JUDGMENT : H.C. MISHRA, J. 1. Heard learned counsel for the appellants and the learned counsel for the State as also learned counsel for the informant. 2. At the very outset it may be stated that one of the appellants, viz., Rajmani Prasad @ Rajmuni Prasad died during the pendency of this appeal, and accordingly, his name was deleted from the array of the appellants by order dated 12.02.2018. 3. The appellants are aggrieved by the Judgment of conviction dated 24.07.2007 and Order of sentence dated 25.07.2007, passed by the learned Sessions Judge, Palamau at Daltonganj, in Sessions Trial No. 160 of 2005, whereby, all the appellants have been convicted for the offence under Sections 302 / 34 of the Indian Penal Code and the appellant, Sheo Pujan Prasad is also convicted for the offence under Section 27 of the Arms Act. Upon hearing on the point of sentence, all the appellants have been sentenced to undergo R.I. for life for the offence under Sections 302 / 34 of the Indian Penal Code, whereas the appellant, Sheo Pujan Prasad has also been sentenced to undergo R.I for five years for the offence under Section 27 of the Arms Act, and both the sentences were directed to run concurrently. 4. The prosecution case was instituted on the basis of the fardbeyan of the informant, Krishna Sao, the father of the deceased, Babulal Prasad @ Andu, recorded on 27.02.2005 at 20:30 hours at Satbarwa Bazar, P.S. Palamu Town (Satbarwa O.P), District Palamau, wherein the informant has stated that on 27.02.2005 at about 8:00 A.M in the morning, there was an altercation between the deceased Babulal Prasad @ Andu and Sunil Prasad, due to the money collected in Aarti in the Kali Temple, situated in the market. However, with the intervention of the villagers, they were pacified. In the evening, there was a victory procession of the J.D.U Party, in which, his son had taken part and thereafter, at about 8.15 P.M, he came to his shop for closing it. In the meantime, Rajmani Prasad and his sons Sunil Prasad, Anil Prasad and Sheo Pujan Prasad came there. Sheo Pujan Prasad was armed with pistol whereas the other three accused were empty handed. They surrounded the son of the informant. In the meantime, Rajmani Prasad and his sons Sunil Prasad, Anil Prasad and Sheo Pujan Prasad came there. Sheo Pujan Prasad was armed with pistol whereas the other three accused were empty handed. They surrounded the son of the informant. Sunil Prasad and Anil Prasad caught hold the son of the informant and Sheo Pujan Prasad fired pistol upon him, due to which, his son fell down and the accused persons fled away. He has stated that he, his son Gajendra Prasad and the villager Megh Nath Prasad, saw the occurrence, and rushed towards the spot, and found his son dead. The villagers had also assembled there and in the meantime, the police also arrived at the place of occurrence. Claiming that Rajmani Prasad and his three sons had assaulted the deceased by a country made pistol, causing his death, the fardbeyan was given, on the basis which, Palamau Town (Satbarwa O.P) P.S. Case No.64 of 2005, corresponding to G.R No.259 of 2005, was instituted for the offences under Sections 302 / 34 of the Indian Penal Code and 27 of the Arms Act, against four named accused persons and investigation was taken up. After investigation, the police submitted the charge-sheet in the case. 5. After commitment of the case to the Court of Session, charge was framed against all the accused persons for the offences under Sections 302 / 34 of the Indian Penal Code and Section 27 of the Arms Act, and upon the accused persons' pleading not guilty and claiming to be tried, they were put to trial. In course of trial, nine 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. 6. P.W.-8 Krishna Prasad @ Sao is the informant and the father of the deceased. This witness has stated that the occurrence had taken place on 27.2.2005 in the evening. He was at his shop situated at Satbarwa Bazar. His son had also a shop in front of his shop. When his son, Babulal Prasad @ Andu was closing his shop, he was surrounded by four accused persons, namely, Rajmani Prasad, Sunil Prasad and Anil Prasad, who apprehended him and Sheo Pujan Prasad fired a country-made pistol, causing injuries near his left ear. His son had also a shop in front of his shop. When his son, Babulal Prasad @ Andu was closing his shop, he was surrounded by four accused persons, namely, Rajmani Prasad, Sunil Prasad and Anil Prasad, who apprehended him and Sheo Pujan Prasad fired a country-made pistol, causing injuries near his left ear. His son fell down and died at the spot, and all the four accused persons fled away. The police thereafter reached the place of occurrence and several