JUDGMENT : H.C. MISHRA, J. 1. All these five appeals arise out of the same impugned Judgment and as such, they were heard together and are being disposed of by this common Judgment. 2. Heard learned counsels for the appellants and learned counsel for the State. 3. The appellants are aggrieved by the impugned Judgment of conviction dated 5.02.2008 and Order of sentence dated 12.02.2008, passed by the learned Additional Sessions Judge, FTC-IV, Deoghar, in S.C. No. 105 of 2006, whereby the appellants Akbar Sheikh and Mansoor Sheikh have been found guilty and convicted for the offence under Section 302 of the Indian Penal Code, and the remaining 12 appellants have been found guilty and convicted for the offence under Sections 302/34 of the Indian Penal Code. Upon hearing on the point of sentence, all the appellants were sentenced to undergo rigorous imprisonment for life with fine of Rs. 5000/- each, for the said offence. 4. The prosecution case was instituted on the basis of the fardbeyan of the informant Wahid Sheikh, the uncle of the deceased Chhotka Sheikh, recorded on 27.09.2005, at about 2.00 PM, near Bihar (Biri) Godown, situated in village Pasia, P.S. Madhupur, District Deoghar, wherein the informant has stated that on the same day, he and his elder brother Usman Sheikh and nephews Chhotka sheikh and Company sheikh were going from their village Lalgarh to Madhupur Bazar, through Pasia Road. At about 11.30 AM, the accused Afzal came out from behind the wall (of the godown), telling that Chhotka Sheikh has arrived, apprehend him, whereupon, the other co-accused persons, who were also concealing themselves there, namely, Karu Sheikh, Kaila Sheikh, Mansoor Sheikh, Sanaul Sheikh, Almuddin Sheikh, Ahmed Sheikh, Saffauddin Sheikh, Murla Sheikh, Manjoor Sheikh, Labarwa Sheikh, Anamul Sheikh, Burhwa Sheikh and Nisar Sheikh came out. Upon seeing them, the nephew of the informant, Chhotka Sheikh, started fleeing away leaving behind his bicycle. In the meantime, Afzal Sheikh and Akbar Sheikh fired pistols upon Chhotka Sheikh, which hit on his back and at a distance of about 25 yards, he fell down. Company Sheikh, the brother of Chhotka Sheikh, tried to save him, but the accused persons threw him in the nearby field. In the meantime, Afzal Sheikh and Akbar Sheikh fired pistols upon Chhotka Sheikh, which hit on his back and at a distance of about 25 yards, he fell down. Company Sheikh, the brother of Chhotka Sheikh, tried to save him, but the accused persons threw him in the nearby field. Karu Sheikh, Kaila Sheikh, Sanaul Sheikh, Azmal Sheikh and Murla Sheikh pressed him on the ground, holding his hands, head and legs, and upon the orders given by Afzal Sheikh, Mansoor Sheikh, scaled upon the chest of Chhotka Sheikh and assaulted him on his neck by sword, due to which, he died at the spot. The informant, his brother and nephew fled towards their village, informing the villagers, whereupon several persons arrived there, but by that time the accused persons had fled away. On the basis of the fardbeyan of the informant Wahid Sheikh, Madhupur P.S. Case No. 219 of 2005, corresponding to G.R. No. 618 of 2005, was instituted against all the 16 named accused persons for the offences under Sections 302/34 of the Indian Penal Code and Section 27 of the Arms Act, and investigation was taken up. 5. The impugned Judgment shows that upon investigation, the police submitted the charge-sheet against 14 accused persons, who have faced the trial, keeping the investigation pending against Afzal and Azmal Sheikh. Evidences were led against them also and they were summoned to face the trial along with the other accused persons, under Section 319 of the Cr.P.C. by the Trial Court below, but they moved the High Court in Cr. Revision, in which, the stay order was passed in their favour. Accordingly, the trial continued only against 14 accused persons, who are the appellants before us. 6. After commitment of the case to the Court of Session, charge was framed against all these appellants for the offence under Sections 302/34 of the Indian Penal Code, and upon the accuseds pleading not guilty and claiming to be tried, they were put to trial. In course of trial, 14 witnesses were examined by the prosecution, including the I.O. and the Doctor, who had conducted the post-mortem examination on the dead body of the deceased. Out of material witnesses examined, PW-1 Jainul Sheikh and PW-2 Md. In course of trial, 14 witnesses were examined by the prosecution, including the I.O. and the Doctor, who had conducted the post-mortem examination on the dead body of the deceased. Out of material witnesses examined, PW-1 Jainul Sheikh and PW-2 Md. Ayub Sheikh have turned hostile and they have not supported the prosecution case at all, whereas, PW-3 Babulal karmakar and PW-4 Matin Sheikh have stated nothing about the accused persons. 