JUDGMENT : Shree Chandrashekhar, J. In a judgment running across Fifty-nine pages, the learned Sessions Judge, Lohardaga has held that Bandi Bhagtain, Chinta Devi, Phuldeo Bhagat, Gauri Devi and Parmeshwari Devi are truthful and reliable witnesses. They have identified Sunil Oraon, Sakra Oraon, Jage @ Jageshwar Oraon, Kali Munda and Deonath Oraon in the Court as the persons who had intruded into the house along with unidentified extremists and forcibly abducted Bishun Deo Bhagat @ Vishnu Deo with an intention to murder. Observing that the investigation in the case was conducted in the most perfunctory manner but it would not affect the prosecution case a bit and that failure of the prosecution to hold Test Identification Parade was a mere lapse during the investigation, the learned trial Judge has held that the prosecution has proved the charges under sections 302/149, 364/149 and 148 of the Indian Penal Code (in short, IPC) against Kali Munda, Sakra Oraon, Jage @ Jageshwar Oraon and Sunil Oraon. The learned trial Judge has held that the accused persons cannot be prosecuted for the charge under section 27 of the Arms Act for want of necessary sanction and the charge under section 17/18 of the Criminal Law Amendment Act besides being vague was not proved by the prosecution. The learned trial Judge has further held that the prosecution witnesses did not identify Mathia Oraon, Deothan Oraon, Paltu Oraon and Bhonu Oraon in the dock and, therefore, they are entitled to be acquitted. 2. In S.T. No. 187/2006 with S.T. No. 05/2007, the appellants have been convicted and sentenced under section 148 IPC for S.I. for six months and a fine of Rs.2000/- each and R.I. for life and a fine of Rs.5000/- each, on each count under sections 302/149 IPC and 364/149 IPC, with a default stipulation to undergo S.I. for six months. 3. It was one evening in the autumn of 2005, at around 07:30 PM, Bishun Deo Bhagat was sleeping in his room. Around that time his wife was cooking food and his mother, brother and sister were sitting in the courtyard. Deonath Bhagat on the pretext that his friends have come to meet him asked his wife to open the door. It was one evening in the autumn of 2005, at around 07:30 PM, Bishun Deo Bhagat was sleeping in his room. Around that time his wife was cooking food and his mother, brother and sister were sitting in the courtyard. Deonath Bhagat on the pretext that his friends have come to meet him asked his wife to open the door. With two unknown persons he entered the house and inquired about Bishun Deo Bhagat and in the meantime 7-8 unknown persons carrying guns and rifle came inside the house and started searching for Bishun Deo Bhagat. They caught him in the room, dragged in the courtyard and tied his hands with a towel (gamchha). The wife, mother and sister of Bishun Deo Bhagat started begging to the accused persons but they pushed them inside, locked the doors and took away Bishun Deo Bhagat. When they raised hulla Gauri Devi came and opened the door. They started searching for Bishun Deo Bhagat but could not find him and in the morning his dead body was found lying near Makandu More with firearm injuries. Near the dead body an empty cartridge and a letter written on behalf of Communist Party of India (Maowadi) were found. Parmeshwari Devi gave her fardbeyan at about 09:15 AM on 19.09.2005 at Makandu More and on that basis Kuru P.S. Case No.106 of 2005 was lodged under sections 147/148/149/323/ 326/302/364 IPC, section 27 of the Arms Act and section 17/18 of the Criminal Law Amendment Act, against 15-20 unknown extremists. In her fardbeyan the informant raised a suspicion against Sunil Oraon, Jageshwar Oraon, Kali Munda and Deonath Bhagat who had a grudge against her husband. They were on inimical terms with Bishun Deo Bhagat and had connections with the extremists. The informant expressed a doubt that these persons with the help of the extremists have murdered her husband and claimed that she can identify them, some of whom were in plain clothes and some in fatigues. 4. After the investigation a charge-sheet was submitted on 17.01.2006 against Sunil Oraon, Kali Munda, Sakra Oraon, Deothan Oraon, Jageshwar Oraon, Sanjay Mahli and Paltu Oraon while the investigation against the other accused persons was kept pending. The above-named accused persons have faced the trial in S.T. No. 187 of 2006. 