people had also assembled there. He gave the fardbeyan to the police, which was recorded and read over to him. He put his signature and Mohan Joshi also put his signature as a witness. He has identified both the signatures on the fardbeyan, which were marked Exhibits-2 and 2/1. He has identified the accused, present in the Court and has claimed to identify the other accused persons. In his cross-examination, this witness has stated that he was present at the place of occurrence and he had himself seen the occurrence. He has stated that he did not remember whether he had stated in his restatement that at the time of the occurrence, the servant raised the alarm, upon which, this witness and his son, Gajendra Prasad and other persons came to the place of occurrence and saw the deceased dead. He has denied the suggestion to have given the statement before the police that he was informed about the occurrence by the servant. He has also stated that there was blood at the place of occurrence and the blood stains were also there on the wall of the shop. He did not remember whether he had seen any fired cartridge or pellet at the place of occurrence. This witness has stated that there was only one injury on his son which was near the left ear. He has further stated that his statement was recorded at about 8:30 P.M in the night. The dead body was removed on 28.02.2005 at about 11-11:30 A.M, but he did not remember whether any paper relating to the dead body was prepared or not. This witness has also stated that the place of occurrence is at the main Daltonganj-Ranchi road. He has further stated that his statement was recorded at about 8:30 P.M in the night. The dead body was removed on 28.02.2005 at about 11-11:30 A.M, but he did not remember whether any paper relating to the dead body was prepared or not. This witness has also stated that the place of occurrence is at the main Daltonganj-Ranchi road. He also did not remember whether the police had seized the blood or the bloodstained soil from the place of occurrence or not, and he had no knowledge that the house and the shop of the accused were burnt in the same night. He has denied the suggestion of giving the false evidence. 7. P.W.-2 Kamlesh @ Kamesh Pal is the minor boy, aged about 15 years, who was working at the shop of the deceased. He has stated that the occurrence had taken place about one year ago in a Sunday night at about 8:00 P.M. He was in the shop of Babulal Prasad @ Andu, where he was working. Four persons Anil Prasad, Sunil Prasad, Rajmani Prasad and Sheo Pujan Prasad came at the shop. Anil Prasad, Sunil Prasad and Rajmani Prasad apprehended Babulal and Babulal was assaulted by pistol, causing injury near his ear, due to which, he fell down and died. He has identified the accused persons in the Court. In his cross-examination, this witness has stated that there are several shops nearby, and at the time of occurrence, he was outside the shop at a distance of about 3 feet. He did not remember as to how many firings were made, but he has stated that the assault was made from the close range and there was blood at the place of occurrence and the bloodstains were also there on the wall of the shop. He has stated that a small shop of Sunil Prasad is also there, but he has no knowledge whether the said shop or the house of the accused were put to fire. He has stated that he did not remember whether the blood was seized by the police from the place of occurrence or not, and he has denied the suggestion to have given the false evidence. 8. P.W.-7 Gajendra Prasad is the brother of the deceased. This witness has stated that the occurrence had taken place about one year ago and he was at his shop. 8. P.W.-7 Gajendra Prasad is the brother of the deceased. This witness has stated that the occurrence had taken place about one year ago and he was at his shop. Anil Prasad, Sunil Prasad, Sheo Pujan Prasad and Rajmani Prasad came there and Sheo Pujan Prasad fired upon his brother, Babulal Prasad @ Andu, who fell down and died. He has identified the accused, present in the Court and has claimed to identify the other accused persons. In his cross-examination, this witness has stated that he himself had not seen the occurrence, rather he was informed about the occurrence by Kamlesh Pal and on the alarm raised by him, he had reached there with his father. 8-10 persons had also reached there. He had seen the blood in the shop and he remained at the place of occurrence for the whole night. The dead body was taken away in the next morning for post-mortem examination. He did not remember as to how the police had arrived at the place of occurrence, because he was very disturbed due to the death of his brother. He has also stated that the house of the accused was not burnt in the night of the occurrence, and he has no knowledge about any case for that. He has also denied the suggestion to have given the false evidence. 