7. PW-10 Wahid Sheikh is the informant in the case. This witness has stated that the occurrence had taken place on 27.9.2005 at about 11.00 to 11.30 AM. He was going to Madhupur market along with his brother Usman Sheikh and his nephews Chhotka Sheikh and Company Sheikh. Chhotka Sheikh and Company Sheikh were going ahead. When they reached near Bihar Godown, Afzal Sheikh came out of the wall, asking his companions to come out and apprehend Chhotka Sheikh, whereupon, all the other accused persons (named in the evidence), came out. Chhotka Sheikh started fleeing away leaving behind the bicycle, whereupon Afzal Sheikh and Akbar Sheikh fired pistols upon Chhotka Sheikh, and at about 20 to 25 yards, Chhotka Sheikh fell down. Karu Sheikh, Kaila Sheikh, Sanaul Sheikh, Murla Sheikh and Azmal Sheikh pressed him on the ground, holding his hands, head and legs. Mansoor Sheikh scaled upon the chest of Chhotka Sheikh and upon the orders given by Azmal Sheikh, Mansoor assaulted him on neck by sword, killing him at the spot. The other accused persons Almuddin Sheikh and Ahmed Sheikh were armed with revolver and Anamul Sheikh and Bhurwa Sheikh were armed with bhuzali. Almuddin Sheikh had restrained them. When they raised alarm, the accused persons started fleeing away. The police was informed and police arrived at the spot and recorded his fardbeyan, upon which, he put his thumb impression. The inquest report of the dead body was also prepared. One fired cartridge and bhujali were also recovered from the place of occurrence and seizure list was prepared by the police. The dead body was sent for post-mortem examination. The police had also seized the bicycle of Chhotka Sheikh. He has identified all the accused persons in the Court, stating that Afzal and Azmal were absconding. This witness was put to extensive cross-examination, wherein, he has stated that there was a dacoity in the house of Dr. The dead body was sent for post-mortem examination. The police had also seized the bicycle of Chhotka Sheikh. He has identified all the accused persons in the Court, stating that Afzal and Azmal were absconding. This witness was put to extensive cross-examination, wherein, he has stated that there was a dacoity in the house of Dr. Afzal, in which, he was also made an accused and he remained in jail for about eight and half months. His brother Usman Sheikh and nephews Nisar Sheikh, Aslam, Chhotka, Sahabuddin Sheikh and Anwar Sheikh were also in jail in that case and all of them were granted bail by High Court. After the occurrence, he had rushed towards the village raising the alarm, but he had not informed any specific person. About 100 to 125 persons had come to the place of occurrence. He had also gone to inform the police, where he gave the information about the murder of Chhotka Sheikh, but at the Police Station, neither he was asked about the names of the accused persons, nor he had given any detailed information. He had reached the Police Station at about 12.00 P.M. and soon thereafter, the police had arrived at the place of occurrence. He has stated that in the way from his house to Madhupur, Bihar Biri Godown is situated and they used to go to Madhupur through that route. In the night, they used to take the route through the Mosque. He has also stated that boundary wall of Bihar Biri Godown was about 500 feet long and they had not crossed the entire boundary wall by the time of occurrence. Near the said godown, there is one bounded premises of one Bengali family also and Afzal had come out of the boundary wall, from the side of the premises of Bengali family. Other accused persons were also near him. Upon seeing the accused persons, Chhotka left the cycle and started fleeing away and when he had gone 10 to 15 steps ahead, he was assaulted by pistol. He did not fell down there; rather he fell down after 10 to 12 feet. This witness and his brother were restrained and Company Sheikh was thrown in the nearby field, which was also shown to the police. Company was also assaulted by the butt of the revolver causing bleeding injury upon him. He did not fell down there; rather he fell down after 10 to 12 feet. This witness and his brother were restrained and Company Sheikh was thrown in the nearby field, which was also shown to the police. Company was also assaulted by the butt of the revolver causing bleeding injury upon him. His attention was drawn towards his statements before the police, and he claimed to have given the statement before the police that Almuddin and Ahmad were armed with revolver and Nizamuddin and Burhwa were armed with bhujali. This witness and his brother were restrained by four accused persons. He did not remember that the bhujali, which was seized, was blood stained or not. He has stated that he had no