JUDGMENT : Shree Chandrashekhar, J. These criminal appeals; Cr. Appeal (D.B.) No. 698 of 2012 by Maniruddin Ansari @ Maniruddin Mian @ Ansari, Cr. Appeal (D.B.) No. 387 of 2012 by Gangadhar Mandal, Cr. Appeal (D.B.) No. 389 of 2012 by Ishak Ansari and Cr. Appeal (D.B.) No. 391 of 2012 by Ainul Ansari and Qayum Ansari, have been filed challenging the judgment of conviction dated 19.03.2012 and the order of sentence dated 23.03.2012 passed against the appellants in Sessions Trial No. 20/93. 2. The appellants along with Yashin Mian were charged under section 148 IPC. The appellants, namely, Ainul Ansari, Md. Ishak and Qayum Ansari along with Yashin Mian were charged under section 302/149 IPC whereas the appellant, namely, Maniruddin Ansari has been charged under section 302/34 IPC. Maniruddin Ansari has also been charged under sections 3 and 5 of the Explosive Substance Act, 1908. 3. During the trial, the accused Yashin Mian has died and, accordingly, trial against him has abated. 4. The learned Sessions Judge has convicted and sentenced the appellants, namely, Maniruddin Ansari, Ainul Ansari, Md. Ishak and Qayum Ansari to RI for life and fine of Rs.10000/- each under section 302/34 IPC. 5. All the appellants have been convicted and sentenced to RI for three years and fine of Rs.2000/- each under section 148 IPC. 6. The charge under sections 3 and 5 of the Explosive Substance Act has failed. 7. The informant of this case, namely, Gulam Rashul Mian is father of the deceased. On the basis of his fardbeyan, which was recorded on 21.07.1991 at about 9:00 a.m., Tundi P.S. Case No.42/91 was registered against eight accused persons; besides the appellants and Yashin Mian, who has died during the trial, Mansoor Ansari and Pappu Ansari were also named as accused. 8. The accused persons, namely, Mansoor Ansari and Pappu Ansari have absconded and, therefore, their case was separated. Subsequently, they have faced the trial in S.T. No. 20B/93 and they have been acquitted. 9. On acquittal of these two accused persons, we find that during trial of S.T. No.20B of 1993 the prosecution witnesses have turned hostile. 8. The accused persons, namely, Mansoor Ansari and Pappu Ansari have absconded and, therefore, their case was separated. Subsequently, they have faced the trial in S.T. No. 20B/93 and they have been acquitted. 9. On acquittal of these two accused persons, we find that during trial of S.T. No.20B of 1993 the prosecution witnesses have turned hostile. We further find that before the trial in this case concluded, the informant was murdered and the appellants, namely, Maniruddin Ansari @ Maniruddin Mian @ Ansari, Gangadhar Mandal, Ishak Ansari, Ainul Ansari and Qayum Ansari, have faced trial in Sessions Trial No. 20/93 on the charge of murder of Gulam Rashul Mian and they have been convicted under section 302/34 IPC. 10. In his fardbeyan, the informant has stated that on 20.07.1991 it was Muharram and after Muharram festivities his son, namely, Amiruddin Mian had come back home. It was around 9:45 p.m.in the night when after taking dinner he was sitting at his verandah. Others also joined him and they were gossiping at the verandah. His son- Amiruddin Mian put the petromax on a kulhi and gone to ease himself. In the meantime, he heard the sound of “maro-maro” and then he saw all the above-named accused persons near his son. According to the informant, Mansoor Ansari had thrown a bomb at Amiruddin Mian due to which he suffered injuries and fell on the ground. He has alleged that Gangadhar Mandal and other accused persons were also carrying deadly weapons. 11. During the trial, the prosecution has examined seven witnesses; the informant is PW-5. 12. The prosecution has projected Abbas Mian PW-1, Abdul Jabbar PW-2, Hanif Ansari PW-4 and Gulam Rashul PW-5 as eye-witnesses. Madina Bibi PW-3, who is the wife of the deceased, has seen later part of the occurrence. 13. Dr. Vinod Kumar PW-7, who has conducted the post-mortem examination at 3:00 p.m. on 21.07.1991, has found the following injuries on Amiruddin Ansari: “1. Lacerated wound 7” x 6 ½” x brain deep on the back of head, brain matter partly thrown out, scalp avulged at the margin. 2. Cutical deep burn seen 4” x 3” area on the lop of left shoulder with yellowish colouration of the margin by sulpher power (Emitting smell of sulpher) 3. Lacerated wound 7” x 6 ½” x brain deep on the back of head, brain matter partly thrown out, scalp avulged at the margin. 2. Cutical deep burn seen 4” x 3” area on the lop of left shoulder with yellowish colouration of the margin by sulpher power (Emitting smell of sulpher) 3. Incised wound 4” x 1 ¼” x ½” on the upper border of right shoulder blade and 3” x 1” x 1/3” on the upper border of left shoulder blade.” 14. According to the doctor, the injuries were ante-mortem in nature and death was caused between 15:00 hrs.-20:00 hrs. from the time of post-mortem examination. The cause of death was injuries caused by bomb explosion. 15. In the court, the informant has narrated a similar story about the incident. However, he has stated in the court that due to the bomb hurled by Maniruddin Ansari his son has suffered head injury and he died on the spot; in the First Information Report he has alleged that Mansoor Ansari has thrown bomb at his son. The other prosecution witnesses – PW-1, PW-2 and PW-4 – have also given a similar description about the incident which has occurred near the house of the informant at about 9:45 p.m. on 20.07.1991. 