JUDGMENT : Ananda Sen, J. 1. This criminal appeal is directed against the judgment of conviction and order of sentence dated 18.03.2005, passed by Shri Ramdhari Yadav, the learned 4th Additional Sessions Judge, Godda (Fast Track Court no. 1) in connection with Session Case No. 151 of 1998/36 of 2002, whereby and whereunder, the appellants having been found guilty of charges under Sections 302/34 of Indian Penal Code, have been sentenced to undergo imprisonment for life. 2. The case of the prosecution, in brief, is that, the deceased Jailo Devi aged about 18 years was married with Babulal Yadav. Babulal Yadav lived alone with his wife Jailo Devi. The informant has stated that his Bahnoi (brother-in-law) Babulal Yadav had gone to his sister’s house on the day of the alleged occurrence so the informant went to his sister’s house (Babulal's house) to take care of her. When the informant was sitting in her sister’s house, at about 4:00 a.m early in the morning, Manoj Yadav, Bandhu Yadav, Jai Kishore Yadav son of Narsingh Yadav, Jai Kishore Yadav son of Shailigram Yadav, Janki Yadav, Bishnu Yadav, Shaligram Yadav, Narsingh Yadav came there and after seeing them the informant fled away due to fear. All accused persons entered into the house of his brother-in-law and they were armed with spear and lathi. The informant has further stated that all the accused persons started to assault his sister Jailo Devi and ultimately killed her. He shouted, but no villagers came there at that moment. When the accused fled away then Naresh Yadav and Upendra Yadav came there. He stated that the occurrence took place due to land dispute. On the basis of the aforesaid Fardbeyan of the informant, Godda (M) P.S. Case No. 245 of 97, corresponding to G.R. No. 700/97, was registered for the offence under Section 302/34 of Indian Penal Code, against the accused persons. Subsequently, the matter was taken up for investigation and the police examined the witnesses and sent the dead body for Post Mortem Examination. After completion of investigation, charge sheet was submitted against the accused persons and, accordingly, cognizance of the offence was taken and the case was committed to Court of Sessions for trial. 3. In order to prove the charges against the accused, the prosecution has examined altogether seven witnesses including the Doctor (PW-6). After completion of investigation, charge sheet was submitted against the accused persons and, accordingly, cognizance of the offence was taken and the case was committed to Court of Sessions for trial. 3. In order to prove the charges against the accused, the prosecution has examined altogether seven witnesses including the Doctor (PW-6). The Trial Court after going through the materials on record and also considering the evidence of the prosecution witnesses has found the charges levelled against the accused persons to be proved and, thereafter, sentenced them as aforesaid. 4. Mr. S.P. Roy, learned counsel appearing for the appellants has assailed the judgment of the learned court below on the following grounds:- (i) P.W.-2, Nirmla Devi, has deposed that she awoke on the shouting of Chhatish Yadav and came out from her house and she saw the appellants and other accused armed with Chhura in their hands and they were coming from the house of Babulal Yadav. She further deposed that when all the accused appellants went away, then she and Satish Yadav went in the house of Babulal Yadav and saw the injury on the head and chest of the deceased due to which, the deceased died. She further deposed that there is enmity with all the accused persons much prior to the alleged occurrence, which itself suggests that a dispute was going on between the accused persons and informant. He submits that thus this witness is not an eye witness and is an interested one. (ii) P.W.-3, Satish Prasad Yadav, who is the informant of the case and is claiming to be an eye witness, has deposed that his Bahnoi (brother-in-law) was not at his house but he was at his house. When he was sitting at Varandah, all the accused persons were searching Babulal. The accused-appellant, Manoj Yadav stabbed Jailo Devi by Chaku(knife) and other accused persons assaulted her by slaps and feet. The accused-appellants also assaulted him and ousted him from the house and therefore, PW-3 Satish Prasad Yadav is not an eyewitness to the occurrence as he had not seen the occurrence, as he fled from the place of occurrence. He developed the story in Court and, therefore, he is not a reliable witness and conviction of the appellants cannot be sustained basing upon the evidence of this witness. He developed the story in Court and, therefore, he is not a reliable witness and conviction of the appellants cannot be sustained basing upon the evidence of this witness. (iii) PWs-1, 4 and 5 are the witnesses who had not seen the occurrence and they are merely the hearsay witnesses. He submits that in fact, there is no eye witness to the actual incident. (iv) P.W.