knowledge as to in how many cases Chhotka was the accused. He has denied the suggestion that he was not the eyewitness to the occurrence, and that Chhotka Sheikh was killed in a gang war. 8. PW-6 Company Sheikh, the brother of the deceased, and PW-8 Md. Usman Sheikh, the uncle of the deceased, are the eyewitnesses to the occurrence, who were also going along with the informant and the deceased to the market on the date of occurrence. They have also supported the prosecution case, more or less in the same manner, as stated by PW-10 Wahid Sheikh, the informant. They have also stated that the occurrence had taken place due to the dispute of secretary ship of the Mosque/Madarsa. They have also identified the accused persons. PW-6 Company Sheikh has also stated that when he tried to save the deceased, he was thrown away and he was apprehended by Manjoor, Nisar, Labarwa and Safauddin. When he raised the alarm, Safauddin assaulted him by butt of the pistol. Wahid and Usman were also restrained. PW-8 Md. Usman Sheikh, has also stated that at the time of occurrence, Alimuddin Sheikh, Ahmad Sheikh, Anamul Sheikh and Burhwa Sheikh had restrained him. He has also stated that Safauddin Sheikh had also assaulted the deceased by firearm, after the assault made by Mansoor. He had also put his thumb impression on the inquest report of the dead body. PW-8 Md. Usman Sheikh, has also stated that at the time of occurrence, Alimuddin Sheikh, Ahmad Sheikh, Anamul Sheikh and Burhwa Sheikh had restrained him. He has also stated that Safauddin Sheikh had also assaulted the deceased by firearm, after the assault made by Mansoor. He had also put his thumb impression on the inquest report of the dead body. In his cross-examination, the attention of PW-6 Company Sheikh was drawn towards his statements given before the police, and he has claimed to have given the statement before the police that he was apprehended by Manjoor, Nisar, Labarwa and Safauddin, and when he raised the alarm, Safauddin assaulted him by butt of the pistol. He has also stated that his statement was recorded by the police at the place of occurrence, at about 11.30 AM. The attention of PW-8 Md. Usman Sheikh was drawn towards his statements given before the police, and he has claimed to have given the statement before the police that Safauddin Sheikh had also assaulted the deceased by firearm, and that Alimuddin Sheikh, Ahmad Sheikh, Anamul Sheikh and Burhwa Sheikh had restrained him. This witness has also denied the suggestion that the deceased was killed in the gang war and the accused persons have been falsely implicated in the case, as they were in custody in connection with case of the dacoity in Afzal's house. 9. PW-5 Munna Khatoon is the wife of the deceased. She has supported the prosecution case as hearsay witness, stating that she was in her house, when Company Sheikh came there at around 11.30 AM and informed her about the murder of Chhotka Sheikh, by the accused persons. Thereafter, she went to the Biri Godown, where, she found the dead body of her husband with injury on neck. She has stated that the occurrence had taken place due to enmity. In her cross-examination, this witness has stated that Chhotka Sheikh was her husband. Prior to the occurrence, he was jailed in connection with a criminal case, relating to some quarrel with Afzal. She has stated that she was married to the deceased about five years ago. She has stated that her husband and her brothers were living in the same premises, but they were separate in mess. She has stated that she had no knowledge about any dacoity in Dr. She has stated that she was married to the deceased about five years ago. She has stated that her husband and her brothers were living in the same premises, but they were separate in mess. She has stated that she had no knowledge about any dacoity in Dr. Afzal’s house, but there was case, in which, her husband and his brothers were sent to jail. She has admitted that her husband had gone to jail in connection with two criminal cases and she has denied the suggestion of giving false evidence. 10. PW-7 Nishar Sheikh is the brother of the deceased and at the time of occurrence, he was at Deoghar Court. He has stated that on 27.09.2005 at 11.30 A.M. he was at Deoghar and about 12.00 P.M. he was informed by his advocate that some occurrence had taken place at his house. He took Toofan Express from Jasidih and he came to his house and thereafter, he went to the place of occurrence, where his villagers and police were present. He saw the dead body of his brother and he was informed by Wahid Sheikh and Company Sheikh that these accused persons, had committed the murder, assaulting the deceased by firearm and also cutting his neck. He has stated that the occurrence had taken place due the dispute between him and Afzal, relating