ORDER : 1. The appellants are aggrieved by the common judgment of conviction dated 22.7.2005 and order of sentence dated 23.7.2005, passed by the Additional Sessions Judge. FTC III. Gumla. in S.T. No. 216 of 2003 and S.T. No. 217 of 2004. whereby the appellants have been found guilty and convicted for the offence under Section 302/34 of the Indian Penal Code for committing murder of Bhauwa Kharia. Upon hearing on the point of sentence the appellants have been sentenced to undergo RI for life and fine of Rs. 2,000/- each and on default of payment of fine it was ordered that they will further undergo SI for six months. 2. It is pertinent to mention here that m this case charges were framed under three different heads against the accused persons of the case. In this case first charge-sheet was submitted on 22.9.2002 by the police against the 5 accused persons vide charge-sheet No. 58 of 2002 and investigation continued in respect of the rest of the accused persons and the subsequently charge-sheet No. 38 of 2004 was submitted on 30.6.2004. Charge was framed against the appellant Nos. 1 and 3 of this appeal along with three other accused persons in S.T. No. 216 of 2003 of the case on 24.3.2004. Charge was framed against the appellants No.2, 4 and 13 others in S.T. No. 217 of 2004 on 23.9.2004. But no charge has been framed against the appellant No.2 though his name appears as an accused in the judgment. However, charge has been framed against one Duka Khadia in S.T. No. 216 of 2003, whose name does not appear in the judgment. Further, it is found that there were two sessions trials bearing S.T. No. 216 of 2003 and S.T. No. 217 of 2004. All the 9 witnesses have been examined by the prosecution in S.T. No. 216 of 2003. PWs 1 to 8 of the case have been examined between 18.5.2004 to 28.7.2004 i.e. before, framing the charge against the appellant No.4 Hazari Kharia but later on vide order dated 16.11.2004 the original filed i.e. S.T. No. 216 of 2003 and S.T. No. 217 of 2004 have been amalgamated. 3. It is also pertinent to mention here that in this case there are two persons named as Ratia Kharia. One is Ratia Kharia son of Hazari Kharia and the, other is Ratia Kharia son of Somra Kharia. 3. It is also pertinent to mention here that in this case there are two persons named as Ratia Kharia. One is Ratia Kharia son of Hazari Kharia and the, other is Ratia Kharia son of Somra Kharia. Charge has been framed against Ratia Kharia son of Hazra Kharia in S.T. No. 216 of 2003 dated 24.3.2004 and in S.T. No. 217 of 2004 charge has been framed against Ratia Kharia son of Somra Kharia on 23.9.2004. Ratia Kharia son of Hazra Kharia is the appellant No.3 in this appeal. Ratia Kharia son of Somra Kharia is not a party in this appeal. 4. The prosecution case was instituted on the basis of the fardbeyan of informant and injured Sukra Indwar (PW 8) the son of the deceased Bhauwa Kharia. recorded on 22.6.2002. The informant has stated that the occurrence took place on 21.6.2002 at about 4.00 p.m. On that date he had gone to village Tengra Jam Toli to bring his father. At the time of incident his father was sitting with Sunil Indwar. Chautha Kharia. Sukra Indwar and Smt. Payo Devi. The brother of the informant came outside the house of urinate. He saw Ratia Kharia was coming armed with baluwa along with Hazari. Thuka. Jarku. Bandhu and Lodro all are armed with lathi and sticks. Ratia Kharia asked informant about his father and gave a blow. of baluwa on him. He sustained baluwa injury on his hand and left scapula. All the accused persons entered into the house and dragged the deceased to the courtyard of the house. Hazari gave a tangi blow on the father of the informant due to which he fell down on the ground. Then Ratia Kharia gave 2-3 baluwa blows on the throat of the father of the informant and the father of the informant died immediately. On the basis of fardbeyan (Ext. 7) of the informant Basia P.S. Case No. 37 of 2002 corresponding to G.R. No. 357 of 2002 was instituted for the offence under Section 302/149 of the Indian Penal Code and further under Section 307 of the Indian Penal Code and investigation was taken up. After investigation the police submitted two charge-sheets against the accused persons, as already indicated above. 