-6, Dr. Ashok Kumar, has deposed that he had conducted the postmortem examination on the body of the deceased and opined that the cause of death due to shock and hemorrhage resulting from ante mortem injury on head, which itself signifies that the instant case has been instituted against the accused appellants only on the basis of a false story, propounded by the informant. (v) It has been submitted that there is no intention to kill Jailo Devi, which is apparent from the evidence itself and thus the conviction of these appellants is absolutely bad. He also submits that from the evidence on record, it is clear that there is no specific allegation attributed against any of the appellants. (vi) Investigating Officer has not been examined by the prosecution, which is fatal for the defence, which creates a lacuna in the case of the prosecution. (vii) The impugned judgment has illegally been passed without appreciating the evidence, as none of the prosecution witnesses have actually seen the real occurrence and later on they developed the prosecution story and, therefore, the conviction of the appellants are not justified. (viii) Learned counsel for the appellants in support of his submissions has also referred to and relied upon the judgments reported in (2003) 4 JLJR 329 . 5. Learned Additional Public Prosecutor, has vehemently opposed the contentions raised by the learned counsel for the appellants and submits that there is overwhelming evidence against the appellants to hold them guilty for the aforesaid offence and there is no illegality or infirmity in the impugned judgment of conviction and order of sentence and, hence, the finding arrived at, by the learned trial court, do not require any interference by this Court. The evidence of the eyewitness (PW-3) is very clear and cogent and, therefore, this appeal may be dismissed. The learned Addl. The evidence of the eyewitness (PW-3) is very clear and cogent and, therefore, this appeal may be dismissed. The learned Addl. P.P. Further submits that the appellants have not been able to shake the credibility of the eye witness and there is no material contradiction in the case of the prosecution, hence non-examination of the Investigating Officer as a witness is of no consequence. Learned Addl. P. P. has also referred to and relied upon the judgments reported in AIR 1989 SC 1539. 6. Heard the argument advanced on behalf of the parties and have gone through the lower court record minutely. 7. This case hinges upon the evidence of P.W. 3-Satish Prasad Yadav and the evidence of P.Ws. 2, 4 and 5. P.W.-3 in his evidence clearly stated that when he was in the house, these appellants forcibly entered into the house and was searching Babulal, but Babulal was not found. Manoj Yadav gave a knife blow to the deceased. This witness was assaulted thus he fled from the house. Thereafter, he made hue and cry. On hearing his scream, Rajendra Yadav, Nirmala Devi and Keso Devi came and they entered the house where dead body of the deceased was found. He in paragraph 8 further deposed that when other villagers came, the appellants were leaving from the place of occurrence i.e. the house of the deceased. P.W.2 is the Nirmala Devi, who is the neighbour of the deceased. She categorically stated that at 03:00 O' Clock, she heard the scream of P.W.-3, thereafter she came out from her house and saw the appellants. She deposed that Manoj and Bandhu were armed with knife in their hands and they were coming out from the house of Babulal. She further deposed that when the appellants were leaving the house, she and P.W.3 entered into the house and saw the dead body of the deceased. There were marks of assault on head and chest of the deceased also. In cross-examination, she stated that she is the next door neighbour of the deceased and it was a full moon night. Though, in cross-examination, she stated that there was earlier dispute between the appellants and her family, but what was the nature and extent of dispute, has not been stated by her. Save and except this, nothing has been illicited by the defence from the cross-examination of this prosecution witness. Though, in cross-examination, she stated that there was earlier dispute between the appellants and her family, but what was the nature and extent of dispute, has not been stated by her. Save and except this, nothing has been illicited by the defence from the cross-examination of this prosecution witness. P.W.4-Rajendra Yadav also deposed that on hearing hulla he came out from his house and saw the appellants leaving the house of Babulal Yadav. He stated that Manoj Yadav was having a Chhura (knife), Dinbandhu was having Gadasa (sharp cutting weapon) and Jai Prakash was having Bhala (Spear) in their hands. He also stated that when he entered the house of the deceased, the appellants were leaving from the house and he found that Jailo Devi was murdered. He further stated that he is next door neighbour of Babulal. He also deposed that there was a dispute amongst the parties. He gave a details description of weapons, which were being carried by the appellants. P.W.5 has also deposed in the same manner. 