JUDGMENT : S. Chandrashekhar, J. 1. Nineteen persons were named accused by the informant in his fardbeyan which was recorded on 21.1.2007 at about 2:15 p.m. at Sadar Hospital, Deoghar for causing death of Tahir Mian and for causing injuries to him. They have faced the trial on the charges under sections 147, 148, 307/149, 302/149 and 452 IPC. 2. Separate charge under section 27 of the Arms Act was framed against the accused persons, namely, Firoz Mian and Bhutka Mian. 3. Except the appellants, namely, Firoz Mian, Bhutka Mian, Azad Mian and also Islam Mian who has died during pendency of the trial, the other fifteen accused persons have been acquitted of the charges framed against them. 4. The appellants, namely, Firoz Mian, Bhutka Mian and Azad Mian have been convicted under section 302/34 IPC and sentenced to undergo R.I. for life. The appellants, namely, Bhutka Mian and Firoz Mian have been convicted also under section 27 of the Arms Act and sentenced to undergo R.I. for three years for the said offence. 5. These three criminal appeals; Cr. Appeal (DB) Nos. 437 of 2010 by Firoz Mian, Cr. Appeal (DB) No. 339 of 2010 by Azad Mian and Cr. Appeal (DB) No. 400 of 2010 by Bhutka Mian, arise from the common judgment of conviction and sentence inflicted upon the appellants, in S.C. No. 157 of 2007. 6. During the trial, the prosecution has examined altogether thirteen witnesses; the informant is Zakir Mian (Jakir Ansari) P.W.-6 and the accused persons have examined one witness, namely, Md. Khalil. 7. Dr. R.N. Prasad-P.W.-7, who has conducted the post-mortem examination over the dead body of the deceased Tahir Mian, has found the following injuries: "(i) one wound of entry at right side of chest medial to nipple measuring 1/4" x 1/4" with blood clot and blackening all around. (ii) One wound of exit at the level of 8th dorsal vertebra lateral to vertebral column on right side, measuring 1" x 3/4" with blood cloth. Both wounds were communicating to each other. These injuries were caused by fire arm." 8. Both the injuries on Tahir Mian were found communicating to each other, caused by fire arm. According to the doctor, the injuries were ante-mortem in nature and the time elapsed since death was within 24 hours of the post-mortem examination; the post-mortem examination was conducted on 21.1.2007 at about 10:00 a.m. 9. These injuries were caused by fire arm." 8. Both the injuries on Tahir Mian were found communicating to each other, caused by fire arm. According to the doctor, the injuries were ante-mortem in nature and the time elapsed since death was within 24 hours of the post-mortem examination; the post-mortem examination was conducted on 21.1.2007 at about 10:00 a.m. 9. According to the prosecution, the informant, namely, Zakir Mian has also sustained injuries in the occurrence. He was examined by Dr. R.K. Chourasia-P.W.-8, who has found the following injuries on him: (i) Incised wound left side of fore head 4" x 1" x scalp deep. (ii) Incised wound 4" x 1/2"x scalp deep (iii) Abrasion and swelling left elbow joint 1" x 1 1/2". 10. According to P.W.-8, the injury Nos. 1 and 2 were caused by a sharp cutting weapon, such as sword, and the injury No. 3 was caused by a hard and blunt substance. 11. The prosecution has projected Md. Sartaz Ansari-P.W.-1, Atif Ansari-P.W.-3, Roshan Mian-P.W.-4, Jabiran Bibi-P.W.-5 and Saroja Bibi-P.W.-9 along with the informant as the eye-witnesses. 12. The investigating officer who has been examined as P.W. 12 has deposed in the court that he has recorded the fardbeyan of Zakir Mian in Sadar Hospital, Deoghar on the same day and Zakir Mian and Subhan Mian have put their signature on the fardbeyan. He has recorded the statement of the witnesses and inspected the place of occurrence which is situated at village-Tabhaghat. He has found pellets near the wall and blood at the verandah and on the wall. He has found door (Bera) broken and articles scattered in the room. He has entered Sanha No. 471 dated 21.01.2007 and gave information regarding the incident to the patrolling party. He says that he has reached the place of occurrence at 12:25 a.m. The defence witnesses, namely, Md. Khalil-D.W. 1 has stated that there was dacoity in the house of Roshan Mian who had informed him that in course of dacoity Tahid Mian has been killed. He says that he has reached the place of occurrence at 12:25 a.m. The defence witnesses, namely, Md. Khalil-D.W. 1 has stated that there was dacoity in the house of Roshan Mian who had informed him that in course of dacoity Tahid