5. After investigation the police submitted two charge-sheets against the accused persons, as already indicated above. 5. Upon commitment of the case to the Court of Session, three separate charges were framed against the accused persons for the offence under Sections 302, 149 and 307 of the Indian Penal Code. Upon the accused persons pleading not guilty and claiming to be tried, they were put to trial. In course of trial, the prosecution has examined 9 witnesses in this case. IO has not been examined in this case. 6. PW 8 Shukra Indwar, is the informant of the case and son of Bhauwa Indwar. This witness has stated that the incident took place two years ago On 21.6.2002 on Thursday at about 4.00 p.m. he had gone to the village Tengra Jaam tola to bring his father. At the time of occurrence Sunil Indwar, Chautha Kharia, Sukra Indwar and Smt. Payo Devi and his father were present at the place of occurrence. At that time, Sunil Indwar came out of the house. He saw that Ratia Kharia armed with baluwa, along with Hazari, Thuka, Jarku, Bandhu and Lodro, armed with 'lathi and stick, were coming to them. When the informant came out of the house, the accused Ratia Kharia asked him about his father and gave a baluwa blow on his hand and on scapula. Hazari, Jarku and Thuka dragged his father towards the courtyard. Hazari gave a tangi blow on Bhauwa Kharia due to which he fell down then Ratia Kharia gave 2-3 blows on the throat of the deceased due to which he immediately died. Police came there and fardbeyan of PW 8 was recorded, upon which, after finding the same to be true he put his signature. PW 8 identified his signature on the fardbeyan which was marked as Ext. 5. In his cross-examination, this witness has stated that he had gone to Tengra Jaam Toli with one Sunil lndwar. In his fardbeyan he had not stated that there was no quarrel and fight between both the parties. He has stated that Sukra Indwar also sustained tangi injury given by Thuka. He has also stated that he had also sustained baluwa injury. Police came to the place of occurrence on the next day and his brother Vijay Indwar was with police. The informant has admitted that there were land dispute between the parties. 7. He has stated that Sukra Indwar also sustained tangi injury given by Thuka. He has also stated that he had also sustained baluwa injury. Police came to the place of occurrence on the next day and his brother Vijay Indwar was with police. The informant has admitted that there were land dispute between the parties. 7. PW 5 Sunil Indwar, is the nephews of the deceased Bhauwa Kharia. He stated that the deceased Bhauwa Kharia had gone to his brother-in-law (wife's sister's husband) Chautha Kharia at village Tengra Jaam Toli. Then the PW 5 along with PW 8 also went to the house of Chautha Kharia. The occurrence took place at the house of Chautha Kharia. Hazari, Jarku, Ratia, Lodhero assaulted Bhauwa. Ratia Kharia assaulted the deceased with baluwa and Jarku assaulted the deceased with tangi and the remaining accused assaulted the deceased with lathi and the deceased died. He has identified the accused persons in the Court. In his cross-examination this witness has stated that the accused persons had also attempted to assault him but somehow he saved himself. On that day, they had drunk Haria (liquor made of rice). He also stated that the accused persons are relatives of Chautha. The houses of the accused persons are situated within the radius of half kilo metre from the house of Chautha Kharia. All the accused persons came armed with weapons. He also stated in his cross-examination that he told police that a blow of baluwa was also given to him by Ratia Kharia. When the deceased died he fled away from the place of occurrence. He also stated in his cross-examination that Ratia had cut the throat of the deceased 2-3 times and Hazari gave a tangi blow on the waist of the deceased. At 9 O'clock in the night he went to police station and informed the police about the incident. In the morning he came with the police. Bhauwa had no enmity with the accused persons but Chautha has land dispute with the accused persons. He has denied that the accused persons have falsely been implicated in the case. He has denied the suggestion of giving false evidence. 