JUDGMENT : KAILASH PRASAD DEO, J. 1. Heard, learned counsel for the appellants, Mr. Navin Kumar Jaiswal and learned counsel for the State, Mr. Sanjay Kumar Srivastava, learned Additional Public Prosecutor. 2. The instant Criminal appeal has been preferred against the judgment of conviction and order of sentence both dated 07.12.1995, passed by learned Additional Sessions Judge, Simdega, in Sessions Trial No. 551 of 1987, whereby all these five accused persons have been convicted for the offence committed and punishable under Section 302/34 of the Indian Penal Code and Appellants, Chandra Naik, Mangal Naik, Mangru Naik and Ashari Devi have further been convicted for the offence committed and punishable under Section 307 of the Indian Penal Code. By the same impugned judgment all the accused persons have been acquitted from charge under Section 148 of the Indian Penal Code and Ashari Devi has also been acquitted from the charge under Section 324 of the Indian Penal Code. The learned trial Court has awarded Imprisonment for life with fine of Rs. 3,000/-and in case of default in payment of fine, further rigorous imprisonment for one year to all the five accused persons, who have been convicted under Section 302/34 of the Indian Penal Code namely, Karma Naik, Chandra Naik, Mangal Naik, Mangru Naik and Ashari Devi. Convicts Mangal Naik, Mangru Naik and Ashari Bai @ Devi have further been sentenced to undergo rigorous imprisonment for 5 years and fine of Rs. 1,000/-each and in default in payment of fine they shall have to undergo further rigorous imprisonment for six months' conviction under Section 307 of Indian Penal Code for attempting to commit murder of Aghnu Naik. Convicts Chandra Naik, Mangal Naik and Mangru Naik have further been sentenced to undergo Rigorous Imprisonment for 5 years and fine of Rs. 1,000/- and in default in payment of fine they shall have to undergo rigorous imprisonment for a period of six months' conviction under Section 307 of Indian Penal Code for attempting to commit murder of Somnath Naik (Sobhnath Naik). All the sentences are directed to run concurrently. During pendency of appeal two appellants namely, Karma Naik and Chandra Naik have died and their appeal have been abated vide order dated 02.11.2018 and as such, present appeal is pending with respect to three appellants namely, Mangal Naik, Mangru Naik and Ashari Devi. 3. All the sentences are directed to run concurrently. During pendency of appeal two appellants namely, Karma Naik and Chandra Naik have died and their appeal have been abated vide order dated 02.11.2018 and as such, present appeal is pending with respect to three appellants namely, Mangal Naik, Mangru Naik and Ashari Devi. 3. The prosecution case, is based upon fardbeyan of the informant, Aghnu Naik(P.W.9) recorded by the Sub-Inspector, A. K. Gupta, Officer-In-Charge of Kurdeg Police Station camp at Hethama Barkadih on 24.06.1986 at 14.00 Hrs. whereby the informant has alleged that in the morning on 24.06.1986 (Tuesday) at 6.00 A.M. when the informant was ploughing his field along with his four brothers namely, Hari Naik, Subodh Naik, Sukha Naik, Somnath Naik and son of Hari Naik, namely, Francis Naik at Hethama Amba toli and were sowing the seeds, in the meantime, Chandra Naik (convicted appellant - abated) son of Karma Naik resident of Hethama Amba toli came with lathi and assaulted the informant and also called his inmates of the house. It is further stated that wife of younger brother of Chandra Naik, Mangal Naik, Mangru Niak and his father Karma Naik came with lathi, Tangi (axe), Baluwa (sharp cutting weapon) and bow-arrow and started assaulting the prosecution parties. It is stated by the informant that prosecution parties in order to save themselves tried to snatch the weapon but since the accused persons were fully prepared with deadly weapon as such, prosecution party sustained serious injury and because of the assault made by them, these persons fell on the ground. Subsequently the villagers removed them to their houses. The informant has further stated that at the village, he got information that his brothers namely, Subodh Naik, Hari Naik, Sukha Naik and nephew Francis Naik have died there. The informant has stated that occurrence has been witnessed by several persons standing there and the occurrence took place because of old enmity and land dispute. 4. On the basis of the 'fardbeyan' of informant, the Police has registered First Information Report bearing Kurdeg P. S. Case No. 12 of 1986 dated 24.06.1986 under Sections 147/148/149/302/307/324 of the Indian Penal Code against five named accused persons namely, Chandra Naik, Mangru Naik, Mangal Naik, Karma Naik and wife of younger brother of Chandra Naik. 5. 4. On the basis of the 'fardbeyan' of informant, the Police has registered First Information Report bearing Kurdeg P. S. Case No. 12 of 1986 dated 24.06.1986 under Sections 147/148/149/302/307/324 of the Indian Penal Code against five named accused persons namely, Chandra Naik, Mangru Naik, Mangal Naik, Karma Naik and wife of younger brother of Chandra Naik. 5. After completion of investigation, Police has submitted charge sheet vide No. 13 of 1986 dated 30.09.1986 under Sections 147/148/149/302/307/324 of the Indian Penal Code against all the five name accused persons Chandra Naik, Mangru Naik, Mangal Naik, Karma Naik and Ashari Devi and thereafter, cognizance of the offence has been taken and case has been committed to the Court of Sessions vide order dated 26.05.1987. 6. The learned trial Court has framed charge against five named accused persons under Sections 148 and 302/149 of the Indian Penal Code. Ashari Bai @ Devi has further been charged under Section 324 of Indian Penal Code for causing hurt to Katrina. Ashari Bai @ Devi has further been charged under Section 307 of Indian Penal Code for assaulting Aghnu. Karma Nayak, Chandra Nayak, Mangal Nayak and Mangaru Nayak have further been charged under Section 302/34 of Indian Penal Code for causing death of Subodh Nayak, Sukhnath Nayak, Hari Nayak and Francis Nayak. Ashari Bai @ Devi has further been charged under Section 324 of Indian Penal Code for causing hurt to Anjora Nayak. Chandra Nayak, Mangal Nayak and Mangaru Nayak have further been charged under Section 307 of Indian Penal Code, for assaulting Sobhnath Nayak. Mangal Nayak and Mangru Nayak have further been charged under Section 307 of Indian Penal Code for assaulting Aghnu. The charges was read over and explained to the accused persons in Hindi on 19.12.1989, to which they have pleaded not guilty and claimed to be tried. 