Mian has been killed. The accused persons have filed certified copies of the judgment in T.R. No. 268 of 2006 in which they were acquitted, judgment in T.R. No. 149 of 2005 which was instituted against Tahid Ansari and other accused persons, judgment in T.R. No. 209 of 2001 which was against Latif, Firoz and others, copies of FIR and charge-sheet in Jasidih P.S. Case No. 17 of 2004, Jasidih P.S. Case No. 18 of 2004, Jasidih P.S. Case No. 95 of 2005 and Jasidih P.S. Case No. 94 of 2005. The certified copy of Misc. Case No. 205 of 1997 and the certified copy of Title Appeal No. 19 of 2000 have also been tendered in evidence. These documents have been produced by the accused persons to establish that there was a long standing enmity between the parties. 13. Mr. Arvind Kumar Choudhary, the learned counsel for the appellants submits that: (i) the manner of occurrence has not been established by the prosecution, (ii) conviction of Azad Mian for causing death of Tahir Mian by fire arm in absence of a charge against him under section 27 of the Arms Act is not permissible, (iii) the allegation of firing on Tahir Mian by Azad Mian and Bhutka Mian is not consistent, (iv) there are serious contradictions in the testimony of the prosecution witnesses who have contradicted each other on the material aspects, and (v) non-production of the crime weapon has proved fatal for the prosecution. 14. The informant is the brother of Tahir Mian, the deceased. On the day of occurrence he was present in the house. In his fardbeyan, he has stated that in the night after taking dinner while his family had retired to bed he heard sound of firing. He came out of his house and his brother Tahir Mian also went out to ease himself. According to the informant, the accused persons, nineteen in number, and other unknown miscreants caught his brother and held him against the wall and then Firoz Mian fired a shot from a fire arm on Tahir Mian and Bhutka Mian also fired a gun shot. According to the informant, the accused persons, nineteen in number, and other unknown miscreants caught his brother and held him against the wall and then Firoz Mian fired a shot from a fire arm on Tahir Mian and Bhutka Mian also fired a gun shot. On sustaining injuries Tahir Mian fell on the ground and the informant thereafter tried to escape. He came inside his house and bolted the room from inside but the accused persons broke open the door and assaulted him. He has alleged that Azad Mian fired a shot from his pistol but he missed it and Usman Mian gave a blow from sword on his head. The accused persons ransacked his house and thereafter they left the place of occurrence. The children of his family took shelter in the neighbour's house. The informant says that about 4-5 days prior to the occurrence Azad Mian, Firoz Mian and others had threatened them to withdraw the case instituted by Tahir Mian. 15. In his examination-in-chief, the informant has reiterated that on the day of occurrence he was sleeping in his house and on hearing sound of firing when he came out of the house he saw the accused persons chasing his brother. They surrounded his brother and Firoz Mian shot him with a fire arm. The informant has deposed that the accused persons after breaking open the door entered in the house and started assaulting him. He has made allegation of sword blow inflicted by Usman Mian and Sabir Mian on his head. 16. The son of the deceased, namely, Md. Sartaz Ansari, who was examined as P.W.-1, has deposed in the court that at the time of occurrence, that is, in the mid-night of 21.1.2007, he was sleeping with his grandfather. He heard sound of firing and saw his father coming running towards the courtyard. He has stated that the accused persons caught hold of his father and Firoz Mian fired a shot on him. When his grandfather tried to save him, he was assaulted by Usman Mian. His uncle, namely, Zakir Mian was shot at by Azad Mian and when Zakir Ansari bolted the door the accused persons entered his room after breaking open the door and assaulted him. P.W.-1 says that Usman Mian and Sabir Mian have assaulted Zakir Mian with sword. 17. When his grandfather tried to save him, he was assaulted by Usman Mian. His uncle, namely, Zakir Mian was shot at by Azad Mian and when Zakir Ansari bolted the door the accused persons entered his room after breaking open the door and assaulted him. P.W.-1 says that Usman Mian and Sabir Mian have assaulted Zakir Mian with sword. 17. Another son of the deceased, namely, Atif Ansari, who has been examined as P.W.