8. PW 2 Chautha Kharia, is the saadhu (brother-in-law) of the deceased. He stated that Bhauwa Kharia came to his home. He has denied that the accused persons have falsely been implicated in the case. He has denied the suggestion of giving false evidence. 8. PW 2 Chautha Kharia, is the saadhu (brother-in-law) of the deceased. He stated that Bhauwa Kharia came to his home. Ratia, Thuka, Jarku, Hazri Bandhana, Lodherao, Natul, Somra and other family members of the accused persons came to his house armed with weapons. Ratia was armed with baluwa, Hazan and Thuka armed with tangi, Bandhana, Thuka and Jarku were armed with lathi. Jarku, Thuka and Hazan dragged Bhauwa Khana to the courtyard from the house. Hazan assaulted the deceased with tangi on his forehead and then all the accused started beating the deceased with lathi, tangi and danda. Ratia assaulted Bhauwa with baluwa. Bhauwa died at the spot. Police came on the second day of the occurrence and prepared inquest report of the dead-body and he put his signature thereon. He identified his signature on the inquest report which was marked as Ext. 1. He identified the accused Ratia, Lordo, Jarku, Thuka. In his cross-examination he stated that Bhauwa had no enmity. with the accused persons but Hazan had land dispute with Chautha (PW 2). At the time of occurrence the PW 2 with his wife, one Sukra Indwar, Bandhana Pahan and his wife and Sukra, who is the son of the deceased, were present in the house. At the time of occurrence 15-20 persons came to his house they were Thurki, Teri, Mangri, Sanichari, Ratia, Yamuna, Somra, Sukra etc. they directly entered into the house of PW 2. Jarku assaulted the deceased with tangi. Thuka also assaulted by tangi on the fingers of left hand of Bhuwa. Lodhero gave 2-3 lathis blow and Bandhana also gave 2-4 lathi blows on the deceased. 15 accused persons assaulted the deceased. PW 2 Chautha Kharia's sister Bandhani Indwar was living with Ratia without solemnizing marriage but there was no dispute on that. At the time of occurrence, people gathered but due to fear none of them stayed there. 9. PW 1 Payo Indwar, is the sister-in-law of the deceased. She stated that two years ago on a Friday the deceased was killed at about 3.00 p.m. by 10-15 armed persons. Hazan Khana, Jarku Kharia, Ratia Khana and Thuka Kharia were present in the Court room and she identified them in the Court. 9. PW 1 Payo Indwar, is the sister-in-law of the deceased. She stated that two years ago on a Friday the deceased was killed at about 3.00 p.m. by 10-15 armed persons. Hazan Khana, Jarku Kharia, Ratia Khana and Thuka Kharia were present in the Court room and she identified them in the Court. Ratia Kharia was armed with baluwa, Jarku Khana, Hazali Khalia and Thuka Khalia were armed with tangi Hazali Kharia dragged the deceased out of the house and the other accused persons killed him by cutting his neck. Bhauwa fell down at the place of occurrence and accused persons were beating him with lathi and danda. In her cross-examination PW 1 stated that Hazali Khalia is not present in the Court. Hazali Khalia had given two blows on the waist of the deceased and Ratia had beaten the deceased by baluwa on his neck but she could not count the numbers of blow. There were no interaction between her and the accused persons duling the incident. Police recorded her statement at home. She had not gone to Police Station. 10. PW 3 Sukra Indwar son of Pandu Indwar. He stated that the incident took place two years ago on a Friday at about 3.00 p.m. Bhauwa Indwar was guest of Chautha Indwar. Hazali, Jarku, Ratia, Thuka, Natul along with other accused persons had came to the house of Bandhana Pahan. Hazari was armed with lathi, Ratia armed with baluwa, Thuka armed with tangi, Jarku armed with lathi Hazali dragged Bhauwa to the courtyard of the house "and gave a blow of lathi on his head and he fell down then all of them beat Bhauwa with lathi Bhauwa died because Ratia killed him with baluwa. Thuka gave a tangi blow on the shoulder of the PW-3. PW-3 identified the accused persons. Police prepared inquest report of the dead-body on which PW 3 identified his signature which was marked at Ext. 1/1. Police recorded fardbeyan of Sukra son of the deceased and he identified his signature on the fardbeyan which was marked as Ext. 2. In his cross-examination PW 3 stated that Thuka Khalia is his son-in-law and Chautha Khalia his cousin (from maternal side). Bhauwa Khalia (deceased) came to the house of Chautha Khalia. Bhauwa Khalia had no enmity with accused persons. 