7. The prosecution, in order to prove its case, has examined altogether eleven prosecution witnesses. Anjora Naik has been examined as P.W.1, Katrina Nayak has been examined as P.W.2, Ramesh Dung Dung has been examined as P.W.3, Purni Ram Nayak has been examined as P.W.4, Som Nath Nayak has been examined as P.W.5, Bikram Singh has been examined as P.W.6, Mansukh Jojo has been examined as P.W.7, Siyun Tirki has been examined as P.W.8, Aghnu Naik has been examined as P.W.9, Ajit Majhi has been examined as P.W.10 and Dr. R. P. Singh has been examined as P.W.11. It is relevant to state here that P.W.9, Aghnu Naik, informant of the case, is an injured eye witness. Som Nath Nayak(P.W.5) and Katrina Nayak (P.W.2) are also injured eye witnesses of the case. Anjora Naik(P.W.1) is an eye witness of the case. Ramesh Dung Dung (P.W.3), Puni Ram Nayak (P.W.4), Bikram Singh(P.W.6) and Mansukh Jojo (P.W.7) are advocate clerks and have been examined as formal witnesses, Siyun Tirki (P.W.8) and Ajit Majhi (P.W.10) are hearsay witnesses and Dr. R. P. Singh (P.W.11) is the Medical Officer, who has conducted autopsy on the dead bodies of Hari Naik, Sukhnath Naik, Subodh Naik and Francis Naik, which have been proved and marked as exhibits-5, 6, 7 and 8 respectively. The prosecution, in order to prove its case, has adduced twelve prosecution exhibits. Charge-sheet of the case has been proved by Ramesh Dung Dung (P.W.3) and marked as Exhibit-1, Endorsement on Fardbeyan has been proved by Puni Ram Nayak (P.W.4) and marked as Exhibit -2, Injury report of Aghnu Nayak(P.W.9) has been proved by Bikram Singh (P.W.6) and marked as Exhibit -3, Injury Report of Som Nath Nayak(P.W.5) has been proved by Bikram Singh (P.W.6) and marked as Exhibit -4, Postmortem report of Hari Naik has been proved by Mansukh Jojo (P.W.7) and marked as Exhibit-5, Postmortem report of Sukha Nayak has been proved by Mansukh Jojo (P.W.7) and marked as Exhibit-6, Postmortem report of Subodh Nayak has been proved by Mansukh Jojo (P.W.7) and marked as Exhibit-7, Postmortem report of Francis Naik has been proved by Mansukh Jojo (P.W.7) and marked as Exhibit-8, Signature of Aghnu Nayak(P.W.9) on the fardbeyan has been proved by Aghnu Nayak (P.W.9) and marked as Exhibit -9, Signature of Ajit Majhi(P.W.10) on the fardbeyan has been proved by Ajit Majhi (P.W.10) and marked as Exhibit -9/1, Signature of Siun Tirki(P.W.8) on the fardbeyan has been proved by Ajit Majhi (P.W.10) and marked as Exhibit -9/2, signature of Ajit Majhi(P.W.10) on the carbon copy of inquest report of Sukha Naik, Subodh Nayak, Francis Naik and Hari Naik @ Stephen Nayak have been proved by Ajit Majhi (P.W.10) and marked as Exhibits -9/3, 9/4, 9/5 and 9/6 respectively. Signature of Siun Tirki (P.W.8) on the carbon copy of inquest report of Sukha Naik, Subodh Nayak, Francis Nayak and Hari Naik @ Stephen Nayak have been proved by Ajit Majhi (P.W.10) and marked as Exhibits-9/7, 9/8, 9/9 and 9/10 respectively. Certified copy of order sheet dated 27.07.1985 to 8.11.1985 of Rent fixation case no. 7R8 of 1985-86 has been proved and marked as Exhibit-10, Inquiry Report of Khata No.693 by Circle Officer has been proved and marked as Exhibit -11 and Notice relating to Tax Fixation case no. R8/1978-79 has been proved and marked as Exhibit -12. 8. After closure of prosecution evidence, statement of accused persons was recorded under Section 313 Cr.P.C. on 01.12.1994 and they have been confronted with the materials adduced by the prosecution but they have not stated anything except that they have been falsely implicated in this case. The defence has not examined any witnesses but have brought on record, certain documents, which have been marked as Exhibits-A to C. The written application written by Ajit Majhi dated 24.06.1986 before the Officer-In-Charge Kurdeg, which has disclosed an occurrence of assault, has been proved and marked as Exhibit-A. Four injuries reports of Karma Naik, Mangru Naik, Chandra Naik and Mangal Naik have been proved and marked as Exhibits – B, B/1, B/2 and B/3. The certified copy of order dated 08.11.1985 issued by Circle Officer in rent execution case no. 7R8 of 1985-86 has been proved and marked as Exhibit-C. 9. After hearing learned counsel for the parties and on the basis of materials available on record, learned trial Court has passed the impugned judgment of conviction and order of sentence. Being aggrieved at and dissatisfied with the impugned judgment of conviction and order of sentence, appellants have preferred the present criminal appeal before this Hon’ble Court, assailing the same. 10. Heard, learned counsel for the appellants, Mr. Navin Kumar Jaiswal, Advocate. Learned counsel for the appellants has submitted that the impugned judgment of conviction and order of sentence is bad in law and cannot sustain in the eyes of law. Learned counsel for the appellants has submitted that there is case and counter case between the parties. 10. Heard, learned counsel for the appellants, Mr. Navin Kumar Jaiswal, Advocate. Learned counsel for the appellants has submitted that the impugned judgment of conviction and order of sentence is bad in law and cannot sustain in the eyes of law. Learned counsel for the appellants has submitted that there is case and counter case between the parties. Though from the side of present prosecution parties, four persons have died and two persons have sustained injuries but the accused persons namely, Karma Naik, Mangru Naik, Chandra Naik and Mangal Naik have also sustained injury, which has been brought on record and marked as exhibits-B to B/3, resulting into free fight between the parties. Learned counsel for the appellants has further submitted that initial information regarding assault has been reported before the Officer-In-Charge, Kurdeg Police Station by one Ajit Majhi, who has been examined in present case as P.W.10. The said written application sent before the Officer-In-Charge, Kurdeg