4. After the investigation a charge-sheet was submitted on 17.01.2006 against Sunil Oraon, Kali Munda, Sakra Oraon, Deothan Oraon, Jageshwar Oraon, Sanjay Mahli and Paltu Oraon while the investigation against the other accused persons was kept pending. The above-named accused persons have faced the trial in S.T. No. 187 of 2006. Later on, a charge-sheet was submitted against Mathia Oraon on 30.10.2006; he is the sole accused put on trial in S.T. No. 05 of 2007. Common charges under sections 148, 364 and 302 IPC, section 27 of the Arms Act and section 17/18 of the Criminal Law Amendment Act were framed against Mathia Oraon, Deothan Oraon, Bhuni Oraon, Sakra Oraon, Jageshwar Oraon, Sunil Oraon, Kali Munda and Paltu Oraon vide order dated 27.08.2008 and denying the charges they have claimed trial. Subsequently, after separating the trial against Sanjay Mahli, S.T. No. 05 of 2007 was amalgamated with S.T. No. 187 of 2006 and both the sessions cases were tried together. Deonath Bhagat, who was summoned under section 319 Cr.PC, was found juvenile and, accordingly, the case-record was split-up and referred to the Juvenile Justice Board, Lohardaga. During the trial the prosecution has examined 15 witnesses, out of whom Bandi Bhagtain PW-1, Chinta Devi PW-2, Phuldeo Oraon PW-3, Parmeshwari Devi PW-4, Gauri Devi PW-5 and Sukhdeo Bhagat PW-8 are close relatives of Bishun Deo Bhagat. PW-14 is the Investigating Officer who has deposed in the Court that at Makandu More he recorded the statement of Parmeshwari Devi on 19.09.2005 and on that basis Kuru P.S. Case No. 106 of 2005 was lodged. During the investigation he has recorded the confessional statements of Sunil Oraon, Deothan Oraon, Jageshwar Oraon, Sakra Oraon and Kali Oraon. 5. PW-1, Bandi Bhagtain is the mother of Bishun Deo Bhagat. She has deposed in the Court that at about 07:00 PM she was cooking food. About that time Deonath came and asked to open the door. When her daughter-in-law Parmeshwari Devi opened the door Deonath with two persons entered the house and tied her son with a towel (gamchha). They took him away and locked the door of the house from outside. On raising hulla Gauri Devi came and opened the door. Next day morning Chamra Oraon came and informed that the dead body of her son was lying at Makandu More. She has seen firearm injuries on her son. They took him away and locked the door of the house from outside. On raising hulla Gauri Devi came and opened the door. Next day morning Chamra Oraon came and informed that the dead body of her son was lying at Makandu More. She has seen firearm injuries on her son. She has deposed in the Court that amongst the accused persons who had come in the night she could recognize Sakra, Mathia, Deonath, Jage and Kali Munda. In the dock she has failed to identify Sunil Oraon and wrongly identified Mathia Oraon as Sunil Oraon. In the cross-examination she has stated that it was around 07:00 PM and she was cooking food when the accused persons came to her house. At that time Phuldeo Oraon, Chinta Devi and Parmeshwari Devi were present in the house. Phuldeo Oraon, Chinta Devi and Manti Devi were sitting with her while Parmeshwari Devi and Bishun Deo Bhagat were in different rooms. She has further stated that 10 to 12 persons had entered the house and out of them she could recognize six persons. She has admitted in the cross-examination that the Choukidar or the co-villagers were not informed in the night about the incident. She has also stated that her family members knew the name of the accused persons and except Deonath others were in fatigues and carrying guns and a black bag. PW-2, Chinta Devi is another eye-witness for the prosecution - she is the sister of Bishun Deo Bhagat. At about 07.00 PM she was sitting near the fire when Deonath came inside the house with others and started searching for her brother. In the meantime, 10 to 12 persons carrying guns came there and started marpit. They first brought her brother in the courtyard and then forcibly took him away. On raising hulla Gauri Devi came and opened the door. She has identified Kali Munda, Sunil, Sakra, Jage and Deonath among the accused persons and in the dock also she has correctly identified them. In paragraph no. 25 of her cross-examination she has stated that the police had made inquiries from her but in the next paragraph she has stated that the police did not record her statement. She has further stated that she did not tell the police about identifying Kali Munda, Mainul, Jageshwar, Deonath and Sakra Oraon, but in paragraph no. In paragraph no. 25 of her cross-examination she has stated that the police