-3, has also made specific allegation of firing shot by Firoz Mian on his father. He has also deposed that Azad Mian has fired a shot from pistol at Zakir Mian and the accused persons after breaking open the door of his room entered his room and assaulted him. 18. Father of the deceased, namely, Roshan Mian P.W.-4, widow of the deceased, namely, Zafiran Bibi P.W.-5, and wife of the informant, namely, Saroja Bibi P.W.-9 have also narrated a similar story of the incident as has been described by the informant. 19. During their cross-examination, P.W.-1, P.W.-3, P.W.-4, P.W.-5, P.W.-6 and P.W.-9 have remained unshaken and nothing material could be elicited from them by the defence. They are natural witnesses. Their presence in the house in the night of the occurrence cannot be doubted. In fact, from the trend of cross-examination it does not appear that the defence has seriously challenged their presence at the place of occurrence in the night of 21.1.2007. These witnesses have consistently spoken of the active role played by the appellants in the occurrence. In the court, they have stated that they have recognized the accused persons in the light of the bulb. It needs to be recorded here that statements of many of these witnesses were recorded under section 164 Cr.P.C. in the initial stage of the investigation and in their testimony in the court they have firmly supported the prosecution's case. The Judicial Magistrate who has recorded the statement of Sartaj, Roshan and Atif has been examined as P.W.-13. 20. Much has been argued by Mr. Arvind Kumar Choudhary, learned counsel for the appellants, on acquittal of as many as fifteen accused persons against whom according to him same evidence was led by the prosecution. The Judicial Magistrate who has recorded the statement of Sartaj, Roshan and Atif has been examined as P.W.-13. 20. Much has been argued by Mr. Arvind Kumar Choudhary, learned counsel for the appellants, on acquittal of as many as fifteen accused persons against whom according to him same evidence was led by the prosecution. We have carefully examined the evidences brought on record of Sessions Case No. 157 of 2007 and find that except Usman Mian and Sabir Mian the prosecution's witnesses have not spoken about specific role played by the other thirteen accused persons who have been acquitted of the charges framed against them. The learned Sessions Judge has recorded a finding that no specific allegation, except against Firoz Mian, Bhutka Mian and Azad Mian, has been made against the other accused persons by the prosecution's witnesses. In respect of Usman Mian, the learned Sessions Judge has taken note of the contradictory evidence of P.W.-4 and other witnesses, to grant him the benefit of doubt. This has also to be kept in mind that though P.W.-8 has found three injuries on Zakir Mian but in the milieu where more than nineteen persons were present and some of them were assaulting the informant, it is quite natural that there may be some discrepancy in the evidence of the prosecution's witnesses to identify the accused persons who have assaulted Zakir Mian. The evidence against Azad Mian on assault by him to Zakir Mian is consistent, but against the acquitted accused persons the prosecution's evidence is not sufficient to rope them in with the aid of Section 149 IPC. Therefore, acquittal of fifteen persons by the learned Sessions Judge in the present case is not without any basis. In the above facts of the case, in our opinion, it is not a ground to disbelieve the prosecution's case as set up against the appellants, namely, Firoz Mian, Bhutka Mian and Azad Mian that on the same set of evidence others have been acquitted. 21. In view of the unimpeachable evidences brought on record through the eye witnesses-P.W.-1, P.W.-3, P.W.-4, P.W.-5, P.W.-6 and P.W.-9-and the medical evidence, failure of the investigating officer to seize the crime weapon would not create any doubt on the prosecution's case. The recovery of the crime weapon is not sine qua non for convicting an accused against whom reliable and trustworthy ocular evidence has come on record. The recovery of the crime weapon is not sine qua non for convicting an accused against whom reliable and trustworthy ocular evidence has come on record. The learned sessions Judge has duly taken notice of the contentions raised by the accused persons on the interested witnesses, the land dispute between the parties and non-production of the Station-Diary entry. We are of the opinion that such pleas urged on