Police Station has been proved and marked as exhibit-A. Learned counsel for the appellants has submitted that prosecution has not explained the injury caused upon the accused persons. Learned counsel for the appellants has relied upon a judgment as reported in case of Subramani & Others Vs. State of Tamil Nadu as reported in (2002) 7 SCC 210 , wherein the Hon’ble Apex Court has held that-“Prosecution has an obligation to explain the injury caused upon the accused, though the injuries were simple in nature, does not relieve the prosecution of its obligation, failure to explain the injury on the accused, Court can draw inference as prosecution has not brought the true version of the case .” Learned counsel for the appellants has further submitted that from perusal of annexure -A, written application of Ajit Majhi (P.W.10), disclosing the cognizable occurrence taken place in the village but First Information Report has not been drawn on the basis of such written report. From the fardbeyan of informant, Aghnu Majhi (P.W.9), it is apparent that informant has not disclosed about the injury caused upon accused/appellants, Karma Naik, Mangru Naik, Chandra Naik and Mangal Naik as such, the court below has not taken note of the free fight between the parties and has wrongly convicted the appellants under Sections 302/34 and 307 of the Indian Penal Code. Learned counsel for the appellants has further submitted that Ashari Devi has not been charged under Section 302 of the Indian Penal Code but she has wrongly been convicted by the learned trial Court under Sections 302/34 and 307 of the Indian Penal Code, which is not sustainable in the eyes of law. Learned counsel for the appellants has further submitted that there are vital contradictions in the evidence of the prosecution witnesses, which goes to the root of prosecution case and as such, the appellants may be acquitted from the charge and conviction under Sections 302/34 and 307 of the Indian Penal Code. Learned counsel for the appellants has buttressed his argument on the basis of his submission, that there is case and counter case between the parties and as such, the learned trial Court should have acquitted accused persons of the charges under Sections 302/34 and 307 of the Indian Penal Code, in the background when the investigating officer of the case has not been examined which has caused serious prejudice to the appellants. The impugned judgment of conviction and order sentence is bad in law and cannot sustain in the eyes of law. 12. Heard, Mr. Sanjay Kumar Srivastava, learned Additional Public Prosecutor appearing for the State. Learned counsel for the State has submitted that the impugned judgment of conviction and order of sentence has been passed by the learned trial court on the basis of the materials available on record. Learned State counsel has submitted that the accused persons are the aggressors and to protect themselves, they have also filed a case before the Police, which was registered as Kurdeg P.S. Case No.13 of 1986 corresponding to G.R. No.125 of 1986 against Aghnu Naik and Somnath Naik on the basis of fardbeyan of Ashri Devi, which was registered under Sections 307 /34 I.P.C., the accused persons, namely, Aghnu Naik (informant of the present case) and Somnath Naik (injured of the present case) have been acquitted by the learned Trial Court, as such, the accused persons of the present case are the aggressors of the occurrence, as their case initiated against the present prosecution party ended in acquittal. Learned State counsel has further submitted that in the present case, accused, Chandra Nayak came to the place of occurrence with lathi and started assaulting the informant (P.W.9-Aghnu Naik) and also called his relatives who came with tangi, balua, bow-arrow and lathi and indiscriminately assaulted the prosecution party. Learned State counsel has further submitted that because of intention and act of the accused persons, four persons of the prosecution party, namely, Subodh Nayak, Sukhnath Nayak, Hari Nayak and Francis Nayak have died at the spot due to the injuries caused upon them and the informant (Aghnu Naik – P.W.9) and Somnath Nayak (P.W.5) have sustained injuries, who were treated by the Doctor and their injury reports have been brought on record. Learned State counsel has further submitted that since act of the accused persons, has been committed with an intention, learned trial court has rightly convicted the accused persons under Sections 302/34 and 307 of the Indian Penal Code, though charge against accused, Ashari Devi has not been framed under Sections 302/34 I.P.C. which was only framed against the accused, Karma Naik, Chandra Naik, Mangal Naik and Mangru Naik, but the charge under Sections 302/149 I.P.C. has also been framed against all the accused persons including Ashari Devi. Learned State counsel has further submitted that omission in framing of charge is not fatal so far as accused, Ashari Devi is concerned. Learned counsel for the State in support of his submission, has referred Section 464 Cr.P.C. which reads as follows:- Section 464 in The Code of Criminal Procedure, 1973 reads as under:- “464. Effect of omission to frame, or absence of, or error in, charge. (1) No finding, sentence or order by a Court of competent jurisdiction shall be deemed invalid merely on the ground that no charge was framed or on the ground of any error, omission or irregularity in the charge including any misjoinder of charges, unless, in the opinion of the Court of appeal, confirmation or revision, a failure of justice has in fact been occasioned thereby. (2) If the Court of appeal, confirmation or revision is of opinion that a failure of justice has in fact been occasioned, it may- (a) in the case of an omission to frame a charge, order that a charge be framed and that the trial be recommended from the point immediately after the framing of the charge; (b) in the case of an error, omission or irregularity in the charge, direct a new trial to be had upon a charge framed in whatever manner it thinks fit: Provided that if the Court is of opinion that the facts of the case are such that no valid charge could be preferred against the accused in respect of the facts proved, it shall quash the