had made inquiries from her but in the next paragraph she has stated that the police did not record her statement. She has further stated that she did not tell the police about identifying Kali Munda, Mainul, Jageshwar, Deonath and Sakra Oraon, but in paragraph no. 29 she has stated that she had told the police that at about 07:00 PM Deonath came and asked Parmeshwari calling her "Bhoujee-Bhoujee" to open the door. PW-3, Phuldeo Oraon is the brother of Bishun Deo Bhagat. He has also deposed in the Court that Deonath came to the house in the evening, asked his sister-in-law to open the door and the accused persons abducted his brother. PW-4, Parmeshwari Devi is the informant of this case. In the Court she has narrated the incident of the evening of 18.09.2005. Her testimony in the Court is in tune with the fardbeyan and her re-statement to the police. She has stated that Sunil Oraon, Sakra Oraon, Kali Munda, Jageshwar Oraon and Deonath Oraon were amongst those who had abducted her husband and with the help of the extremists killed him. She has stated that her husband was a contractor and he was awarded contracts for the school and the road and that was the reason the accused persons bore a grudge against him and killed him. In her cross-examination she has stated that the police had already arrived there before she could reach Makandu More and a large crowd of 300-400 people had gathered there. The entire episode in the evening of 18.09.2005 continued for about half an hour and no one from the village came to their rescue. PW-5, Gauri Devi is the sister-in-law of Bishun Deo Bhagat. On hearing cries she had gone to the house of Bishun Deo Bhagat and opened the doors. She has stated that the family members of Bishun Deo Bhagat had told her that Sunil Oraon, Sakra, Jage, Deonath and others have forceably taken him away and the next day Chamra Oraon gave information that the dead body of Bishun Deo Bhagat was found at Makandu More. 6. PW-1, PW-2, PW-3 and PW-4 are the star witnesses for the prosecution - they have been projected as eye-witnesses. 6. PW-1, PW-2, PW-3 and PW-4 are the star witnesses for the prosecution - they have been projected as eye-witnesses. Their testimony has been challenged as induced with animosity, but merely because a witness is a close relative is not enough to reject his testimony if his evidence is otherwise credible. In "Sucha Singh v. State of Punjab", (2003) 7 SCC 643 [: 2004 (1) JLJR (SC) 78] the Hon'ble Supreme Court has held that relationship is not a factor to affect credibility of a witness for it is more often that a relative would not conceal the actual culprit and implicate an innocent person. We would also keep in mind that wherever a plea of false implication is made the Court has to adopt a careful approach to find out whether evidence of the related witnesses is cogent and credible. 7. The prosecution witnesses who have identified the appellants in the Court were examined more than four years after Bishun Deo Bhagat was abducted and killed. The appellants have challenged their conviction under sections 302/149 IPC and 364/149 IPC on the ground that identification by the witnesses for the first time in the Court is not sufficient to hold them guilty for abduction and murder of Bishun Deo Bhagat. The argument is that without a Test Identification Parade identification of the appellants for the first time in the Court and, that too, after more than four years is worthless evidence and on that basis they cannot be convicted. Another argument is that they were not named in the First Information Report and presence of the appellants at the time of occurrence in the house of Bishun Deo Bhagat is not established. 8. PW-1, PW-2, PW-3, PW-4 and PW-5 have stated in the Court that in the night they started searching for Bishun Deo Bhagat but could not find him and they spent the whole night anxiously fearing for his life. They are the inmates of the house and their presence in the house on the fateful night was quite natural. They are the competent witnesses who can tell the Court what had happened in the night of 18.09.2005. The accused persons amongst whom PW-1, PW-2, PW-3 and PW-4 have identified the appellants entered the house, tied Bishun Deo Bhagat and forcibly took him away. The appellants are the co-villagers and Sakra Oraon is agnate of Bishun Deo Bhagat. They are the competent witnesses who can tell the Court what had happened in the night of 18.09.2005. The accused persons amongst whom