9. P.W.-1 Megh Raj Prasad, P.W.-4 Md. Parwez Ansari, P.W.-5 Lakshman Prasad and P.W.-6 Mohan Joshi are the nearby shopkeepers, and they had heard the sound of firing and upon hearing the alarm raised by Kamlesh @ Kamesh Pal, they rushed to the spot and saw the deceased dead. All of them were informed by Kamlesh @ Kamesh Pal that Rajmani Prasad, Sunil Prasad and Anil Prasad had apprehended the deceased and Sheo Pujan Prasad had assaulted him by firearm, causing his death. They had seen the injury near the ear of the deceased and they have also supported the fact that on the same day, there was an altercation between the deceased and the accused, Sunil Prasad for the money collected in the Aarti of Kali Temple, which was subsequently pacified. There is nothing in the cross-examinations of these witnesses to discredit their testimonies. There is nothing in the cross-examinations of these witnesses to discredit their testimonies. They have stated about the presence of the blood at the place of occurrence, and P.W.-5 Lakshman Prasad and P.W.-6 Mohan Joshi have also denied the fact of putting the house or the shop of the deceased to fire in the night of the occurrence. 10. P.W.-3 is Dr. Jiwant Lakra, who had conducted the post-mortem examination on the dead body of the deceased on 28.02.2005 and had found the firearm injury on the dead body, as follows :- (i) Entry wound: -Lacerated, circular, perforating wound about 2½ cm. in diameter, edge of wound inverted at right side perito temporal region of the head. (ii) Exit wound: -Lacerated wound, about 1½ cm. in diameter, edge of wound averted on left temporal region of head. Findings: -smoking tattooing marks present partly on right side of the face. Bleeding from mouth and right ear. On internal examination -fracture of skull bone at right perito-temporal region of head. Lacerated perforating wound on Brain, brain hemorrhage. He has stated that the death was caused due to shock and hemorrhage due to the head injury caused by firearm such as a country made pistol. He has identified the post-mortem report to be in his pen and signature, which was marked Exhibit-1. In his cross-examination, he has stated that there was possibility of profuse bleeding from the injury and if the pellet exits, the pellet will either fall on earth or dash against the wall. He has also stated that the entry injury of pellet is larger than the injury of exit. 11. P.W.-9 is Jiwan Marandi, who is the I.O. of the case. He has stated that on 27.02.2005 he was posted as S.I at Satbarwa O.P. He had recorded the fardbeyan of the informant, Krishna Prasad @ Sao at the shop adjacent to NH Road, which was read over to him and the informant and one witness had put their signatures on it. He has identified the fardbeyan in the Court. He has also identified the endorsement and the formal F.I.R. The formal FIR along with the fardbeyan was marked Exhibit-3. He has stated that he took over the charge of investigation and has detailed the place of occurrence, which is adjacent to NH-75, at Satbarwa Bazar. He has identified the fardbeyan in the Court. He has also identified the endorsement and the formal F.I.R. The formal FIR along with the fardbeyan was marked Exhibit-3. He has stated that he took over the charge of investigation and has detailed the place of occurrence, which is adjacent to NH-75, at Satbarwa Bazar. The dead body of the deceased was found on the verandah of his shop, which was the place of occurrence, and he has given the details of the nearby shops also. He has stated that he prepared the inquest report of the dead body, which on his identification was marked Exhibit-4. He recorded the statements of the witnesses, received the post-mortem report and after completing the investigation, he submitted the charge-sheet in the case. He has stated that the accused persons had surrendered in the Court and as such, their statements were not recorded by him. In his cross-examination, this witness has stated that the informant, Krishna Prasad had not stated before him that he had seen the occurrence by his own eyes and in his re-examination, he had stated that on the alarm raised by the servant, he rushed there and saw his son, Babulal dead. He has again stated in his cross-examination that the informant had not stated that he was informed about the occurrence by the servant. He has also stated that he was not informed about the occurrence by anyone, rather he was on the evening patrolling duty. He recorded the fardbeyan at 8.30 P.M., and