conviction.” Learned counsel for the State has further submitted that though charge has been framed against the four accused persons, namely, Karma Naik, Chandra Naik, Mangal Naik and Mangru Naik under Sections 302/34 of the Indian Penal Code, but charge against all the accused persons including Ashari Devi has also been framed under Sections 302/149 of the Indian Penal Code. The material produced in the Court is sufficient to constitute the charge in view of judgment reported in Dahari and Ors. Vs. State of Uttar Pradesh (2012) 10 SCC 256 and omission in framing of charge is not fatal for the prosecution case. Learned counsel for the State has further submitted that from material adduced by the prosecution, place of occurrence is proved as agricultural field of the informant at Village Hethama Amba toli and as such, the place of occurrence has rightly been proved by the prosecution. Learned counsel for the State has further submitted that all the eleven prosecution witnesses have been cross-examined by the defence, at length, but nothing has been elucidated to disbelieve the prosecution case, so far as the place of occurrence is concerned. The manner of occurrence has also been explained by the prosecution-witnesses, as they have seen the occurrence and there may be some minor contradictions but that will not go to the root of the prosecution case. The minor contradiction has been cropped up, because of the fact that witnesses have seen the occurrence and explained as per their expression. The manner of occurrence has also been explained by the prosecution-witnesses, as they have seen the occurrence and there may be some minor contradictions but that will not go to the root of the prosecution case. The minor contradiction has been cropped up, because of the fact that witnesses have seen the occurrence and explained as per their expression. If the witnesses were facing towards north side, they will see part of the occurrence, but they could not see which is behind their back and as such, minor contradictions are not fatal for the prosecution case. Learned counsel for the State has further submitted that four persons have died and their inquest reports have been brought on record and their post-mortem reports have also been proved by the competent witness, Dr. R. P. Singh (P.W.11), who has conducted autopsy on the dead-bodies of Subodh Naik, Sukha Naik, Hari Naik and Francis Naik. Learned counsel for the State has further submitted that the injuries caused upon Somnath Naik (P.W.5) and Aghnu Naik (P.W.9) have also been brought on record and, as such, learned Trial Court has rightly convicted the appellants under Sections 302/34 and 307 of the Indian Penal Code. Learned counsel for the State has further submitted that accused, Chandra Naik came with lathi in the paddy field of the informant, where the informant and other prosecution witnesses were ploughing the land and sowing the seeds. The act of accused, Chandra Naik shows that he has come with a pre-plan having a weapon of assault (lathi) and started assaulting the informant and also called the inmates of the house, namely, Mangru Naik, Mangal Naik, Karma Naik and Ashari Devi who also came with deadly weapons, such as, balua, tangi, bow-arrow which shows that these accused persons have pre-meditated the plan and acted upon that plan. Accused, Chandra Naik initially came with lathi and started assaulting the informant and on his brawl, other inmates of the house came with deadly weapons and indiscriminately assaulted the prosecution party causing death of four of the prosecution party at the spot and injuries to two persons, namely, Somnath Naik (P.W.5) and Aghnu Naik (P.W.9). Accused, Chandra Naik initially came with lathi and started assaulting the informant and on his brawl, other inmates of the house came with deadly weapons and indiscriminately assaulted the prosecution party causing death of four of the prosecution party at the spot and injuries to two persons, namely, Somnath Naik (P.W.5) and Aghnu Naik (P.W.9). The other prosecution witnesses, namely, Katrina Naik (P.W.2) has also sustained injury, but the injury report of Katrina Naik has not been brought on record, as such, the learned trial court has acquitted the accused persons from the charge under Section 324 I.P.C. Learned counsel for the State has further submitted that there are four eyewitnesses to the occurrence, out of which, three are injured witnesses, namely, Aghnu Naik (informant-P.W.9), Somnath Naik (P.W.5) and Katrina Naik (P.W.2). Anjora Naik (P.W.1) is none-else than daughter of the deceased, Subodh Naik. The evidence which has been adduced by these witnesses are pointing towards guilt of these accused persons, who have committed murder of four persons and attempted to kill Aghnu Naik (P.W.9), Somnath Naik (P.W.5) and as such, the learned trial court has rightly convicted the appellants under Section 302/34 and 307 I.P.C. Learned counsel for the State has further submitted that the judgment relied upon by the learned counsel for the appellants i.e. case of Subramani (supra) is not applicable in the facts and circumstances of the present case, as the informant has categorically disclosed that in the attack when they were trying to safeguard themselves, the accused persons have also sustained injuries, as such, the prosecution has not suppressed any fact so as to have any doubt about the authenticity of present prosecution case. Learned counsel for the State has thus, submitted that the impugned judgment of conviction and order of sentence has been passed by the learned trial court on the basis of the materials available on record and the same does not warrant any interference by this Hon'ble Court. 