PW-1, PW-2, PW-3 and PW-4 have identified the appellants entered the house, tied Bishun Deo Bhagat and forcibly took him away. The appellants are the co-villagers and Sakra Oraon is agnate of Bishun Deo Bhagat. Their identity was never in doubt and though they were not specifically named in the First Information Report, it was not necessary to hold a Test Identification Parade to establish their identity. The law on the subject which is now well-settled is that whether the identification of an accused for the first time in the Court in absence of any Test Identification Parade can be made the basis for conviction would depend upon the facts and circumstances of the case and no strait-jacket formula can be prescribed in this regard. The identification test is primarily meant for the purpose of helping the investigating agency and as held in "Rameshwar Singh v. State of Jammu & Kashmir", (1971) 2 SCC 715 that absence of corroboration by test identification may not assume materiality if either the witness had known the accused earlier or where the reasons for gaining enduring impression of the identity in the mind and memory of the witness are otherwise brought out. It is now well-settled that necessity of Test Identification Parade to corroborate identification of an unknown accused in the Court is a rule of prudence and not an absolute rule. In "Ronny Vs. State of Maharashtra", (1998) 3 SCC 625 the Hon'ble Supreme Court has observed that purpose of a Test Identification Parade is to test observation, grasp, memory and capacity of a witness to recapitulate what he has seen earlier and to strengthen trustworthiness of the evidence on identification of an accused in the Court. 9. The identification of an accused by a witness in the Court is a substantive evidence, may be of a weak character, nonetheless can be relied upon by the Court to record conviction of an accused without any further corroboration by Test Identification Parade. In "Simon & Ors. v. State of Karnataka", (2004) 2 SCC 694 the Hon'ble Supreme Court has held that mere failure to hold a Test Identification Parade would not make inadmissible evidence of identification in the Court. In "Simon & Ors. v. State of Karnataka", (2004) 2 SCC 694 the Hon'ble Supreme Court has held that mere failure to hold a Test Identification Parade would not make inadmissible evidence of identification in the Court. In "Sidhartha Vashisht @ Manu Sharma v. State (NCT of Delhi)", (2010) 6 SCC 1 [: 2010 (3) JLJR (SC) 1] the Hon'ble Supreme Court has concluded that the Court may appreciate dock identification as being above board and more than conclusive even there is no previous test identification. PW-1, PW-2, PW-3 and PW-4 who were present in the house are the witnesses on whom implicit reliance can be placed by the Court. There is no reason why they should falsely identify the appellants as perpetrators of the crime, if they were not involved in the murder of Bishun Deo Bhagat. There is some discrepancy in the statement of the witnesses whether face of all the accused persons was covered, still, identification of the appellants who are the co-villagers was not in doubt. Even if the face of some of them was covered a person who is a witness to abduction of a family member can never forget those horrid hours and would remember distinctive features of the abductors. Furthermore, a witness who had sufficient time to interact with the accused, particularly a known person, can recognize him by his features - eyes, ears, lips, movement, body gait, etc. PW-4 has stated that the incident continued for about half an hour and PW-2 has stated that the accused persons remained in the courtyard for about 10 minutes. Apparently, the prosecution witnesses had sufficient time to recognize the accused persons and there would be no mistake in identification of the co-villagers. 