behalf of the accused persons would not challenge the veracity of the prosecution's case. It was mid-night of 21.1.2007 when the incident has taken place. If, except the family members of the deceased others have not witnessed the incident, it is not unnatural. They are family members of the deceased and, therefore, they would depose falsely is not a presumption in law. On non-production of the Station Diary entry, it needs to be recorded that within few hours of the incident fardbeyan of the informant who was injured has been recorded in the hospital. In the crime scene as has been described by the prosecution's witnesses in which one person had suffered a fatal gunshot injury, if name of the appellants was not disclosed to the police at the place of occurrence itself, this would not lead to an inference that the appellants have been falsely implicated in the case after due deliberation. After all, it is not the case set up by the accused persons that contrary to what has been recorded in the Station Diary by the police, the informant has narrated a different story in his fardbeyan. 22. The contentions raised on the manner of occurrence and discrepancy in the evidence of the witnesses regarding the person who has fired shot on Tahir Mian are without any substance. In the crime scene which has been narrated by the witnesses, their evidence has to be seen in the background of the chase, breaking open the door and fire arm shots fired by the appellants. Moreover, the death of Tahir Mian is not disputed and firing on Tahir Mian by Firoz Mian is established by the consistent evidence of the prosecution's witnesses. The role played by Azad Mian and Bhutka Mian in the incident has also been established by the prosecution. The appellants have been convicted under section 302/34 IPC and there was no charge under section 302 IPC simplicitor against any one of these appellants. The role played by Azad Mian and Bhutka Mian in the incident has also been established by the prosecution. The appellants have been convicted under section 302/34 IPC and there was no charge under section 302 IPC simplicitor against any one of these appellants. The manner of occurrence as narrated by the prosecution's witnesses clearly establish the role played by these appellants in the incident in which Tahir Mian has suffered gunshot injury due to which he has died. The doctor has opined that the gunshot injury found on Tahir Mian was sufficient to cause instant death. In the above state of evidences, it is fallacious to contend that in the absence of a charge under section 27 of the Arms Act, the appellant, namely, Azad Main cannot be convicted under section 302/34 of the Indian Penal Code for causing death of Tahir Mian. 23. In our opinion, the offence against all the appellants under section 302/34 of the Indian Penal Code has firmly been established by the prosecution. It is a well-settled proposition of law that even if the exact role played by the accused has not been established, he can be convicted with the aid of Section 34 IPC. In "Bharwad Mepa Dana and Anr. v. The State of Bombay" reported in AIR 1960 SC 289 , it has been held by the Hon'ble Supreme Court that Section 34 IPC is intended to meet a case in which it may be difficult to distinguish the acts of individual members of a party who acted in furtherance of the common intention of all or to prove exactly what part was taken by each of them. It has been observed that the principle which Section 34 IPC embodies is participation in some action with the common intention of committing a crime and once such participation is established, Section 34 is at once attracted. 24. In view of the above discussions, we find no error in the judgment of conviction dated 03.4.2010 and the order of sentence dated 06.4.2010 passed by the 2nd Additional Sessions Judge-Deoghar in Sessions Case No. 157 of 2007. 25. In the result, Cr. Appeal (D.B.) No. 437 of 2010, Cr. Appeal (D.B.) No. 339 of 2010 and Cr. Appeal (D.B.) No. 400 of 2010 are dismissed. 26. The appellants, namely, Azad Mian and Bhutka Mian are on bail. Accordingly, their bail-bonds are cancelled. 25. In the result, Cr. Appeal (D.B.) No. 437 of 2010, Cr. Appeal (D.B.) No. 339 of 2010 and Cr. Appeal (D.B.) No. 400 of 2010 are dismissed. 26. The appellants, namely, Azad Mian and Bhutka Mian are on bail. Accordingly, their bail-bonds are cancelled. They shall surrender before the court below to serve the remaining sentence. 27. Let lower court records be transmitted to the Court concerned, forthwith.