13. Heard, Mr. Navin Kumar Jaiswal, learned counsel appearing for the appellants and learned counsel for the State, Mr. 13. Heard, Mr. Navin Kumar Jaiswal, learned counsel appearing for the appellants and learned counsel for the State, Mr. Sanjay Kumar Srivastava, learned Additional Public Prosecutor and perused the materials brought on record, including First Information Report, framing of charge, evidence of all the eleven prosecution witnesses, twelve prosecution exhibits, statement of accused/appellants recorded under Section 313 Cr.P.C, as well as defence exhibits A to C and the impugned judgment of conviction and order of sentence. This Court has scanned and scrutinized the evidence of prosecution witnesses. From perusal of evidence of prosecution witness, Anjora Naik (P.W.1), it is apparent that she is an eye-witness to the occurrence, who has categorically stated that she was present along with Katrina Naik (P.W.2). While going she saw that accused Chandra Naik with tangi and assaulted her father-Subodh Naik on his head, who fell on the ground and died immediately. Mangru Naik came with balua and assaulted her uncle Somnath Naik (P.W.5), on his back causing injury which has been found by the Medical Officer (P.W.11-Dr. R. P. Singh). Post-mortem report of Subodh Naik has been proved and marked as Exhibit-7 and injury report of Somnath Naik has been proved and marked as Exhibit-4. From perusal of the evidence of P.W.2 (Katrina Naik), it appears that she has supported the prosecution case and statement of P.W.1 (Anjora Naik). She has stated that Somnath Naik (P.W.5) was assaulted by the accused Mangru Naik by means of balua on the back and Mangal Naik assaulted by means of balua on the shoulder of Somnath Naik due to which Somnath Naik (P.W.5) started fleeing away, upon which, accused Chandra Naik, shot arrow which hit on the back of Somnath Naik. This witness has further stated that when Hari Naik came for protection of Subodh Naik, then Karma Naik tried to assault Hari Naik by means of tangi, but that missed Hari Naik and hit the co-accused, Chandra Naik. The injury reports of Somnath Naik has been proved and marked as Exhibit-7. P.W.1 (Anjora Naik) and P.W.2 (Katrina Naik) have been cross-examined by the defence, at length, but nothing has been elucidated by the defence to disbelieve the prosecution case. Ramesh Dung Dung has been examined as P.W.3. He is a formal witness, being an Advocate Clerk. The injury reports of Somnath Naik has been proved and marked as Exhibit-7. P.W.1 (Anjora Naik) and P.W.2 (Katrina Naik) have been cross-examined by the defence, at length, but nothing has been elucidated by the defence to disbelieve the prosecution case. Ramesh Dung Dung has been examined as P.W.3. He is a formal witness, being an Advocate Clerk. He has proved the charge-sheet in the hand-writing and signature of Sub Inspector of Police, A. K. Gupta, which has been marked as Exhibit-1. Puni Ram Naik, another formal witness and an Advocate Clerk has been examined as P.W.4. He has proved the endorsement of Officer-In-Charge, Kurdeg Police Station on the fardbeyan which has been marked as Exhibit-2. Somnath Naik, is an injured witness, who has been examined as P.W.5. This witness has stated that Chandra Naik has assaulted Subodh Naik by means of tangi on his head causing injury due to which he fell down and died. On raising brawl by Chandra Naik, Karma Naik, Mangru Naik, Mangal Naik and Ashari Devi came with balua, tangi, bow and arrow and Mangru Naik has assaulted this witness, Somnath Naik by means of balua on the left side of the shoulder. The injury was shown by the witness in the court. Mangal Naik assaulted by means of balua on the back of this witness. The injury was again shown by the witness in the court. Witness, Somnath Naik has further stated that Chandra Naik shot arrow, which hit on the back and thereafter he fled away. This witness has also shown presence of Anjora Naik (P.W.1) and Katrina Naik (P.W.2). This witness has also stated that he was treated at Simdega Hospital. Nothing has been elucidated by the defence during cross-examination of this witness to disbelieve the evidence of P.W.5 (Somnath Naik). Bikram Singh, a formal witness being an Advocate Clerk has been examined as P.W.6. He has proved injury reports of Aghnu Naik and Somnath Naik dated 25.06.1986 and 26.06.1986, which have been proved and marked as Exhibits-3 and 4, in the hand-writing and signature of Dr. R. P. Singh (P.W.11). Mansukh Jojo, another formal witness, being an Advocate Clerk has been examined as P.W.7. He has proved injury reports of Aghnu Naik and Somnath Naik dated 25.06.1986 and 26.06.1986, which have been proved and marked as Exhibits-3 and 4, in the hand-writing and signature of Dr. R. P. Singh (P.W.11). Mansukh Jojo, another formal witness, being an Advocate Clerk has been examined as P.W.7. This witness has also proved the post-mortem reports of Hari Naik, Sukhnath Naik, Subodh Naik, and Francis Naik, all dated 25.06.1986, which have been proved and marked as Exhibits-,5, 6, 7 and 8, in the hand-writing and signature of Dr. R. P. Singh (P.W.11). Siyun Tirky has been examined as P.W.8. He is Up-Mukhiya of the village. This witness has seen the injured, Somnath Naik (P.W.5) and Aghnu Naik (P.W.9) in injured conditions and informed the Police and thereafter, Police came and inquest report was prepared. This witness has been examined as a hearsay witness. Aghnu Naik, informant of the case and an injured witness has been examined as P.W.9. On the basis of fardbeyan of this witness, the Police has instituted Kurdeg P.S. Case No.12 of 1986 against the named accused persons. This witness has stated that when he was cultivating his field along with his brothers, Hari Naik, Somnath Naik, Sukha Nayak and Subodh Naik and nephew, Francis Naik, the accused persons, namely, Chandra Naik, Karma Naik, Mangru Naik, Mangal Naik and Ashari Devi started assaulting. This witness has stated that he saw Sukha has been assaulted by Mangru Naik having balua, Mangal Naik also having balua and Chandra Naik having tangi and because of the assault made by these three persons, said Sukha Nayak died at the spot. Thereafter this witness, Aghnu Naik (P.W.9) has been assaulted by Mangru Naik on his right temple by means of balua and Mangal Naik by means of balua on the arm and Ashari Devi shot arrow which hit on the right side of ribs, due to which, this witness fall on the ground and became unconscious. After regaining consciousness, this witness has seen the dead-bodies of Subodh Naik, Hari Naik, Sukhnath Naik and Francis Naik. This witness has proved his signature on the fardbeyan, which has been marked as Exhibit-9. This witness has stated that he has seen the accused persons, namely, Karma Naik, Chandra Naik, Mangal Naik, Mangru Naik and Ashari