to Madarsa. Afzal was the secretary of the Madarsa and he was a member, and due to this dispute, the occurrence had taken place. He has identified the accused persons present in the Court. In his cross-examination, this witness has stated that the accused Anamul had filed a criminal case upon him and in connection with that case, he had gone to Deoghar Court. He took Toofan Express at Jasidih at 12:35 P.M. and reached his house about 1:00 P.M. When he reached the place of occurrence, about 100 persons were present there. He has stated that there was no case of dacoity, murder or rape upon the deceased, but he has again admitted that in the case of dacoity in the house of Dr. Afzal, Chhotka Sheikh and his family members were accused. This witness was also in jail in connection with that case and they were granted bail by High Court. He had no knowledge about the case relating to abduction and murder of Master. Afzal, Chhotka Sheikh and his family members were accused. This witness was also in jail in connection with that case and they were granted bail by High Court. He had no knowledge about the case relating to abduction and murder of Master. This witness has stated that when he reached the place of occurrence, the Officer-Incharge of the Police Station was present there, and they were waiting for this witness to arrive and only after his arrival, the fardbeyan was recorded, as they considered him to be the guardian of the family. This witness has stated that after about 2 to 2½ years, after coming out from jail in the case relating to dacoity in Dr. Afzal’s house, this occurrence had taken place. He has denied the suggestion that his brother was killed in a gang war and the accused persons have been falsely implicated. 11. PW-9 Karim Sheikh, is the witnesses to the seizure of one bhujali and one fired cartridge from the place of occurrence, where he had gone and had seen the dead body. He has stated that the seizure list was prepared, on which, he had put his thumb impression and Nisar Sheikh had put his signature. PW-13 Shahnawaz and PW-14 Md. Sahabuddin are the seizure list witnesses of the seizure of bicycle from the place of occurrence, on which, they have proved their signatures. These witnesses have stated nothing about the occurrence. 12. PW-11 is Dr. S.K. Bijpuria, who is one of the members of the Medical Board, which had conducted the post-mortem examination on the dead body of the deceased. He has stated that he conducted the post-mortem examination on the dead body of the deceased along with Dr. Kumar Vinod and Dr. R.K. Pandey, on 28.09.2005, at about 11.55 A.M. and had found the following ante-mortem injuries on the dead body of the deceased:- (i) Sharp cutting wound at the level of thyroid cartilage at the anterior surface of the neck up to the angle of the mandible, cutting muscles, artery, vain and windpipe, size 7.5 cm x 2.5 cm x 2.5 cm. (ii) Sharp cutting wound over right cheek 5 cm x 2 cm x 2 cm. (iii) Sharp cutting wound over right forehead in the middle 4 cm x 1.5 cm x 1.5 cm. (ii) Sharp cutting wound over right cheek 5 cm x 2 cm x 2 cm. (iii) Sharp cutting wound over right forehead in the middle 4 cm x 1.5 cm x 1.5 cm. (iv) Lacerated wound 2.5 cm x 1.5 cm x 1.5 cm situated over dorsal aspect of right wrist. (v) Lacerated wound 2.5 cm x 1.5 cm x 1.5 cm situated over dorsal aspect of right hand. (vi) Multiple bruise of irregular dimension situated over whole of the body. (vii) Wound of entry, lateral side of left shoulder, 2 cm dimension oval in shape, margin blackened directing towards the chest. (viii) Bullet was extracted from the wound at the depth of 3 cm. It was sealed and handed over to the police. (ix) The wound of entry situated over antero lateral aspect of right thigh, below the groin fold of thigh 4” below, oval in shape, margin inverter size 2 cm, directed towards pelvis. (x) Wound of exit situated slightly above the base of right scrotum. He has stated that the cause of death was due to shock and haemorrhage caused by above mentioned injuries. The injury nos. (i) to (iii) may be caused by sword. He has stated that the post-mortem report was prepared by him and it bore his signature along with the signatures of Dr. Vinod and Dr. Pandey, and on his identification, the post-mortem report along with signatures were marked Exts. 1 to 1/2. In his cross-examination, this witness has stated that in injury No. (vii), the bullet travelled from upward to downward slightly, and in injury No. (ix), the bullet travelled from downward to upward. Injury No. (iii), (iv) and (v) could be caused by separate blows. 13. PW-12 Sheo Gope is the I.O. of the case. This witness has stated that on 27.9.2005, he was posted as Officer-Incharge of Madhupur Police Station. He recorded the fardbeyan of Wahid Sheikh, which he has proved and the same was marked the Ext.