2. In his cross-examination PW 3 stated that Thuka Khalia is his son-in-law and Chautha Khalia his cousin (from maternal side). Bhauwa Khalia (deceased) came to the house of Chautha Khalia. Bhauwa Khalia had no enmity with accused persons. Ratia and Hazali had enmity with the Chautha and PW 3 because Ratia and sister of the Chautha were living together without. solemnizing marriage. But it hardly mattered to them. He further stated that on the day of occurrence about 23 persons came at the dhaba, which was situated outside of the house of the Chautha, and started beating Bhauwa with lathi on his hand and neck. This witness was also beaten by the accused persons. The son of the deceased was also beaten by baluwa. Vijay another son of the deceased went to police station to inform police. PW 3 further stated that the police came next day of the occurrence and recorded his statement and the statement of Sukra, son of the deceased-the informant. 11. PW 4 Situ Indwar is the son of Balu Indwar. He stated that deceased was his maternal uncle. Sunil Indwar came to his village and informed him that Sunil’s father was killed. But Sunil did not state name of the accused. PW 3 has stated that police recorded his statement but he did not tell police about the land dispute between Chautha Kharia and Hazari Kharia. PW 4 was declared hostile. 12. PW 6 Dr. Shiva Kant Sharma has stated that he examined. Thopa Kharia on 22.6.2002 and found the following injury : (i) Lacerated scalp injury vertex area size 2" x 1/2" x 1/6" age of injury was approximately 30 hours and. caused by hard object hit Nature of injury was simple. This injury may be possible by stick, lathi etc. On 22.6.2002 he also examined. Jarku Kharia and found following injury : (i) Lacerated scalp injury at vertex area of size 3"x1/2" x 1/6". Age of injury was approximately 30 hours caused by hard object hit. Nature of injury was simple. This injury may be possible by stick. The injury reports were marked exhibit as Exts. 3 and 3/1 respectively. In his cross-examination he stated that both the injured were brought to the. hospital by police and he could not state as to whether the patients were admitted to the hospital or not. 13. PW 7 Dr. This injury may be possible by stick. The injury reports were marked exhibit as Exts. 3 and 3/1 respectively. In his cross-examination he stated that both the injured were brought to the. hospital by police and he could not state as to whether the patients were admitted to the hospital or not. 13. PW 7 Dr. Kameshwar Nath Tiwari is the Doctor who conducted the post-mortem on the dead-body of the deceased Bhauwa Kharia on 22.6.2002 at 12.30. He found the following injuries on the dead-body of the deceased :- (i) Incised wound 6" x 2" x 6" deep over the left side of the neck. All the major vessels, body of the forth cervical vertebra except 'muscles and skin of the right side is cut. (ii) Incised wound 4" x 1" x muscle deep present over mid forehead.' (iii) Incised wound 4" x 1" x muscle deep present between index and ring finger of the left palm. (iv) Incised wound 4" x 1" x muscle deep present over the right temporal area of skull. On dissection-he found that the skull bone was normal, brain and meanings were pale, both chambers of the heart were empty; both lungs were intact and pale. Stomach was empty. Bladder contained about 10 cc of residual urine. All the injuries were ante-mortem in nature and caused by sharp cutting substance. Death is caused by hemorrhage and shock due to injury No.1. Time elapsed since death from post-mortem examination is within 24 to 72 hours. He has identified the post-mortem report to be in his pen and under his signature which was marked as Ext. 4. In his cross-examination this witness has stated that only one blow was given on the neck of the deceased. Injury No. 1 depends upon the force used by the criminal. No injury caused by hard and blunt substance was found on the dead-body. 14. PW 9 Shri Shyamanand Mandal is the SI of the Basia Police Station. He has stated that the formal FIR that was lodged on 22.6.2002, was in the pen of Basudeo Toppo and under the signature of Rabindra Kumar-In-charge of Basia P.S. He identified the signature of Rabindra Kumar on FIR which was marked as Ext. 6. 