16. The learned counsels appearing for the appellants have submitted that: (i) identification and participation of the appellants in the occurrence is doubtful, (ii) PW-3 has named only one accused Maniruddin Ansari as the person who has participated in the crime, (iii) enmity between the parties is admitted, (iv) no sign of bomb explosion was found at the place of occurrence, and (v) the information given by the chawkidar to the police has been suppressed. 17. On the above grounds, it is contended that complicity of the appellants in the occurrence is doubtful. 18. The appellants are co-villagers. They are inimical to each other but their identification cannot be doubted on this ground or because petromax was not seized by the Investigating Officer. It is also true that both sides are fighting cases lodged against each other and all the eye-witnesses are related to each other, but their evidence cannot be rejected summarily for this reason. The appellants are named in the First Information Report which was lodged promptly eliminating possibility of their false implication. It is also true that both sides are fighting cases lodged against each other and all the eye-witnesses are related to each other, but their evidence cannot be rejected summarily for this reason. The appellants are named in the First Information Report which was lodged promptly eliminating possibility of their false implication. This also can be observed that a father would not falsely implicate someone who is not the real culprit. In our opinion, because the information sent through chaukidar was not brought on record or that there are minor inconsistencies in testimony of the prosecution witnesses truthfulness of the eye-witnesses cannot be doubted. In “A. Shankar Vs. State of Karnataka” (2011) 6 SCC 279 , the Hon’ble Supreme Court has held as under: 22. In all criminal cases, normal discrepancies are bound to occur in the depositions of witnesses due to normal errors of observation, namely, errors of memory due to lapse of time or due to mental disposition such as shock and horror at the time of occurrence. Where the omissions amount to a contradiction, creating a serious doubt about the truthfulness of the witness and other witnesses also make material improvement while deposing in the court, such evidence cannot be safe to rely upon. However, minor contradictions, inconsistencies, embellishments or improvements on trivial matters which do not affect the core of the prosecution case, should not be made a ground on which the evidence can be rejected in its entirety.” 19. The learned Sessions Judge has held that the appellants, namely, Maniruddin Ansari, Ainul Ansari, Md. Ishak and Qayum Ansari have shared common intention to cause death of Amiruddin Ansari. 20. No charge under section 302/34 IPC was framed against Ainul Ansari, Md. Ishak and Qayum Ansari, but, if the prosecution brings such evidence which would establish common intention of all irrespective of whether a specific charge under section 302/34 IPC has been framed or not, conviction of the accused persons can be sustained under section 302/34 IPC, even though a charge has been framed under section 302/149 IPC [refer, “Dhanna v. State of M.P” reported in (1996) 10 SCC 79 ]. It is also well-settled that conviction with the aid of section 149 IPC can be recorded against less than five persons if it is found that five or more persons have taken part in the occurrence. It is also well-settled that conviction with the aid of section 149 IPC can be recorded against less than five persons if it is found that five or more persons have taken part in the occurrence. In “Ram Dular Rai v. State of Bihar”, reported in (2003) 12 SCC 352 , the Supreme Court has observed as under: “6. Coming to the question whether Section 149 has application when presence of more than five persons is established, but only four are identified, Section 149 does not require that all the five persons must be identified. What is required to be established is the presence of five persons with a common intention of doing an act. If that is established merely because the other persons present are not identified that does not in any way affect applicability of Section 149 IPC.” 21. In this case, the evidences led by the prosecution through PW-1, PW-2, PW-3, PW-4 and PW-5 do not establish that the appellants shared common intention to cause murder of Amiruddin Ansari. In his examination-in-chief, the informant has stated that after the bomb explosion due to smoke he could not see whether other accused persons have also assaulted his son. None of the prosecution witnesses has imputed specific overt act by Ainul Ansari, Md. Ishak and Qayum Ansari in the incident. The medical evidence also does not disclose as if all of them have assaulted Amiruddin Ansari. Dr. Vinod Kumar PW-7 who has conducted the post-mortem examination has found one lacerated wound, one cutical deep burn and two incised wounds on the person of Amiruddin Ansari. On such evidence, particularly, when the prosecution witnesses have failed to depose about active participation of these three appellants in the incident, it is difficult to hold that they have shared common intention with Maniruddin Ansari to cause murder of Amiruddin Ansari. Merely because they were with Maniruddin Ansari at the time of occurrence and someone amongst the accused persons has exhorted “maro-maro” it cannot be held that the prosecution has proved that the appellants shared common intention with Maniruddin Ansari and death of Amiruddin Ansari has been caused in furtherance of common intention of all. 22. Accordingly, conviction of Ainul Ansari, Md. Ishak and Qayum Ansari under section 302/34 IPC is set-aside. 