7. The Doctor, who has conducted the postmortem of the deceased, found the following mortem injuries:- (i) Dead body of young pregnant lady with rigor mortis present in upper and lower limbs. Mouth-Slightly opened, eyes were closed, anterior portion of tongue was slightly propoundering antemortem injuries. (A) Incised wound on top of skull on the left parietal reason. Direction mainly anterior and posterior with slightly oblique direction size 2” x 1/2” x 4 ½” deep. (B) Abrasion 1” x ½” on dorsal aspect of left elbow. This witness has further stated about the finding of dissection: Left parietal bone of skull scalp seal put 2”x ½”x whole thickness with numerous blood clots in the left temporal and parietal lobs of the brain. Left parietal bone was showing sharp cut wound 2 ¼”x1 ½”x4” with too much blood clots in the area. Heart:-Almost empty except for a little blood in right side. Lungs, Liver, Spleen-pale, stomach had about 200 grams of very little digested food material. On cutting the uterus a female baby was found in the womb which was bluish in colour and about 38 weeks size. Probable time since death:-24 hours. 8. From the evidence on record, there is nothing to disbelieve the deposition of P.W.3, who is informant of this case. P.Ws. On cutting the uterus a female baby was found in the womb which was bluish in colour and about 38 weeks size. Probable time since death:-24 hours. 8. From the evidence on record, there is nothing to disbelieve the deposition of P.W.3, who is informant of this case. P.Ws. 2, 4 and 5 also categorically stated that on hearing the scream of P.W.3, when they came out from their houses, they saw these appellants coming out from the house of the deceased, armed with deadly weapons. The informant is not the eye witness but he is the eye witness of the fact that these appellants entered into the house of the deceased, armed with deadly weapons, in search of Babulal and thereafter assaulted the deceased. After he raised a cry, P.Ws. 2, 4 and 5 saw these appellants coming out from the house of the deceased with deadly weapons. These P.Ws. 2, 4 and 5 entered into the house immediately when the appellants left the house and found the deceased lying dead. Thus, this fact is proved that these appellants armed with deadly weapons entered into the house of the deceased and assaulted the deceased and thereafter they were seen coming out from the house of the deceased. Immediately, when the appellants left the house, the informant and P.Ws. 2, 4 and 5 entered into the house and saw the dead body of the deceased. From this fact, the only conclusion, which can be drawn is that these appellants assaulted the deceased, resulting to her death. 9. The arguments of the counsel for the appellants that Section 34 IPC is not applicable in this case, cannot be accepted. The appellants were armed with deadly weapons, forming a group entered into the house of Babulal. They were searching Babulal and when they did not find him, they assaulted the deceased, who happens to be the wife of Babulal. One of the accused was armed with sword, another with Gadasa and one with spear and the rests were having lethal weapons like lathi. The postmortem report also supports the case of the prosecution. This circumstance clearly suggests that there was common intention of all the accused persons to commit murder and thus, Section 34 of the Indian Penal Code will apply in the instant case. The postmortem report also supports the case of the prosecution. This circumstance clearly suggests that there was common intention of all the accused persons to commit murder and thus, Section 34 of the Indian Penal Code will apply in the instant case. The judgments cited by the appellants, on the facts of this case is of no help to the appellants. 10. Under the circumstances, this Court finds that the trial court was absolutely justified in recording the order of conviction and sentence. Accordingly, the judgment of conviction and order of sentence do not warrant any interference by this Court and, hence, it is affirmed. 11. In the result, this appeal is dismissed.