-2. He proved the formal FIR and the signature thereon and the same was marked Ext 2/1. He has stated that the fardbeyan was recorded at the place of occurrence itself, where he reached upon getting telephonic information and he had made sanha entry about that information. He proved the formal FIR and the signature thereon and the same was marked Ext 2/1. He has stated that the fardbeyan was recorded at the place of occurrence itself, where he reached upon getting telephonic information and he had made sanha entry about that information. He inspected the place of occurrence, which is a village road from village Pasia to Madhupur and near one Bihar Biri Godown, the dead body was lying in front of the gate of the godown, and the entire body was smeared with blood. There was blood on the ground also. At a distance of about 25 yards, one bicycle was also there, which he produced in the Court, and the same was marked Material Ext.-I. He recovered one bhujali and one fired cartridge also from the place of occurrence, which also he produced in the Court and they were marked Material Exts.-II and III respectively. The seizure lists were also prepared, which also he has proved as Exts. 2/2 and 2/3 respectively. The inquest report was prepared, which also he has proved and the same, along with the signatures were marked Exhibits 2/4 to 2/6. He recorded the re-statement of the informant and the statements of the witnesses. Thereafter, he was transferred and he handed over the charge of investigation on 6.11.2005. Upon going through the case diary, he has stated that the charge-sheet was submitted against 14 accused persons under Sections 302/34 of the Indian Penal Code. He proved the station diary entry about the telephonic information, which was marked Ext.-3. In his cross-examination, this witness has stated that it finds mentioned in paragraph-2 of the case diary that after two hours of counseling, the family members of the deceased agreed to give the fardbeyan and allowed the dead body to be taken for post-mortem examination. He had not recorded the statement of the owner or the workers of the Biri Godown. His attention was drawn towards the statements of the witnesses, in which, he has stated that Company Sheikh had not stated before him that he was apprehended by Manjoor, Nisar, Labarwa and Safauddin and Safauddin assaulted him by butt of the pistol, and Usman Sheikh had not stated before him that Safauddin Sheikh had also assaulted the deceased by firearm and that Alimuddin, Ahmad, Anamul and Burhwa had restrained him. Giving of such statements before him by the informant Wahid Sheikh has also been denied by the I.O. His attention was also drawn towards the statements of the other witnesses, but they are of not much importance, as they do not relate to the assault made on the deceased. He has denied the suggestion that the delay in lodging the FIR was due to the fact that the deceased was murdered by some unknown persons and he has also denied the suggestion to have made the faulty investigation. 14. The statements of the accused persons were recorded under Section 313 of the Cr.P.C. wherein, they have denied the evidence against them. The defence has also examined four witnesses in the case, who are DW-1 Halim Sheikh, DW-2 Md. Shabuddin and DW-3 Sahabuddin sheikh, who have came to depose that they had seen the deceased being assaulted by unknown person. DW-4 A.K. Rawani has come to depose that he was a driver of dumper, in which, there was a breakdown and the accused Akbar Sheikh was with him on the date of occurrence up to 3.00 PM, who was working as mechanic in the said dumper. On the basis of the evidence on record, the appellants have been convicted and sentenced by the Trial Court below as aforesaid. 15. Learned counsels for the appellants have submitted that the impugned Judgment of conviction and order of sentence passed by the Trial Court below, cannot be sustained in the eyes of law, in as much as, it has come in the evidence that the deceased was a veteran criminal and he was involved in criminal cases, and as such, his killing in the gang war by some unknown criminals cannot be ruled out, as has been deposed by three defence witnesses. It has been submitted by learned counsels that no charge has been framed against the accused persons for the offence under Section 27 of the Arms Act, Learned counsels further submitted that the prosecution case is only supported by interested witnesses, who are own family members of the deceased, either as eyewitnesses or even as hearsay witnesses, but no independent witness had come to support the prosecution case, even though it is a case of broad day light murder, near a commercial place, and must be seen by several persons. Even the I.O. has stated that he had not