14. PW 9 Shri Shyamanand Mandal is the SI of the Basia Police Station. He has stated that the formal FIR that was lodged on 22.6.2002, was in the pen of Basudeo Toppo and under the signature of Rabindra Kumar-In-charge of Basia P.S. He identified the signature of Rabindra Kumar on FIR which was marked as Ext. 6. He further stated that the fardbeyan was recorded in the pen and signature of the then In-charge Basia P.S.-Rabindra Kumar and he identified the signature of Rabindra Kumar on the fardbeyan which was marked as Ext. 7. He also identified the inquest report of the deceased to be in the pen and under the signature of the then In-charge of Basia P.S.-Rabindra Kumar which was marked as Ext. 8. PW 9 received charge of investigation from Rabindra Kumar. This witness has tagged the post-mortem report and injury report with the case diary. After getting sufficient evidence against the accused Ratia Kharia. Lodhero Kharia. Jarku Kharia. Thuka Kharia and Soma Kharia this witness submitted charge-sheet No. 58/2. On his transfer of this witness on 4.5.2003 handed over the investigation of this case of Rabindra Kumar Singh. This witness did not go to the place of occurrence. This witness in his cross-examination has. stated that he has not recorded evidence of any witness and also not arrested any accused. He has identified the writing and signature of the Investigating Officer who earlier investigated the case. 15. The statement of the accused persons were recorded under Section 313 of the Cr PC, wherein they denied the circumstances in evidence appearing against them. 16. Learned counsel for the appellants submitted that the impugned judgment of conviction and order of sentence are absolutely illegal and cannot be sustained in the eyes of law and the defence has been prejudiced by non-examination of the main IO of the case. It is further submitted that no portion of the material evidence having being recorded in presence of the appellant No. 4 Hazari Kharia the same cannot be used against him. The learned counsel further submitted that there being no legally admissible material evidence in the record against the appellant No.4 Hazari Kharia this is a fit case where the appellant Hazari Kharia be acquitted at least by giving him the benefit of doubt. The learned counsel further submitted that there being no legally admissible material evidence in the record against the appellant No.4 Hazari Kharia this is a fit case where the appellant Hazari Kharia be acquitted at least by giving him the benefit of doubt. The learned counsel further submitted that no charge has been framed against the appellant No.2 Thuka Kharia @ Thupa Kharia. Though charge has been framed against the accused namely Duka Kharia but by no stretch of imagination it can be said that Thuka Kharia @ Thupa Kharia and Duka Kharia is one and the same person. hence in the absence of a legally valid and proper charge the appellant No. 2 Thuka Kharia @ Thupa Kharia be also acquitted by giving him the benefit of doubt. So far as the appellant No. 3 is concerned, it is submitted by the learned counsel for the appellant that admittedly there are two accused persons in the case namely Ratia Kharia of course with different parentage but as in their evidence none of the material prosecution witnesses have stated the parentage of Ratia Kharia they are deposing about, hence it is submitted that the appellant No. 3 Ratia Kharia be also acquitted by giving him the benefit of doubt. In respect of the appellant No. 1 Jarku Kharia. it was submitted that there is major contradiction in the testimonies of the prosecution witnesses as to the role played by him during the occurrence as well as the testimony of the ocular witnesses and the medical evidence inasmuch as though some of the witnesses have stated that he assaulted with tangi others have categorically stated that he was holding a Lathi and there is no injury caused by hard and blunt substance found on the dead-body of the deceased rather only four numbers of incised wound was found on the dead-body. hence it was submitted that the appellant No. 1 Jarku Khadia be also acquitted of the charges by giving him the benefit of doubts. The learned counsel for the appellant further submitted that the impugned judgment of conviction and order of sentence be set aside and the appellant be acquitted of all the charges. 