he had prepared the inquest report in the same night and had also inspected the place of occurrence in the night itself. He had not seized the bloodstained soil and it is not mentioned in the case diary whether there was bloodstains on the wall of the shop or not. He had not recovered any fired cartridge or pellet etc., from the place of occurrence, nor he had found any mark of bullet on the wall of the shop. He has stated that in the case diary, it is mentioned that the inquest report would be prepared on 28.03.2005. This witness has also stated that the accused persons had not filed any case regarding burning of their shop and he has denied the suggestion that he is the I.O of the said case as well. He has denied the suggestion of making faulty investigation. 12. This witness has also stated that the accused persons had not filed any case regarding burning of their shop and he has denied the suggestion that he is the I.O of the said case as well. He has denied the suggestion of making faulty investigation. 12. The statements of the accused persons were recorded under Section 313 of the Cr.P.C., wherein the accused have denied the evidence against them. However, no evidence either documentary or oral, was adduced by the defence. On the basis of the evidence on record, the Trial Court below has found the accused persons guilty, and convicted and sentenced them for the offences as aforesaid. 13. Learned counsel for the appellants has submitted that the impugned Judgment passed by the Trial Court below cannot be sustained in the eyes of law, inasmuch as the prosecution has failed to bring home the charge against the accused persons beyond all reasonable doubts. It is submitted that the informant has claimed to be the eyewitness to the occurrence, but his claim is falsified by the evidence of the I.O., who has stated that the informant had not stated before him that he had himself seen the occurrence and in his re-statement, he had stated that upon the alarm raised by the servant, he reached the place of occurrence and saw his son dead. Learned counsel further submitted that thus, only eyewitness to the occurrence is P.W.-2 Kamlesh @ Kamesh Prasad, who has only stated that all the four accused persons came there. Anil Prasad, Sunil Prasad and Rajmani Prasad apprehended Babulal and thereafter, Babulal was assaulted by pistol, causing injuries near his ear. This witness has not stated as to who had assaulted the deceased by firearm. Learned counsel also submitted that the evidence of this witness is also not corroborated by the medical evidence of P.W.-3 Dr. Jiwant Lakra. Even the I.O of the case has not stated that he found any bloodstain at the place of occurrence and had not seized blood or bloodstained soil from the place of occurrence. It is also submitted that the prosecution has not been able to prove the place of occurrence as well, as though there was a wound of exist on the deceased, but no pellet or fired cartridge was recovered from the place of occurrence. It is also submitted that the prosecution has not been able to prove the place of occurrence as well, as though there was a wound of exist on the deceased, but no pellet or fired cartridge was recovered from the place of occurrence. It is submitted that according to the FIR, the deceased had attended the victory procession of a political party just before the occurrence, and as such there may be all probabilities of the deceased being killed in the procession by someone, and thereafter his dead body was brought to his shop. As such, even though the witnesses have supported the case, but in the facts of the case the accused appellants were entitled at least to the benefits of doubt, as the false implication of the accused persons due to admitted enmity, for quarrel for the money of Aarti of the Kali Temple, could not be ruled out. 14. Learned counsel for the appellant has placed reliance upon the decision of the Hon'ble Supreme Court of India in Pankaj Vs. State of Rajasthan, reported in 2016 (4) East Cr C 154 (SC), wherein it is held that if there is material difference in the evidence, the firearm injury on the deceased could not be corroborated by the evidence of the witnesses, the motive of the occurrence is not proved and the genesis and manner of the occurrence are not established, the prosecution case fails and the accused is entitled to the benefits of doubt. 15. Learned counsels for the State and the informant, on the other hand, have opposed the prayer and have submitted that the prosecution has been able to bring home the charge against the accused persons beyond all reasonable doubts. It is submitted that P.W.-2 kamlesh @ Kamesh Pal, who was working as servant at the shop of the deceased and P.W.