Devi. After regaining consciousness, this witness has seen the dead-bodies of Subodh Naik, Hari Naik, Sukhnath Naik and Francis Naik. This witness has proved his signature on the fardbeyan, which has been marked as Exhibit-9. This witness has stated that he has seen the accused persons, namely, Karma Naik, Chandra Naik, Mangal Naik, Mangru Naik and Ashari Devi. Initially he was assaulted by Mangru Naik by means of tangi and balua on his head, back and left arm and after regaining consciousness, he saw dead-bodies of four persons. The defence has cross-examined him but nothing has been elucidated to disbelieve the prosecution case. Ajit Majhi (P.W.10), Sarpanch of the Village, has been examined as P.W.10. This witness has stated that after hearing such fight and bloodshed, he has informed the Police through dalpati through written application and thereafter, Police came to the place of occurrence. The said written report has been proved and marked as Exhibit-A. Signature of this witness and signature of Siun Tirki (P.W.8) on the fardbeyan have been proved and marked as Exhibits-9/1 and 9/2 respectively. The inquest reports of Hari Naik, Francis Naik, Subodh Naik and Sukhlal Naik have been prepared by the Sub Inspector of Police, in carbon copy confirming his signatures on all the four inquest reports, which have been proved and marked as Exhibits-9/3 to 9/6 and the signatures of another inquest witness (P.W.8-Siyun Tirkey) made on the same have been proved and marked as Exhibits -9/7 to 9/10. This witness has further proved his written application sent to the Police Station as Exhibit-A. All these materials are brought on record. Nothing has been elucidated during cross-examination of this witness by the defence to dent in the prosecution case. Dr. R. P. Singh, the Medical Officer who has conducted autopsy on the dead-bodies of Francis Naik, Subodh Naik, Sukha Naik and Hari Naik on 25.06.1986 has found following injures : On the person of deceased, Hari Naik, the following external and internal injuries were detected : Rigor mortis were present in all limbs. (i) One incised wound 3”x 1”x 3” horizontally on the forehead. The underlying bone and brain membrane were found cut and the brain matter were seen coming out. (ii) One incised wound 3”x1/2”x 2½” transversely on the right temporal region. On opening the underlying bone, brain membrane were found cut and brain matter was seen coming out. Dr. (i) One incised wound 3”x 1”x 3” horizontally on the forehead. The underlying bone and brain membrane were found cut and the brain matter were seen coming out. (ii) One incised wound 3”x1/2”x 2½” transversely on the right temporal region. On opening the underlying bone, brain membrane were found cut and brain matter was seen coming out. Dr. R. P. Singh (P.W.11) has opined that all the injuries were antemortem in nature and might have been caused by some sharp cutting weapon. Death must have occurred instantaneously. Age of injury and death within 24 to 40 hours. Post-mortem report of Hari Naik @ Stephen Naik has been proved and marked as Exhibit-5. On the person of deceased, Sukha Naik, the following injuries were detected : Rigor mortis were present in all limbs. (i) One incised piercing wound 1”x1/2”x 2” on the left side of the chest on upper portion. On opening the intercoastal muscles and upper portion of left lung were found cut. (ii) One incised wound 2½”x1”x skin deep on the back of left elbow; (iii) One incised wound 2½”x 1”x 2” on the right side of back on lower portion. On opening the skin, muscles and liver were found cut. Dr. R. P. Singh (P.W.11) has opined that all the injuries were ante-mortem in nature and injury no.(i) caused by sharp piercing weapon and others by sharp-cutting weapon. Death might have occurred instantaneously. Age of injury and death within 24 to 40 hours. Post-mortem report of Sukha Naik has been proved and marked as Exhibit-6. On the person of deceased, Subodh Naik, the following injuries were detected : Rigor mortis were present in all limbs. (i) One incised wound 2½”x1”x3” on the left temporal region. On opening the underlying bone and brain membrane were found cut and brain matter were seen coming out. (ii) One incised wound 2”x1”x2” just on the left side of face near eye involving left eye and left nasal wall. The left eye was found completely damaged and left maxillary bone and muscles were found cut. Dr. R. P. Singh (P.W.11) has opined that all the injuries were ante-mortem in nature and might have been caused by sharp-cutting weapon, such as tangi. The death must have occurred instantaneously. Age of injury and death all within 24 to 40 hours. Post-mortem report of Subodh Naik has been proved and marked as Exhibit-7. Dr. R. P. Singh (P.W.11) has opined that all the injuries were ante-mortem in nature and might have been caused by sharp-cutting weapon, such as tangi. The death must have occurred instantaneously. Age of injury and death all within 24 to 40 hours. Post-mortem report of Subodh Naik has been proved and marked as Exhibit-7. On the person of deceased, Francis Naik, following external and internal injuries were detected :- 1. Rigor mortis were present in all limbs. 2(i) One incised wound 3”x 1”x3” on the left temporal region just above the left ear. On opening the temporal bone brain membrane was found cut and the brain matter were found coming out. (ii) One incised wound 3”x1/2”x 2½ “in the middle of head. On opening the bone and brain membrane were found cut and brain matter were found coming out. Dr. R. P. Singh (P.W.11) has opined that all the injuries were ante-mortem in nature and might have been caused by sharp-cutting weapon such as tangi. The death must have occurred instantaneously. Age of injury and death within 24 to 40 hour. Post-mortem report of deceased, Francis Naik has been proved and marked as Exhibit-8. In addition to post-mortem reports of four deceased persons, Francis Naik, Subodh Naik, Sukha Naik and Hari Naik @ Stephen Naik, this witness (P.W.11) has examined Aghnu Naik and Somnath Naik, injured of the case on the same day i.e. 26.06.1986 and injury reports of Aghnu Naik (P.W.9) and Somnath Naik (P.W.5) have also been brought on record. Dr. R. P. Singh (P.W.11) has found following injuries on the person of injured, Aghnu Naik (P.W.9) which are as follows :- (I) One incised wound 4”x1”x skin deep obliquely just above the right ear. (ii) One incised wound 2½”x 1/2”x1/2” on the lateral surface of left upper arm. (iii) One incised wound 4 “x 1/2”x 1/2” on the back of left shoulder joint. (iv) One incised piercing wound 1”x1/2”x1/2” on the lower portion of right side of chest (v) One incised wound 1½ “x1/2”x1/2” on the lateral surface of left upper leg. (vi) One incised wound 3”½ x1/2”x1/2” horizontally on the left side of back on lower portion. Dr. R. P. Singh (P.W.11) has opined that all injuries were simple in nature. Injury no.