23. 22. Accordingly, conviction of Ainul Ansari, Md. Ishak and Qayum Ansari under section 302/34 IPC is set-aside. 23. However, the prosecution witnesses are consistent in their evidence in so far as death of Amiruddin Ansari caused by bomb thrown by Maniruddin Ansari is concerned. They all have stated that Maniruddin Ansari has thrown a bomb which has caused death of Amiruddin Ansari. On this point, they have remained unshaken during their cross-examination and nothing material could be elicited from them by the defence which would create a doubt on the role played by Maniruddin Ansari. 24. Accordingly, the appellant Maniruddin Ansari is convicted under section 302 IPC and the judgment of his conviction under section 302/34 IPC is modified to this extent. 25. The convict, namely, Gangadhar Mandal, who is the appellant in Cr. Appeal (D.B.) No. 387 of 2012, has faced the trial only under section 148 IPC. The prosecution witnesses have not spoken about specific role played by him, except PW-1 and PW-4 who have stated that he has also exhorted “maro-moro” and none of the prosecution witnesses has stated that Gangadhar Mandal was carrying any weapon. On such evidence, he has not been roped in with the aid of section 149 IPC for murder of Amiruddin Ansari, however, the prosecution has proved his presence at the place of occurrence and at the time of occurrence and, therefore, he is liable to be convicted under section 147 IPC. 26. Accordingly, the appellant, namely, Gangadhar Mandal is convicted and sentenced to RI for two years. 27. Now the issue for determination is what offence has been committed by Ainul Ansari, Md. Ishak and Qayum Ansari. 28. Under section 141 IPC an assembly of five or more persons is designated as “unlawful assembly” if the common object of the persons composing that assembly was to commit an act falling under any one of the five clauses under section 141 IPC. The appellants along with others; may be few have been acquitted, formed an unlawful assembly is established by the prosecution. 29. Qayum Ansari is said to have carried a knife and a torch; one of the witnesses has stated that he was carrying a sword. Ainul Ansari was carrying farsa and Md. Ishak was carrying a sword. However, no injury caused by knife has been detected by the doctor on Amiruddin Ansari. 29. Qayum Ansari is said to have carried a knife and a torch; one of the witnesses has stated that he was carrying a sword. Ainul Ansari was carrying farsa and Md. Ishak was carrying a sword. However, no injury caused by knife has been detected by the doctor on Amiruddin Ansari. According to the doctor, the lacerated and incised wounds have not caused death of Amiruddin Ansari and it is not established by the prosecution who has caused these injuries to Amiruddin Ansari. However, presence of these three appellants at the place of occurrence and their participation in the occurrence stand proved from the prosecution’s evidence. The incised wounds were caused to Amiruddin Ansari on his left and right shoulder blade; injury on shoulder of a person cannot be said to be likely to cause death, however, these injuries on Amiruddin Ansari are grievous in nature. 30. The crime weapons have not been recovered and the blood-stained soil has not been sent for forensic examination. During his cross-examination, the Investigating Officer has admitted that he has collected sutli, blood-stained soil and knife from the place of occurrence, however, those materials were not sent for chemical examination. He has also stated that he has not mentioned in the case diary whether blood was found in the field (khalihan). He has admitted that no remnants of bomb explosion or any trampling marks were found by him at the place of occurrence. Normally, the mistakes and lapses during the investigation do not form the basis for acquittal of an accused, however, in a case like the present one the aforesaid mistakes committed by the Investigating Officer have definitely caused prejudice to the appellants, particularly, in a factual scenario like this. The above being the factual scenario, the appellants, namely, Ainul Ansari, Md. Ishak and Qayum Ansari are convicted and sentenced to RI for five years and fine of Rs.5000/- each under section 325 read with section 149 IPC [refer, Lal Mandi v. State of W.B. reported in (1995) 3 SCC 603 ]. 31. However, their conviction and sentence under section 148 IPC are upheld. 32. The appellants, namely, Ainul Ansari, Md. Ishak, Qayum Ansari and Gangadhar Mandal are on bail and, therefore, bail-bonds furnished by them are cancelled. They shall surrender before the court-below to serve the remaining sentence. 31. However, their conviction and sentence under section 148 IPC are upheld. 32. The appellants, namely, Ainul Ansari, Md. Ishak, Qayum Ansari and Gangadhar Mandal are on bail and, therefore, bail-bonds furnished by them are cancelled. They shall surrender before the court-below to serve the remaining sentence. The amount of fine shall be deposited by them within six weeks, failing which they shall further undergo RI for three months each. 33. In the result, Cr. Appeal (D.B.) No. 698 of 2012 is dismissed whereas Cr. Appeal (D.B.) No. 387 of 2012, Cr. Appeal (D.B.) No. 389 of 2012 and Cr. Appeal (D.B.) No. 391 of 2012 are partly allowed. 34. Let lower court records be transmitted to the court concerned, forthwith. 35. Let a copy of the judgment be communicated to the trial court through FAX.