 of 2002 and original accused no. 2 has preferred Criminal Appeal No. 736 of 2002. 3. We have heard learned counsel for the appellants, who has submitted that the prosecution has failed to prove the offence of murder beyond reasonable doubt. There is no allegation against James Purty original accused no. 1, who is appellant in Criminal Appeal No. 491 of 2002. It is also submitted by learned counsel for the appellants that James Purty has not caused any injury to the deceased-Walter Purty. Not a single eye witness or any other prosecution witness has stated that James Purty has caused any injury upon the body of the deceased. This aspect of the matter has not been properly appreciated by the learned trial court. Moreover, it is submitted by learned counsel for the appellants that the prosecution has failed to prove common intention on the part of original accused no. 1 sharing with original accused no. 2 and, therefore, the judgment of conviction and order of sentence passed by learned trial court for James Purty (appellant in Criminal Appeal No. 491 of 2002) deserves to be quashed and set aside. It is further submitted by learned counsel for the appellants that bail was granted to James Purty by suspending the sentence while admitting the Criminal Appeal No. 491 of 2002. It is also submitted by learned counsel for the appellants that looking to the postmortem report, which is at Ext.1, there is no incised wound, which is capable of being caused by the so called weapon alleged in the hand of James Purty. It is alleged by the prosecution that James Purty was having Tangi in his hand. Tangi is a sharp cutting instrument and there is no corresponding injury upon the body of the deceased, as per postmortem report at Ext.1 and, therefore also, there was no common intention shared by James Purty with Habil Purty. This aspect of the matter has not been properly appreciated by the learned trial court and, hence, the judgment of conviction and order of sentence passed by the trial court for James Purty deserves to be quashed and set aside. 4. This aspect of the matter has not been properly appreciated by the learned trial court and, hence, the judgment of conviction and order of sentence passed by the trial court for James Purty deserves to be quashed and set aside. 4. It is also submitted by learned counsel for the appellant in Criminal Appeal 736 of 2002, which is preferred by original accused no. 2 that P.W.1 is not an eye witness of the incident, at all. Learned counsel for the appellants has pointed out that P.W.8, who is claiming to be an eye witness, is ousting the presence of P.W.1 at the time of incident. Similarly, P.W.8 is not an eye witness because P.W.1 has stated in his cross examination that at the time of murder of deceased, no one was there other than P.W.1. Thus, the depositions of P.W.1 and P.W.8 are in contradiction with each other. It is also submitted by learned counsel for the appellants that the postmortem report has not been proved, at all and the doctor has not been examined, in this case and, therefore, original accused no. 2 could not have been convicted for the offence of murder of deceased. Learned counsel for the appellants has relied upon the decision rendered by the Hon'ble Supreme Court reported in 2008 (1112) SBR 268 as well as the decision rendered by this Court reported in 2006 (3) JLJR 6 . On the basis of these two judgments, learned counsel for the appellants submitted that if the doctor is not examined then postmortem report cannot be relied upon and, hence, the trial court could not have convicted original accused no. 2 or even original accused no. 1 for the offence of murder of deceased. It is also submitted by learned counsel for the appellants that P.W.3, P.W.4, P.W.5, P.W.6 and P.W. 9 have not supported the case of the prosecution either because P.W.3 and P.W.4 are hearsay witnesses or because P.W.5 and P.W.6 are tendered witnesses and P.W.9 is a hostile witness. Thus, the prosecution has failed to prove the offence of murder of deceased by these two appellants beyond reasonable doubt. This aspect of the matter has not been properly appreciated by the learned trial court and, hence also, the judgment of conviction and order of sentence passed by learned trial court deserves to be quashed and set aside. 5. Thus, the prosecution has failed to prove the offence of murder of deceased by these two appellants beyond reasonable doubt. This aspect of the matter has not been properly appreciated by the learned trial court and, hence also, the judgment of conviction and order of sentence passed by learned trial court deserves to be quashed and set aside. 5. We have heard learned A.P.P. appearing on behalf of the State, who has submitted that the case of the prosecution is based upon more than one eye witness, who are P.W.1 and P.W.8. P.W.8 is the informant and brotherinlaw of the deceased. It is submitted by learned A.P.P. that both witnesses have clearly narrated the role played by Habil Purty, who has assaulted Walter Purty by dagger which has resulted into the death of Walter Purty on the spot. It is also submitted by learned A.P.P. that looking to the document at Ext.1postmortem report, there is enough corroboration by the deposition given by P.W.1 and P.W.8. Thus, ocular evidence and medical evidence are corroborating each other. This aspect of the matter has been properly appreciated by the learned trial court and, hence, these appeals may not be entertained by this Court. 