17. Learned Addl. Public Prosecutor for the State, on the other hand, defended the impugned judgment of conviction and order of sentence and submitted that the prosecution witnesses have fully supported the case of the prosecution. 17. Learned Addl. Public Prosecutor for the State, on the other hand, defended the impugned judgment of conviction and order of sentence and submitted that the prosecution witnesses have fully supported the case of the prosecution. The PWs 1, 2, 3, 5 and 8 are the eye-witnesses of the occurrence and the PW 8 is also an injured witness and all of them have supported the case of the prosecution. The oral testimony of these witnesses are corroborated by the medical evidence which has come through the doctor-PW 7 hence the prosecution has proved its case beyond reasonable doubt. It is further submitted that the Court below has rightly convicted and sentenced the appellants for the offence under Section 302 of the Indian Penal Code. Learned counsel for the State, accordingly, submitted that there being no illegality in the impugned judgment of conviction and order of sentence, passed by the trial Court below, this appeal being without any merit be dismissed. 18. Having heard learned counsels for both the sides and upon going through the records, we find that the learned trial Court has conducted the trial most casually and perfunctory manner. We find. force in the submission of the learned counsel for the appellants that no charge has been framed against the appellant No. 2 Thuka Kharia @ Thupa Kharia and there is no material or explanation forthcoming to suggest that Thuka Kharia @ Thupa Kharia and Duka Kharia is one and the same person. So in the absence of any charge having been framed against the appellant No. 2 Thuka Kharia @ Thupa Kharia, his conviction and sentence for the offence punishable under Section 302/34 of the Indian Penal Code as made by impugned judgment of conviction and order of sentence is set aside. 19. Similarly, we also find force in the submission of the learned counsel for the appellants that the PWs 1 to 8 of the trial were examined before framing of charge against Hazari Kharia on 23.9.2004. The appellant No. 4 Hazari Kharia never got the opportunity to cross-examine any of the said witnesses nor he was present during the examination of the witnesses in Court, hence the evidence put forth by the said witnesses cannot be used against the appellant No. 4 Hazari Kharia. The appellant No. 4 Hazari Kharia never got the opportunity to cross-examine any of the said witnesses nor he was present during the examination of the witnesses in Court, hence the evidence put forth by the said witnesses cannot be used against the appellant No. 4 Hazari Kharia. So, after excluding the testimony of PWs 1 to 8 from consideration because of the aforesaid reasons we found that the PW 9 is a part 10 of the case and he has not stated anything to implicate the appellant No.4 Hazari Kharia in any manner in this case. Hence, the conviction and sentence of the appellant No. 4 Hazari Kharia for the offence punishable under Section 302/34 of the Indian Penal Code as made by impugned judgment of conviction and order of sentence is set aside. 20. So far as the contention of the appellants regarding prejudice caused to them by the non-examination of the Investigating Officer is concerned it is a settled principle of law that non-examination of the Investigating Officer per se is not fatal to the case of the prosecution, as has been held by the Hon'ble Supreme Court of India in paragraph 18 of the case of Lahu Kamlakar Patil v. State of Maharashtra, (2013) 6 SCC 417 , at page 424 as under: "It is an accepted principle that non-examination of the Investigating Officer is not fatal to the prosecution case. In Behari Prasad v. State of Bihar, (1996) 2 SCC 312, this Court has stated that non-examination of the Investigating Officer is not fatal to the prosecution case, especially, when no prejudice is likely to be suffered by the accused. In Bahadur Naik v. State of Bihar, 2000 (2) East Cr C 777 (Pat) : (2000) 9 SCC 153 , it has been opined that when no material contradictions have been brought out, then non-examination of the Investigating Officer as a witness for the prosecution is of no consequence and under such circumstances, no prejudice is caused to the accused......" (Emphasis given) In this case there is no material contradiction between the statement of. 1 the witnesses vis-a-vis their statement recorded by police under Section 161 of the Code of Criminal Procedure, as attention of the witnesses vis-a-vis their statement recorded by police has not been drawn in their respective cross-examination on any material particulars of their testimony. 