recorded the statement of any independent person, nor of the owner of the godown and the workers thereof. Learned counsels submitted that the enmity between the parties is admitted in the case and there is clear delay of about two hours in giving the fardbeyan, and the fardbeyan was recorded only after arrival of PW-7 Nisar Sheikh, who had admitted that the police was waiting for his arrival, and only thereafter, the fardbeyan was recorded. Learned counsels accordingly, submitted that ample time was taken by the informant’s side in cooking up the story for falsely implicating the accused persons, with whom there is admitted enmity. It is also submitted by learned counsels for the appellants that the blood stained soil etc., were not seized from the place of occurrence, which is also making the prosecution case doubtful. Learned counsels also submitted that there are vital contradictions in the statements of the witnesses, and specific allegations against some of the accused persons, have been made by the witnesses for the first time in the Court. It is also submitted that there is no recovery of weapon of the offence from any of the accused persons. Learned counsels accordingly, submitted that since the enmity is admitted between the parties and the occurrence is supported only by interested witnesses, the appellants were entitled at least to the benefits of doubt. 16. Learned counsel for the State on the other hand has opposed the prayer, submitting that the prosecution case is fully supported by three eyewitnesses of the occurrence, who are PW-6 Company Sheikh, PW-8 Md. Usman Sheikh and PW-10 Wahid Sheikh, the informant, who were with the deceased at the time of occurrence. These witnesses have given vivid details about the occurrence and PW-5 Munna Khatoon, the wife of the deceased and PW-7 Nishar Sheikh, the brother of the deceased have also stated that they were informed about the occurrence in the same manner as stated by the eyewitnesses, and they had seen the dead body with the injuries. It is submitted by learned counsel for the State, that the ocular evidence of these witnesses is fully corroborated by the medical evidence of PW-11 Dr. It is submitted by learned counsel for the State, that the ocular evidence of these witnesses is fully corroborated by the medical evidence of PW-11 Dr. S.K. Bijpuria and the post-mortem report proved by him, which show that the post-mortem examination was conducted by a Medical Board, consisting of three Doctors and the injuries caused by sharp cutting weapon as well as firearms were also found on the dead body of the deceased. The neck of the deceased was also found cut, cutting the underlying vital organs and these injuries were sufficient in the ordinary course of nature to cause the death. Learned counsel accordingly, submitted that the prosecution has been able to bring home charge against all the accused persons beyond all reasonable doubts, and there is no illegality in the impugned Judgment of conviction and Order of sentence passed by the Trial Court below. 17. Having heard learned counsels for both the sides and upon going through the record, we find that PW-6 Company Sheikh, PW-8 Md. Usman Sheikh and PW-10 Wahid Sheikh, the informant, are the eyewitnesses to the occurrence and they were accompanying the deceased to Madhupur market, at the time of occurrence. They have fully supported the prosecution case to the extent that while in their way to the market, they were waylaid by all the accused persons named in the FIR and Afzal Sheikh and the appellant Akbar Sheikh assaulted the deceased by firearm hitting him on his back, due to which, the deceased fell down. After the deceased fell down, the appellants Karu Sheikh, Kaila Sheikh, Sanaul Sheikh and Murla Sheikh, and the accused Azmal Sheikh pressed him on the ground, holding his hands, head and legs. The appellant Mansoor Sheikh scaled upon the chest of the deceased and upon the orders given by Afzal Sheikh, Mansoor assaulted him on neck by sword, killing him at the spot. Out of the accused persons, Afzal and Azmal Sheikh have not faced the trial. This manner of occurrence is supported by all the three eyewitnesses of the occurrence. PW-5 Munna Khatoon, the wife of the deceased and PW-7 Nishar Sheikh, the brother of the deceased were also informed about the occurrence in the same manner by the eyewitnesses to the occurrence. 18. This manner of occurrence is supported by all the three eyewitnesses of the occurrence. PW-5 Munna Khatoon, the wife of the deceased and PW-7 Nishar Sheikh, the brother of the deceased were also informed about the occurrence in the same manner by the eyewitnesses to the occurrence. 