10. With a little vehemence it was argued that the prosecution evidence on the source of light in the house of Bishun Deo Bhagat is highly inconsistent and unreliable and it was impossible to identify the persons who had come inside his house and abducted him. But, we do not find any substance in this argument. PW-1 and PW-2 have stated that there was light in the room and PW-3 has said that a small lamp was lit in the courtyard. PW-2 has stated that it was time of Karma festival and raining, but she has also stated that the accused persons remained in the courtyard for about 10 minutes. PW-1 and PW-2 have stated that there was light in the room and PW-3 has said that a small lamp was lit in the courtyard. PW-2 has stated that it was time of Karma festival and raining, but she has also stated that the accused persons remained in the courtyard for about 10 minutes. She has further stated that in the evening the villagers would go to bed, but at the time the accused persons came to her house except Bishun Deo Bhagat others in her family had not retired to bed. Except Deonath, others were wearing khaki dresses or fatigues and they were carrying guns and the appellants had a grudge against Bishun Deo Bhagat for the reason that he had secured contracts in the past. In "Nathuni Yadav v. State of Bihar", (1998) 9 SCC 238 a doubt was raised on identification of the assailants on the ground that it was a moonless night and there was no lamp burning in the vicinity. The assailants were not strangers and the eye-witnesses were well-acquainted with each of the killers. The Hon'ble Supreme Court has observed that the other factors have also to be borne in mind, while judging whether the witnesses could have had enough visibility to correctly identify the accused. 11. The appellants who were known to the prosecution witnesses were not named in the First Information Report and on that ground it was contended that their identification in the Court cannot be relied upon to convict them. 12. There is no dispute that Deonath Oraon knocked the door of Bishun Deo Bhagat at about 07:30 PM on 18.09.2005 and asked his wife to open the door. In her fardbeyan the informant has raised suspicion against four persons and after the investigation sufficient materials were collected about their involvement in the murder of Bishun Deo Bhagat. It was a mistake on the part of the Officer-in-Charge of Kuru Police Station that he did not put their names in column-7 of Form-118 which is prepared under section 154 Cr.P.C. The informant has named the appellants and identified them in the Court. In her cross-examination she has explained why she could not tell name of the accused persons to the police. She has stated that at the time when her fardbeyan was recorded she was not in a proper frame of mind. Her explanation appears to be truthful and acceptable. In her cross-examination she has explained why she could not tell name of the accused persons to the police. She has stated that at the time when her fardbeyan was recorded she was not in a proper frame of mind. Her explanation appears to be truthful and acceptable. All the night she was fearing for the life of her husband. The dead body of Bishun Deo Bhagat was found lying at Makandu More the next morning and her fardbeyan was recorded by the police then and there. It was quite remarkable that while in a state of trauma and shock she was able to narrate the incident of the previous night to the police. The terror stricken witnesses who could not gather courage to tell the police about presence of the appellants have finally stood up against them in the Court and deposed about their active participation with the extremists in the night of 18th September 2005. In "Ponnusamy v. State of T.N.", (2012) 11 SCC 355 the witnesses did not mention name of the accused persons though they were known to them. The Hon'ble Supreme Court has held that where identity of the accused was not an issue raised by the defence the evidence of the witnesses who did not refer to him by his name cannot be discarded. 13. Still further, in a criminal trial importance of the First Information Report is only for the purpose of corroborating or contradicting a witness. It is not substantive evidence and its importance cannot be overstretched. The legal position as to the object, value and use of the First Information Report is well-settled. The main object of the First Information Report is to set the criminal law in motion and to incorporate the basic facts about the crime in the Report. As held in "Ram Jag & Ors. v. State of U.P.", (1974) 4 SCC 201 the witnesses cannot be called upon to explain every hour of delay and a common sense view has to be taken in ascertaining whether a First Information Report was lodged after an undue delay so as to afford enough scope for manipulating evidence. There was no delay in lodging the First Information Report. PW-1 has stated that due to fear of the extremists no one came there. After the accused persons left and she raised cries Gauri Devi came and opened the door. There was no delay in lodging the First Information Report. PW-1 has stated that due