(iv) caused by some sharp piercing weapon and others by sharp-cutting weapon. Age of injuries :-all within 36 to 48 hours. (vi) One incised wound 3”½ x1/2”x1/2” horizontally on the left side of back on lower portion. Dr. R. P. Singh (P.W.11) has opined that all injuries were simple in nature. Injury no.(iv) caused by some sharp piercing weapon and others by sharp-cutting weapon. Age of injuries :-all within 36 to 48 hours. Injury report of Aghnu Naik (P.W.9) has been proved and marked as Exhibit-3. Dr. R. P. Singh (P.W.11) has found following injuries on the person of injured, Somnath Naik (P.W.9) which are as follows :- (1) One incised wound 4”x1½ “x 1½ “on the left side of neck at the root cutting muscles and blood vessels. (2) One incised wound 2½ “X 1”x bone deep on the left temporal region. The temporal bone and brain membrane were also cut. (3) One Horizontal incised wound 3”x1”x1” on the lower portion of left side of back (4) One incised wound 2 ½” x1/2” x skin deep on the upper portion of left side of back. Dr. R. P. Singh (P.W.11) has opined that injury No.(1) and (2) are grievous in nature and others are simple. All caused by some sharp-cutting weapon. Age of injuries – All within 36 to 48 hours. Injury report of Somnath Naik (P.W.5) has been proved and marked as Exhibit-4. This witness was cross-examined at length, but nothing has been elucidated to disbelieve the prosecution case. This witness has also examined the injury of accused of the case namely, Karma Naik, Mangru Naik, Chandra Naik, Mangal Naik and the injury reports of the same have been proved and marked as Exhibits-B, B/1, B/2 and B/3 respectively. From perusal of the injury reports of the accused persons coupled with the fact that in the case instituted by the accused persons, the present prosecution parties who were accused have been acquitted by the learned trial court and no acquittal appeal has been preferred by the informant, Ashari Devi or any of the injured against the judgment of acquittal, as such, this Court is of the opinion that the accused persons, Chandra Naik, Mangal Naik, Mangru Naik, Karma Naik and Ashari Devi are the aggressors of the occurrence. The informant (P.W.9-Aghnu Naik) has categorically stated in his fardbeyan that the accused persons started assaulting them by means of deadly weapon and they have tried to snatch the same and due to which the accused persons have also sustained injuries. The informant (P.W.9-Aghnu Naik) has categorically stated in his fardbeyan that the accused persons started assaulting them by means of deadly weapon and they have tried to snatch the same and due to which the accused persons have also sustained injuries. Exhibits-B Series prove the same, coupled with the fact that the statement of the informant (P.W.9-Aghnu Naik) establishes that he has brought true version of the occurrence before the Court, as such, the judgment relied upon by the learned counsel for the appellants i.e. case of Subramani (Supra) is not applicable in this case. This Court has relied upon decision rendered in the case of Dahari and Ors. Vs. State of Uttar Pradesh, reported in (2012) 10 SCC 256 , Paras 16 to 23 reads as follows : 16. Another question worth consideration is whether the appellants can be convicted under Section 302 read with Section 149 IPC in the event that the High Court has acquitted three persons among the accused and the number of convicts has thus, remained at a number that is less than 5, which is in fact, necessary to form an unlawful assembly as described under Section 141 IPC. 17. This Court in Amar Singh v. State of Punjab, AIR 1987 SC 826 , held as under: “9...As the appellants were only four in number, there was no question of their forming an unlawful assembly within the meaning of Section 141 IPC. It is not the prosecution case that apart from the said seven accused persons, there were other persons who were involved in the crime. Therefore, on the acquittal of three accused persons, the remaining four accused, that is, the appellants, cannot be convicted under Section 148 or Section 149 IPC for any offence, for, the first condition to be fulfilled in designating an assembly an “unlawful assembly” is that such assembly must be of five or more persons, as required under Section 141 IPC. In our opinion, the convictions of the appellants under Sections 148 and 149 IPC cannot be sustained.” 18. Similarly, in Nagamalleswara Rao (K.) & Ors. v. State of A. P, this Court observed:(SCC p. 537, para 8) “8. In our opinion, the convictions of the appellants under Sections 148 and 149 IPC cannot be sustained.” 18. Similarly, in Nagamalleswara Rao (K.) & Ors. v. State of A. P, this Court observed:(SCC p. 537, para 8) “8. However, the learned Judges overlooked that since the accused who are convicted were only four in number and the prosecution has not proved the involvement of other persons and the courts below have acquitted all the other accused of all the offences, Section 149 cannot be invoked for convicting the four appellants herein…. It is not the prosecution case that apart from the said 15 persons there were other persons who were involved in the crime. When the eleven other accused were acquitted it means that their involvement in the offence had not been proved. It would not also be permissible to assume or conclude that others named or unnamed acted conjointly with the charged accused in the case unless the charge itself specifically said so and there was evidence to conclude that some others also were involved in the commission of the offence conjointly with the charged accused in furtherance of a common object. 