18. Though, it was not stated in the FIR that after the deceased fell down, repeated assaults by sharp cutting and hard and blunt weapons were also made, or that after the fatal assault made on neck, the deceased was again assaulted by firearm, but other sharp cutting injuries on the cheek and forehead, lacerated injuries on the right hand and bruises over the entire body, were also found on the dead body, and one firearm injury was found on the thigh of the deceased, in the post-mortem examination, as is proved by the medical evidence of PW-11 Dr. S.K. Bijpuria and the post-mortem report proved by him. The sharp cutting injuries on the cheek and forehead might have been caused at the time of inflicting the sharp cutting fatal injury on the neck of the deceased, which assaults might not have been noticed by the eyewitnesses, and the other injuries could be caused due to fall, or while the deceased was pressed to the ground by the accused persons. The firearm injury on the thigh has been attributed to the accused Safauddin Sheikh by PW-8 Md. Usman Sheikh. This witness and the informant PW-10 Wahid Sheikh have also deposed that the appellants Alimuddin Sheikh, Ahmad Sheikh, Anamul Sheikh and Burhwa Sheikh were also armed by revolver and bhujali, and they had restrained them. PW-6 Company Sheikh has deposed that the appellants Manjoor Sheikh, Nisar Sheikh, Labarwa Sheikh and Safauddin Sheikh apprehended him and Safauddin Sheikh assaulted him by butt of the pistol. However, the fact remains that these allegations against the appellants Alimuddin Sheikh, Ahmad Sheikh, Anamul Sheikh, Burhwa Sheikh, Manjoor Sheikh, Nisar Sheikh, Labarwa Sheikh and Safauddin Sheikh, have been made for the first time during the evidence of the witnesses PW-6 Company Sheikh, PW-8 Md. Usman Sheikh and the informant PW-10 Wahid Sheikh. Such statements were not given by these witnesses before the police, as is evident from the evidence of the I.O. PW-12 Sheo Gope, and these allegations are clearly the improvements made by these witnesses over their earlier versions. Usman Sheikh and the informant PW-10 Wahid Sheikh. Such statements were not given by these witnesses before the police, as is evident from the evidence of the I.O. PW-12 Sheo Gope, and these allegations are clearly the improvements made by these witnesses over their earlier versions. As such the evidence of these witnesses to the extent of specific allegations against the appellants Alimuddin Sheikh, Ahmad Sheikh, Anamul Sheikh, Burhwa Sheikh, Manjoor Sheikh, Nisar Sheikh, Labarwa Sheikh and Safauddin Sheikh, cannot be relied upon. 19. We find from the record that no charge has been framed against the accused persons for the offence under Section 27 of the Arms Act, nor the charge has been framed for the offence under Section 148 of the Indian Penal Code, or with the help of Section 149 of the Indian Penal Code. All the appellants, except the appellants Akbar Sheikh and Mansoor Sheikh, have been found guilty with the help of Section 34 of the Indian Penal Code. However, the fact remains that except the accused appellants who had taken active parts in either apprehending the deceased and holding him to the ground, or assaulting him, there is no evidence against the other appellants, though said to be present at the place and time of occurrence, to have shared the common intention of committing the murder. Simply on the evidence that these appellants were also accompanying the other accused persons, it cannot be presumed that they were also sharing the common intention of committing the murder. Though the appellants Manjoor Sheikh, Nisar Sheikh, Labarwa Sheikh and Safauddin Sheikh are said to have apprehended PW-6 Company Sheikh, and one of them also assaulted him, and there is allegation against the appellants Alimuddin Sheikh, Ahmad Sheikh, Anamul Sheikh and Burhwa Sheikh, to be armed and to have wrongfully restrained PW-8 Md. Usman Sheikh and the informant PW-10 Wahid Sheikh, but these appellants have neither been charged for such offences, nor as held earlier, the evidences of these witnesses, to that extent, be relied upon. 20. Usman Sheikh and the informant PW-10 Wahid Sheikh, but these appellants have neither been charged for such offences, nor as held earlier, the evidences of these witnesses, to that extent, be relied upon. 20. Though, it is a fact that there is delay of about two hours in recording the fardbeyan of the informant, which was recorded only after the arrival of PW-7 Nishar Sheikh, but the evidence of the I.O. PW-12 Sheo Gope shows that there was some resentment amongst the family members, who agreed to give the fardbeyan only after some counseling by the police officer, or they were waiting for PW-7 Nishar Sheikh to arrive at the place of occurrence, as claimed by him. We are of the considered view that this delay is not fatal to the entire prosecution case and it cannot be said that a totally false story has been cooked by the