-8 Krishna Prasad @ Sao, the informant and the father of the deceased, are the eyewitnesses to the occurrence and they have fully supported the prosecution case. It is submitted by the learned counsels for the State and the informant that P.W.-2 Kamlesh @ Kamesh Pal is the child witness and he has named all the four accused persons, stating that three of them had apprehended the deceased and further stated that the deceased was assaulted by firearm causing his death at the spot. It is submitted by the learned counsels for the State and the informant that P.W.-2 Kamlesh @ Kamesh Pal is the child witness and he has named all the four accused persons, stating that three of them had apprehended the deceased and further stated that the deceased was assaulted by firearm causing his death at the spot. Even though the name of the accused firing the pistol upon the deceased has not been specifically taken by P.W.-2, but there was no one else except the accused, Sheo Pujan Prasad to have assaulted the deceased by firearm, as the other three were apprehending the deceased. Learned counsels accordingly, submitted that only due to this minor omission by a child witness, it cannot be said that the prosecution has failed to bring home the charge against the accused persons. Learned counsels also submitted that the other witnesses, namely, P.W.-1 Megh Raj Prasad, P.W.-4 Md. Parwez Ansari, P.W.-5 Lakshman Prasad, P.W.-6 Mohan Joshi and P.W.-7 Gajendra Prasad have stated that they were informed by the servant of the shop, i.e., P.W.-2 Kamlesh @ Kamesh Pal, that three accused persons had apprehended the deceased and Sheo Pujan Prasad had assaulted him by firearm. The evidence of P.W.-8 Krishna Prasad @ Sao, the informant and the father of the deceased, also cannot be doubted, in view of the fact that the fardbeyan given by him clearly shows that he is an eyewitness to the occurrence. He was also present at his shop nearby and only due to the fact that in his restatement, he has stated that the alarm was also raised by the servant of the shop, whereupon he went there and saw his son dead, it cannot be presumed that he is not an eyewitness to the occurrence. Indeed, even the I.O of the case, P.W.-9 Jiwan Marandi has stated in his cross-examination that the informant had not stated that he was informed about the occurrence by the servant. Learned counsels submitted that the ocular evidence of all these witnesses is fully corroborated by the medical evidence of P.W.-3 Dr. Jiwant Lakra, who had found the injury caused by the firearm, which was sufficient in the ordinary course of nature to cause the death of the deceased. Learned counsels accordingly, submitted that there is no illegality in the impugned Judgment of conviction and Order of sentence passed by the Trial Court below. 16. Jiwant Lakra, who had found the injury caused by the firearm, which was sufficient in the ordinary course of nature to cause the death of the deceased. Learned counsels accordingly, submitted that there is no illegality in the impugned Judgment of conviction and Order of sentence passed by the Trial Court below. 16. Having heard the learned counsels for both sides and upon going through the record, we find that P.W.-2 Kamlesh @ Kamesh Pal is the child witness, who has stood the test of the cross-examination very well. This witness was also found competent to depose, and this witness has supported the prosecution case as an eyewitness to the occurrence. He has stated that he was present at the place of occurrence as he was working in the shop of the deceased, and all the four accused persons namely Rajmani Prasad, Anil Prasad, Sunil Prasad and Sheo Pujan Prasad came there and three of them, namely, Rajmani Prasad, Sunil Prasad and Anil Prasad apprehended the deceased and the deceased was fired by pistol causing his death at the spot. Even though, this witness has not stated that who had fired the pistol, but out of the four persons, three were apprehending the deceased and it is apparent that the fourth accused had fired pistol upon the deceased causing his death at the spot. This fact was informed by this witness to all the hearsay witnesses, namely, P.W.-1 Meg Raj Prasad, P.W.-4 Md. Parwez Ansari, P.W.-5 Lakshman Prasad, P.W.-6 Mohan Joshi and P.W.-7 Gajendra Prasad, who have stated that they were informed by P.W.-2 Kamlesh @ Kamesh Pal that the three accused persons had apprehended the deceased and Sheo Pujan Prasad had assaulted him by firearm causing his death at the spot. Though the learned counsel for the defence has tried to impress the Court that the informant, P.W.