19. Similarly, this Court in Mohd. Ankoos v. Public Prosecutor, held as under:(SCC p. 107, para 35) “35. Section 148, IPC creates liability on persons armed with deadly weapons and is a distinct offence and there is no requirement in law that members of unlawful assembly have also to be charged under Section 148 IPC for legally recording their conviction under Section 302 read with Section 149 IPC. However, where an accused is charged under Section 148 IPC and acquitted, conviction of such accused under Section 302 read with Section 149 IPC could not be legally recorded. We find support from a four Judge Bench decision of this Court in Mahadev Sharma v. State of Bihar...” 20. 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. 21. In Nethala Pothuraju v. State of A.P., 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. 22. A similar view has been re-iterated in Jivan Lal v. State of M.P., and Hamlet v. State of Kerala, [See also: Willie (William) Slaney V. State of M.P., Fakhruddin v. State of M. P., Gurpreet Singh v. State of Punjab, Sanichar Sahni v. State of Bihar, S. Ganesan v. Rama Raghuraman and Darbara Singh v. State of Punjab] 23. In view of the above, we do not find any force in the aforementioned submissions of the appellants and the same are not worth acceptance.” We have also perused the materials brought on record. It appears that four persons have been killed by the accused persons. The accused persons came with lethal weapons having common intention to assault the prosecution parties in furtherance of their common intention. Chandra Naik having tangi assaulted on the head of the father P.W.1(Anjora Nayak). Chandra Naik also shot arrow on the back of Somnath Naik (P.W.5). Mangru Naik (appellant) has assaulted Somnath Naik (P.W.5) by means of balua on the back and also assaulted Hari Naik. Sukhnath Naik has been assaulted by Mangal Naik by balua and Aghnu Naik (P.W.9 -informant) has assaulted by Mangru Naik by balua on the temple. Mangal Naik assaulted by means of balua on the shoulder of Somnath Naik. Mangru Naik (appellant) has assaulted Somnath Naik (P.W.5) by means of balua on the back and also assaulted Hari Naik. Sukhnath Naik has been assaulted by Mangal Naik by balua and Aghnu Naik (P.W.9 -informant) has assaulted by Mangru Naik by balua on the temple. Mangal Naik assaulted by means of balua on the shoulder of Somnath Naik. Sukhnath Naik on the waist and Aghnu Naik on the thigh have been assaulted by Mangal Naik by means of balua. Karma Naik assaulted by means of tangi on the head of Francis Naik causing his death. Karma Naik further attempted on Hari Naik, which got missed but hit Chandra Naik. Ashari Devi shot arrow on Aghnu Naik on his ribs and Katrina assaulted by means of balua on the right hand thumb. These corresponding injuries have been found on the persons of deceased, Subodh Naik, Sukhnath Naik, Hari Naik and Francis Naik and also on injured, Aghnu Naik (P.W.9) and Somnath Naik (P.W.5), The injury report of P.W.2 (Katrina Naik) has not been brought on record, as such, the learned trial court has only convicted the appellants under Sections 302/34 and 307 of the Indian Penal Code and acquitted the accused, Ashari Bai @ Devi only under Section 324 I.P.C. On conjoint reading of entire prosecution materials, this Court has found that accused, Chandra Naik initially came to the place of occurrence being an aggressor, started assaulting the informant and others and also called his family members, namely, Karma Naik, Mangal Naik, Mangru Naik and Ashari Devi. All the accused persons armed with deadly weapons like tangi, bow and arrow, balua and lathi indiscriminately assaulted the prosecution party on the land which belongs to the prosecution party and the counter case instituted by the accused persons have been found to be false and thus, the prosecution party being accused of that case have been acquitted by the learned trial court. The accused persons are aggressors, the place of occurrence has been proved by the prosecution and there assault has caused death of four persons whose post-mortem reports have been brought on record with injury reports of two persons, namely, Aghnu Naik (P.W.9) and Somnath Naik (P.W.5). The legal material evidence are sufficient to hold that learned trial court has rightly convicted the accused/appellants under Sections 302/34 and 307 of the Indian Penal Code. The legal material evidence are sufficient to hold that learned trial court has rightly convicted the accused/appellants under Sections 302/34 and 307 of the Indian Penal Code. This Court has also taken note of the judgment in the case of Dahari and Ors. Vs. State of Uttar Pradesh, reported in (2012) 10 SCC 256 , wherein it has been held by the Hon'ble Apex Court that in a case where the prosecution fails to prove that number of members of an unlawful assembly are 5 or more, the court can simply convict the guilty persons with aid of section 341 I.P.C., provided that there is adequate evidence on record to show that such accused shared a common intention to commit the crime in question. Non-examination of the Investigating officer has not caused any prejudice to the appellants, as the accused persons while cross-examining the witnesses, have not given any suggestion so as to take contradiction from the Investigating officer. Under the aforesaid circumstances, as discussed above, this Court on re-appreciation of the entire prosecution evidence and the materials brought on record, does not find any cogent reason to interfere with the impugned judgment of conviction and order of sentence. Accordingly, the judgment of conviction and order of sentence both dated 07.12.1995, passed by learned Additional Sessions Judge, Simdega, in Sessions Trial No. 551 of 1987 is hereby upheld and affirmed. In the result, the present Criminal Appeal stands dismissed. Consequently, the appellants, Mangal Naik, Mangru Naik and Ashari Devi are directed to surrender before the court below to serve out rest of the sentence forthwith, failing which, the learned trial court is at liberty to take all coercive steps to secure the presence of the appellants to serve out rest of the sentence. 16. Let L.C.R. along with a copy of this judgment be sent to the concerned trial court forthwith.