to fear of the extremists no one came there. After the accused persons left and she raised cries Gauri Devi came and opened the door. PW-3 has stated that the Choukidar was not on duty and on raising hulla nobody came to rescue. The distance of the police station was about 12 km and in a rainy night and, that too, under the shadows of fear no one had gone to the police station. The conduct of the prosecution witnesses was not unnatural and it is quite understandable if they have not revealed name of the appellants to the police immediately. The prosecution witnesses are villagers and three of the eye-witnesses are female folks. Their understanding of the complexities of a criminal case cannot be compared with urban witnesses and the standard applied to test their truthfulness should be in consonance with and keeping in mind the rural set up in which they were living. This aspect is quite apparent from the testimony of PW-2 who at three places in the cross-examination has given mixed answers whether her statement was taken by the police. Another feature of the cross-examination by the defence is that similar questions were put to the witnesses and it is quite apparent from the evidence of PW-1 that similar questions were asked to her by the defence to confuse her which is a normal trick of the defence. However, every time she has asserted that Sakra Oraon, Sunil Oraon, Kali Munda, Deonath and Jage were amongst the accused persons, they were also in the party fatigues and carrying guns. The informant and other family members were in a state of shock and we have no reason to disbelieve that the informant was quite perturbed when her statement was recorded by the police at Makandu More. She had lost her husband and her world was shattered. Apart from rustic simplicity and the terrible state in which she was, her firm stand in the cross-examination is another reason to accept her testimony. In "Leela Ram v. State of Haryana", (1999) 9 SCC 525 [: 2000 (1) PLJR (SC) 19] wherein the Hontble Supreme Court has observed as under: "11. Apart from rustic simplicity and the terrible state in which she was, her firm stand in the cross-examination is another reason to accept her testimony. In "Leela Ram v. State of Haryana", (1999) 9 SCC 525 [: 2000 (1) PLJR (SC) 19] wherein the Hontble Supreme Court has observed as under: "11. The Court shall have to hear in mind that different witnesses react differently under different situations: whereas some become speechless, some start wailing while some others run away from the scene and yet there are some who may come forward with courage, conviction and belief that wrong should be remedied. As as matter of fact it depends upon individuals. There cannot be any set pattern or uniform rule of human reaction and to discard a piece of evidence on the ground of his reaction not falling within a set pattern is unproductive and a pedantic exercise." 14. On the basis of minor discrepancies in the statement of the witnesses it was contended that they are not the eye-witnesses. PW-1 has stated that she was sitting with Phuldeo Oraon, Chinta Devi and Manti in the kitchen and at that time Parmeshwari Devi was in her room. PW-2, Chinta Devi has stated that she was sitting with Bandi Bhagtain, Manti Devi and Phuldeo Oraon in the kitchen and Parmeshwari Devi was sleeping. PW-3, Phuldeo Oraon has stated that he was sitting with his mother Sandi Bhagtain and sister-in-law Parmeshwari Devi. In paragraph No.18 of her cross-examination Parmeshwari Devi has stated that she was cooking food in the kitchen while her husband and other family members were warming themselves near the fire. From the aforesaid statements it can be said that there are discrepancies in the statement of these witnesses, but their presence in the house at the time of the occurrence has not been challenged by the defence. It is immaterial where these witnesses were sitting in the house, what is important to keep in mind is that the accused persons have remained in the house for quite some time and that was sufficient for these witnesses to identify them. It has come on record that when the accused persons were forcibly taking away Bishun Deo Bhagat these witnesses grappled with them and were begging for his life. The Investigating Officer had no animus towards the appellants, rather he seems to helping the accused persons. It has come on record that when the accused persons were forcibly taking away Bishun Deo Bhagat these witnesses grappled with them