-8 Krishna Prasad @ Sao is not an eyewitness to the occurrence, but it is apparent from his evidence that he was also present at the place of occurrence. The fact that he had seen the occurrence cannot be doubted simply for the fact that he had stated in his restatement that alarm was raised by the servant of the shop, whereupon he rushed there and saw the dead body of the deceased. The fact that he had seen the occurrence cannot be doubted simply for the fact that he had stated in his restatement that alarm was raised by the servant of the shop, whereupon he rushed there and saw the dead body of the deceased. Indeed, the fardbeyan of the informant was recorded as an eyewitness to the occurrence, and the I.O of the case has also stated in his cross-examination that this witness had not stated before him that he was informed about the occurrence by the servant of the shop. Simply because of the fact that the question put to the I.O., in cross-examination has been answered stating that the informant had not given the statement before him that he had seen the occurrence with his own eyes, it cannot be inferred that the informant was not the eye witness to the occurrence. An eyewitness to an occurrence is not required to give a specific statement before the I.O., that he or she had seen the occurrence by his / her own eyes, rather it is the evidence in totality, which determines that a particular witness is the eyewitness or a hearsay witness. In that view of the matter, the presence of the informant, who is the father of the deceased and whose shop was also situated nearby the place of occurrence, cannot be doubted, and his evidence as well as his fardbeyan clearly show that he is an eyewitness to the occurrence. The evidence of both the eyewitnesses and all the hearsay witnesses clearly proved the genesis and the manner of occurrence, and the place of occurrence is also fully established by their evidence, which is the shop of the deceased by the side of NH 75, running between Daltonganj to Ranchi, situated at Satbarwa Bazar, where the dead body of the deceased was lying. The ocular evidence of these witnesses is fully corroborated by the medical evidence of P.W.-3 Dr. Jiwant Lakra, and the post-mortem report proved by him as Exhibit-1, who had found the firearm injury on the head of the dead body of the deceased, sufficient to cause the death in the ordinary course of nature. Simply because of the fact that the I.O. of the case had not seized the blood or had not found any pellet or fired cartridge at the place of occurrence, the prosecution case cannot be doubted at all. Simply because of the fact that the I.O. of the case had not seized the blood or had not found any pellet or fired cartridge at the place of occurrence, the prosecution case cannot be doubted at all. The I.O of the case has nowhere stated that he had not found the blood or bloodstains at the place of occurrence, rather he has only stated that he had not recorded the same in the case diary. 17. In the facts of this case and on the basis of the evidence brought on record, we are of the considered view that the prosecution has been able to bring home the charge against all the three surviving appellants, namely, Anil Prasad @ Anil Kumar Gupta, Sunil Prasad and Sheo Pujan Prasad for the offence under Sections 302 / 34 of the Indian Penal Code, and has also been able to bring home the charge for the offence under Section 27 of the Arms Act, only against the appellant Sheo Pujan Prasad. There is no illegality and / or irregularity in the impugned Judgment of conviction and Order of sentence, warranting any interference by this Court. 18. For the foregoing reasons, we find no illegality in the impugned Judgment of conviction dated 24.07.2007 and Order of sentence dated 25.07.2007, passed by the learned Sessions Judge, Palamau at Daltonganj, in Sessions Trial No. 160 of 2005, convicting and sentencing the appellants, namely Anil Prasad @ Anil Kumar Gupta, Sunil Prasad & Sheo Pujan Prasad for the offence under Sections 302 / 34 of the Indian Penal Code and the appellant Sheo Pujan Prasad also for offence under Section 27 of the Arms Act, which, we hereby, affirm. 19. The appellant Sheo Pujan Prasad is already in custody, undergoing the sentence. The other two appellants Anil Prasad @ Anil Kumar Gupta and Sunil Prasad are on bail. Their bails are hereby, cancelled and they are directed to surrender in the Court below forthwith for serving out the sentence. The Court below is also directed to issue process forthwith, compelling the surrender / production of these two appellants for serving out the sentence. 20. We find no merit in this appeal, which is accordingly, dismissed. Let the Lower Court Records be sent back to the Court concerned forthwith, along with the copy of this Judgment.