1 the witnesses vis-a-vis their statement recorded by police under Section 161 of the Code of Criminal Procedure, as attention of the witnesses vis-a-vis their statement recorded by police has not been drawn in their respective cross-examination on any material particulars of their testimony. There is sufficient evidence on record to show that the place of occurrence is the house of the PW 2 and the murder took place is his courtyard. The appellants also could not show any prejudice caused to them because of non-examination of the Investigating Officer. Under such circumstances we are of the considered opinion that in this case the non-examination of the Investigating Officer will not be fatal for the prosecution. 21. So far as the contention of the appellant No. 3 Ratia Kharia that there are two accused persons facing trial in this case namely Ratia Kharia with different parentage and as in their evidence none of the material prosecution witnesses have stated the parentage of the Ratia Kharia they are deposing about, hence the appellant No. 3 Ratia Kharia be also acquitted by giving him the benefit of doubt is concerned, we have already held while considering the contention of the appellant No. 4 in this appeal that the testimony of the PW 1 to PW 8 cannot be used against the accused persons of the case against whom charges were framed on 24.9.2004, as the PW 1 to PW 8 were examined in Court prior to 24.9.2004. As already indicated in paragraph. 3 of this judgment charge has been framed against Ratia Kharia son of Hazari Kharia in S.T. No. 216 of 2003 dated 24.3.2004 and in S.T. No. 217 of 2004 charge has been framed against Ratia Kharia son of Somra Kharia on 23.9.2004. It is obvious when these witnesses were examined in Court only Ratia Khariason of Hazari Kharia in S.T. No. 216 of 2003 was facing the trial. So, the corollary is that these witnesses have referred to Ratia Kharia son of Hazari Kharia who is the appellant No.3 as Ratia Kharia in their deposition. Hence, this contention of the appellant No.3 does not have any merit. So, the corollary is that these witnesses have referred to Ratia Kharia son of Hazari Kharia who is the appellant No.3 as Ratia Kharia in their deposition. Hence, this contention of the appellant No.3 does not have any merit. The material eye-witnesses of the occurrence being PWs 1, 2, 3, 5 and 8 have categorically stated about the appellant No. 3 Ratia Kharia along with co-accused persons having assaulted the deceased on his neck with a tangi (axe) in a brutal manner by almost severing the neck from the body except muscles and skin of the right side. They are the natural witnesses of the occurrence. Nothing has been elicited in their cross-examination to discredit or disbelieve their testimony. Though charge was framed against the accused persons for the offence punishable under Section 149 of the IPC but as we have acquitted the appellants No. 2 and 4 of the charges hence the total number of convict comes to less than five. It is a settled principle of law that under such circumstances since the evidence in the record establishes that in furtherance of their Common intention the accused persons committed the murder, the accused persons can be convicted for the offence punishable under Section 302 read with Section 34 of the Indian Penal Code, as has been held in paragraphs 18 and 19 in the case of Dhari and others v. State of U.P., AIR 2013 SC 308 . "18. Undoubtedly, this Court has categorically held that in such a situation, a conviction cannot be made with the aid of Section 149, IPC, particularly when, upon the acquittal of some of the accused, the total number of accused stands reduced to less than 5, and it is not the case of the prosecution that there are in fact, some other accused who have not yet been put to trial. However, it is also a settled legal