6. Having heard learned counsel for both the sides and looking to the evidences on record, it appears that: (i) The incident has taken place on 16th September, 1986 at about 08:00 p.m. Informant Prakash Sanga, who is brother-in-law of the deceased, had given statement before the police on 17th September, 1986 that his brotherinlaw Walter Purty and Habil Purty (original accused no. 2) were quarreling with each other at evening hours on 16th September, 1986. The reason for quarreling was that Walter Purty prevented Habil Purty from illegal collection of money from the truck drivers. Habil Purty was collecting money for drinking liquor and because of this reason, there was quarrel between them and Walter Purty was given threat by Habil Purty and on the same day at about 08:00 p.m. when Walter Purty was going to missionary school for sleeping because he was always sleeping in the said school, he was attacked by Habil Purty with dagger. Younger brother of Habil Purty, namely, James Purty (original accused no. Younger brother of Habil Purty, namely, James Purty (original accused no. 1) had blocked Walter Purty from the front side and, thereafter, Habil Purty had caused injuries by dagger upon Walter Purty and because of the injuries, Walter Purty expired on the spot. (ii) It appears that P.W.8informant is an eye witness. Looking to the deposition given by P.W.8 and also looking to his cross examination, it appears that nothing is coming out in favour of Habil Purty, who is appellant in Criminal Appeal No. 736 of 2002. P.W.8 has clearly narrated the place of offence, time of offence and the manner of offence. There is no mistaken identity of the accused. Weapon has also been clearly narrated by this eye witness and on which part injury was caused that has also been narrated. Thus, looking to the deposition of P.W.8, he is a trustworthy and reliable witness. He has proved the First Information Report (Ext.2), which is signed by him. (iii) Looking to the deposition of P.W.1, namely, Johan Puri who is brother-in-law of the deceased, it appears that he has also narrated the incident, in detail. P.W.1 has stated that Habil Purty original accused no. 2 chased Walter Purty and has caused injuries upon him by dagger and the injuries were so severe that Walter Purty expired, on the spot. Looking to the cross examination of this witness, it appears that nothing is coming out in favour of the appellant, namely, Habil Purty. The narration of the manner in which murder has taken place is also tallying with the First Information Report, given by P.W.8. This witness is also a trustworthy and reliable witness. (iv) Looking to the postmortem report which is at Ext.1, it appears that following are the injuries upon the body of the deceased: “Injuries (1) Stabbed wound at the junctia of abdomen and chest (of the) at the 10th inter costal space in the line of left nipple on the left side measuring 2''x ½'' x 7'' deep puncturing the spleen. The abdominal cavity was full of blood and blood stained fluid. The abdominal cavity was full of blood and blood stained fluid. (2) Stabbed wound 2 ½'' x ½'' x 4'' deep on the left side of neck cutting muscles & superior vena on exploration trachea was found punctured.” (v) Looking to the evidence given by P.W.7Banwari Lal Jaiswal, it appears that he has proved the postmortem report in the handwriting and signature of Dr. Samuel Minz. P.W.7 has stated that he knows the handwriting of Dr. Samuel Minz, who has carried out postmortem of the deceased. P.W.7 was examined by the trial court. Looking to the cross examination of this witness, it appears that the appellants have never raised any objection for giving exhibit number to the postmortem report. Thus looking to the nature of injuries, it appears that Habil Purty has caused two injuries upon the body of the deceased by dagger. Thus, ocular evidence and medical evidence are corroborative. (vi) Learned counsel for the appellants submitted that P.W.1 has not shown presence of P.W.8 and P.W.8 has not shown presence of P.W.1 and, therefore, both are unreliable witnesses. This contention is not accepted by this Court because whether a witness is reliable and trustworthy, that should be verified looking to the deposition given by that very witness. We have perused the cross examination of P.W.1 and P.W.8 as well as their examination-in-chief. Looking to their depositions, it appears that they have clearly narrated the whole incident, in detail and they have correctly stated the place of offence, time of offence and the manner of offence. There is no mistaken identity of the accused nor even of weapon and their depositions are getting enough corroboration by the postmortem report which is at Ext.1. One witness might not be referring another witness, in his deposition. That all depends upon his observation power. The deposition in the Court is based upon observation, memory and reproduction of memory in the court. One witness is an eye witness or not, that has to be judged by the deposition given by that very witness. Cross examination is the weapon in the hand of the defence. That all depends upon his observation power. The deposition in the Court is based upon observation, memory and reproduction of memory in the court. One witness is an eye witness or not, that has to be judged by the deposition given by that very witness. Cross examination is the weapon in the hand of the defence. We have perused the cross examination of both