prosecution. We also find that non-seizure of the blood stained soil from the place of occurrence, or non-recovery of the weapons of offence from the accused persons are also not fatal to the prosecution case. Since the manner of occurrence relating to the murder of the deceased, as disclosed by the eyewitnesses, is fully corroborated by the medical evidence of PW-11 Dr. S.K. Bijpuria and the post-mortem report proved by him, their evidence relating to the manner of occurrence, cannot be fully discarded, simply because there may be some discrepancies in their evidence, or due to the fact that they are interested witnesses. We further find from the record that the offence has been committed in a very brutal manner, in which in all nine injuries, were found on the dead body of the deceased, including on his head and neck, cutting all the vital organs in the neck, as well as the firearm injuries, which were sufficient in the ordinary course of nature to have caused the death. As such no leniency can be shown in favour of the accused persons, against whom there is evidence to have taken active parts in committing the murder of the deceased. 21. As such no leniency can be shown in favour of the accused persons, against whom there is evidence to have taken active parts in committing the murder of the deceased. 21. We are of the considered view that on the basis of the evidence on record, the prosecution has been able to bring home charge against the appellants Akbar Sheikh and Mansoor Sheikh, for the offence under Section 302 of the Indian Penal Code and against the appellants Karu Sheikh, Kaila Sheikh, Sanaul Sheikh and Murla Sheikh, for the offence under Sections 302/34 of the Indian Penal Code, beyond all reasonable doubts, and they have been rightly found guilty, convicted and sentenced by the Trial Court below. As such, the impugned Judgment of conviction and Order of sentence, passed as against them, by the Trial Court below, suffer with no illegality, worth any interference by this Court. 22. At the same time we find that the prosecution has failed to bring home charge for the offence under Sections 302/34 of the Indian Penal Code, against the appellants Alimuddin Sheikh, Ahmad Sheikh, Anamul Sheikh, Burhwa Sheikh, Manjoor Sheikh, Nisar Sheikh, Labarwa Sheikh and Safauddin Sheikh, beyond all reasonable doubts, and the impugned Judgment of conviction and Order of sentence, passed as against them, by the Trial Court below, cannot be sustained in the eyes of law and are fit to be set aside, to that extent. 23. For the foregoing reasons, the impugned Judgment of conviction 5.02.2008 and Order of sentence dated 12.02.2008, passed by the learned Additional Sessions Judge, FTC-IV, Deoghar, in S.C. No. 105 of 2006, convicting and sentencing the appellants Akbar Sheikh @ Md. Akbar Sheikh and Mansoor Sheikh for the offence under Section 302 of the Indian Penal Code, and the appellants Karu Sheikh, Kaila Sheikh, Murla Sheikh and Sanaul Sheikh, for the offence under Sections 302/34 of the Indian Penal Code, are hereby, affirmed. The appellant Mansoor Sheikh is already in custody, undergoing the sentence. The other appellants Akbar Sheikh @ Md. Akbar Sheikh, Karu Sheikh, Kaila Sheikh, Murla Sheikh and Sanaul Sheikh, are on bail. Their bail bonds, are hereby, cancelled and they are directed to surrender in the Trial Court below forthwith, for undergoing the sentence. The Trial Court below is also directed to issue processes forthwith, compelling the production/surrender of these appellants in the Court below, for serving out the sentence. 24. Their bail bonds, are hereby, cancelled and they are directed to surrender in the Trial Court below forthwith, for undergoing the sentence. The Trial Court below is also directed to issue processes forthwith, compelling the production/surrender of these appellants in the Court below, for serving out the sentence. 24. For the reasons discussed above, the aforesaid Judgment of conviction and Order of sentence, are hereby, set aside, so far as they relate to the appellants Manjoor Sheikh, Ahmad Sheikh, Nisar Sheikh @ Md. Nisar Sheikh, Safauddin Sheikh, Burhwa Sheikh, Almuddin Sheikh, Labarwa Sheikh and Anamul Sheikh @ Haque. Consequently, these appellants are given the benefits of doubt and are acquitted of the charge. These appellants are on bail, and they are discharged from the liabilities of their respective bail bonds. 25. In the result, we do not find any merits in Cr. Appeal (DB) No. 374 of 2008, Cr. Appeal (DB) No. 377 of 2008, Cr. Appeal (DB) No. 391 of 2008 and Cr. Appeal (DB) No. 443 of 2008 and all these four appeals are accordingly, dismissed. Whereas, Cr. Appeal (DB) No. 216 of 2008 stands allowed. Let the Lower Court Records be sent back to the Court concerned forthwith, along with a copy of this Judgment.