proposition that in such a fact-situation, the High Court could most certainly have convicted the appellants, under Section 302 read with Section 34, IPC. 19. However, it is also a settled legal proposition that in such a fact-situation, the High Court could most certainly have convicted the appellants, under Section 302 read with Section 34, IPC. 19. In Nethala Pothuraju and others v. State of A.P., AIR 1991 SC 2214 : 1991 AIR SCW 2476, this Court while considering a similar case, held that the non-applicability of Section 149, IPC is no bar for the purpose of convicting the accused under Section 302 read with Section 34, IPC, if the evidence discloses the commission of an offence, in furtherance of the common intention of such accused. This is because, both, Sections 149 and 34, IPC deal with a group of persons who become liable to be punished as sharers in the commission of an offence. Thus, in a case where the prosecution fails to prove that the number of members of an unlawful assembly are 5 or more, the Court can simply convict the guilty persons with the aid of Section 34, IPC, provided that there is adequate evidence on record to show that such accused shared a common intention to commit the crime in question. (Emphasis given) A similar view has been re-iterated in Jivan Lal and others v. State of M.P., (1997) 9 SCC 119 ; and Hamlet alias Sasi and others v. State of Kerala, 2004 (1) East Cr C 162 (SC) : AIR 2003 SC 3682 : 2003 AIR SCW 4178. (See also Willie (William) Slaney v. State of M.P., AIR 1956 SC 116 ; Fakhruddin v. State of M.P., AIR 1967 SC 1326 ; Gurpreet Singh v. State of Punjab, 2006 (1) East Cr C 235 (SC) : AIR 2006 SC 191 : 2005 AIR SCW 5700; Sanichar Sahni v. State of Bihar, AIR 2010 SC 3786 ; S. Ganesan v. Rama Raghuraman and others, 2011 (1) East Cr C 233 (SC) : (2011) 2 SCC 83 : AIR 2011 SC (Cri) 419; and Darbara Singh v. State of Punjab, 2012 (4) East Cr C 210 (SC) : 2012 (8) JT (SC) 530)." Because of the discussions made above we hold that the evidence on the record' is sufficient to convict the appellant No. 3 as Ratia Kharia of the offence punishable under Section 302 read with 34 of the Indian Penal Code and accordingly we confirm his conviction and sentence as made by the learned Court below. The appellant No. 3 as Ratia Kharia is in custody. 22. So far as the appellant No. 1 Jarku Kharia is concerned, the material eye-witnesses being PWs 1, 2, 3, 5 and 8 have categorically stated about the appellant No. 1 Jarku Kharia. along with other accused persons dragged the deceased Bhauwa Kharia out from the house of the PW 2 to the courtyard and assaulted him after 'the appellant No.4 and appellant No. 3 assaulted him. Some of the witnesses' have stated that he assaulted with tangi (axe) while others have stated that he assaulted with lathi. Similarly, some witnesses have stated that he was armed with tangi while others have stated that he was armed with lathi But the act of his along with others dragging the deceased from the house of the PW 2 to the courtyard is well proved. So we are of the considered view that the evidence on the record is sufficient to convict the appellant No. 1 Jarku Kharia for the offence punishable under Section 302 read with Section 34 of the Indian Penal Code. The appellant No. 1 Jarku Kharia is on bail. In view of the confirmation of his conviction and sentence. bail granted to him vide order dated 18.4.2007 in IA No: 538 of 2007 is cancelled. The learned Court below is directed to take all coercive steps for his production/appearance of the appellant No. 1 Jarku Kharia for undergoing the remaining part of his sentence. ' 23. Accordingly the appeal is allowed in part. Judgment of conviction dated 22.7.2005 and order of sentence dated 23.7.2005 passed by the Additional Sessions Judge, Fast Track Court-III, Gumla, in S.T. No. 216 of 2003 and S.T. No. 217 of 2004 are confirmed so far as it relates to the appellant No. 1 Jarku Kharia and the appellant No. 3 Ratia Kharia. But the conviction and sentence of the appellant No. 2 Thuka Kharia @ Thupa Kharia and the appellant No. 4 Hazari Kharia are set aside and as they are on bail, they are discharged from the liabilities of their bail bonds. 24. Let the Lower Court Records he sent back to the Court concerned forthwith, along with a copy this judgment. Appeal partly allowed.