these witnesses and we see no reason to accept the contention raised by the learned counsel for the appellants that none of these witnesses are eye witnesses, on the contrary, looking to their depositions, it appears that they are trustworthy and reliable witnesses and their depositions are also getting enough corroboration by the postmortem report and, therefore, we see no reason to disbelieve these two eye witnesses. (vii) Learned counsel for the appellants has relied upon the decision rendered by the Hon'ble Supreme Court in the case of Kapil Deo Sinha v. Kirandeo Prasad & Anr. reported in 2008 (1112) SBR 268. We have perused this judgment. Looking to the evidences on record of the present case, it appears that the case of the prosecution is based upon two eye witnesses and postmortem report, which is at Ext.1. Postmortem report is providing enough corroboration to the deposition of the eye witnesses. In the present case, Dr. Samuel Minz, who has carried out postmortem of the deceased, had expired and, therefore, P.W.7Banwari Lal Jaiswal was examined as a prosecution witness. Looking to the deposition given by P.W.7 and also looking to his cross examination, it appears that this witness knows the handwriting of Dr. Samuel Minz. The reasons have also been given for his knowledge. Postmortem report is exhibited as Ext.1. Nothing is coming out in favour of the appellant, namely, Habil Purty. No objection has been raised by this appellant for giving exhibit number to the postmortem report. Moreover looking to Section 294 of the Code of Criminal Procedure, when no objection has been raised and it is admitted as an evidence before the learned trial court without any objection, we see no reason to discard the evidence of Ext.1. Looking to these peculiar facts of the present case, the ratio of the aforesaid decision is not applicable in the present case. Looking to these peculiar facts of the present case, the ratio of the aforesaid decision is not applicable in the present case. (viii) Learned counsel for the appellants has also relied upon the decision rendered by this Court in the case of Raj Krit Singh v. State of Jharkhand reported in 2006 (3) JLJR 6 . This decision is based upon the evidence where postmortem report was not given exhibit number, at all, whereas, in the facts of the present case, on the basis of the evidence given by P.W.7 that he knows the handwriting of the doctor, who has carried out postmortem of the deceased Ext.1 is the postmortem report. This evidence on record as well as the fact that never any objection was raised by the appellants before the learned trial court for giving exhibit number to the postmortem report make the present case different from the facts of the case reported in 2006 (3) JLJR 6 . The ratio in the aforesaid judgment is not applicable to the facts of the present case. (ix) So far as James Purty appellant in Criminal Appeal No. 491 of 2002 is concerned, there is no evidence on record that he has caused any injury upon the body of the deceased nor any common intention has been proved by the prosecution. It is stated by the prosecution that James Purty was also having sharp cutting instrument, namely, Tangi in his hand, but, no injury has been caused by him upon Walter Purty. Thus, it appears that no role has been played by the appellant in Criminal Appeal No. 491 of 2002 in causing murder of the deceased nor was he sharing common intention with original accused no. 2. The prosecution has failed to prove the common intention beyond reasonable doubt. 7. In view of the aforesaid evidences and reasons, it appears that no role has been played by James Purty, who is appellant in Criminal Appeal No. 491 of 2002, in causing murder of the deceased. No injury has been caused by him upon the body of the deceased nor was he sharing common intention with Habil Purty original accused no. 2 in Sessions Trial No. 65 of 1990. The prosecution has failed to prove the offence of murder committed by James Purty beyond reasonable doubt. This aspect of the matter has not been properly appreciated by the learned trial court. 2 in Sessions Trial No. 65 of 1990. The prosecution has failed to prove the offence of murder committed by James Purty beyond reasonable doubt. This aspect of the matter has not been properly appreciated by the learned trial court. We, therefore, quash and set aside the judgment of conviction and order of sentence dated 16th July, 2002 passed by learned Additional Judicial Commissioner-I, Khunti, so far as James Purty (appellant in Criminal Appeal No. 491 of 2002) is concerned. James Purty is already on bail and, therefore, he is discharged from the liability of bail bonds and his security is also discharged from the liability and he is acquitted from the charges levelled against him. Criminal Appeal No. 491 of 2002 is allowed. 8. So far as Habil Purty appellant in Criminal Appeal No. 736 of 2002 is concerned, the prosecution has proved the offence of murder of the deceased, committed by this appellant beyond reasonable doubt. No error has been committed by the learned trial court in appreciating the evidences on record and convicting the appellant Habil Purty. We see no reason to alter the judgment of conviction and order of sentence dated 16th July, 2002 passed by learned Additional Judicial Commissioner-I, Khunti in Sessions Trial No. 65 of 1990. There is no substance in the Criminal Appeal No. 736 of 2002 and, hence, the same is, hereby, dismissed.