and were begging for his life. The Investigating Officer had no animus towards the appellants, rather he seems to helping the accused persons. In "State of Rajasthan vs. Kalki", (1981) 2 SCC 752 the Hon'ble Supreme Court has observed that in the deposition of witnesses there are always normal discrepancies however honest and truthful they may be and in "Sunil Kumar Sambhudayal Gupta (Dr.) vs. State of Maharastra", (2010) 13 SCC 657 it has been observed that while appreciating the evidence the Court has to take into consideration whether the contradiction/omission had been of such magnitude they may materially affect the trial. The Hon'ble Supreme Court has further observed that minor contradiction, inconsistency, embellishment or improvement on trivial matters without affecting the core of the prosecution case should not be made a ground to reject the evidence in its entirety. 15. In the factual scenario that we have discussed herein-above, the minor omissions and discrepancies in the evidence of the prosecution witnesses do not create any doubt on complicity of the appellants in abduction and murder of Bishun Deo Bhagat and we have no hesitation to hold that the appellants were identified by the prosecution witnesses in the night of 18th September, 2005. 16. There is no contradiction in the medical evidence and the ocular evidence, rather the medical evidence supports the prosecution to the extent that the time of death of Bishun Deo Bhagat corroborates the prosecution story about his abduction in the evening of 18.09.2005. PW-15, Dr. Nawal Kishore Sinha who has conducted the post-mortem examination on 19.09.2005 over the dead body of Bishun Deo Bhagat has found one penetrating wound of the size of one centimetre on the left shoulder, 10 inches deep pointing towards left maxilla and left lateral part of the chest. One lacerated wound of the size of "4 inches x 4 inches x 4 inches" on the left axillary region and upper lateral region of the chest and fracture of 4th to 7th ribs were also found. The doctor has found one pellet in the axillary wound and in his opinion the injuries were caused by firearm. In his estimation the time elapse since death was 12 to 24 hours. 17. The doctor has found one pellet in the axillary wound and in his opinion the injuries were caused by firearm. In his estimation the time elapse since death was 12 to 24 hours. 17. On the ground that who shot dead Bishun Deo Bhagat is not known, it was contended that the appellants cannot be convicted under section 302/149 IPC. 18. Bishun Deo Bhagat was lastly seen in the company of Deonath Oraon and others in the evening of 18.09.2005 and the next morning his dead body was seen near Makandu More. In a criminal trial the prosecution can prove a charge by giving circumstantial evidence and the law of evidence enjoins upon the Court to draw an inference under section 106 of the Indian Evidence Act against the accused in whose company the victim was lastly seen, if he fails to say what has happened after the victim was lastly seen with him. In a criminal trial the burden of proof is always on the prosecution and as observed by Hon'ble Supreme Court in "Shambu Nath Mehra v. State of Ajmer", AIR 1956 SC 404 that section 106 of the Indian Evidence Act is not intended to relieve the prosecution of its duty to prove its case beyond reasonable doubt, but, a fact which can be said to be exclusively within the knowledge of the accused and which is disproportionately difficult for the prosecution to establish must be disclosed by the accused. In "State of West Bengal v. Mir Mohammad Omar & Ors.", (2000) 8 SCC 382 the Hon'ble Supreme Court has observed that the proclaimed intention of the accused and the proximity of time within which the victim sustained fatal injuries were enough to draw an inference that the victim's death was caused by abductors. In "Sucha Singh v. State of Punjab", (2001) 4 SCC 375 the Hon'ble Supreme Court has observed that the abductors alone could tell the Court as to what has happened to the deceased after they abducted him. 19. The accused persons entered the house of Bishun Deo Bhagat on a pretext that his friends had come to meet him. He was assaulted with kicks and fists, his hands were tied and he was forcibly abducted from his house. 19. The accused persons entered the house of Bishun Deo Bhagat on a pretext that his friends had come to meet him. He was assaulted with kicks and fists, his hands were tied and he was forcibly abducted from his house. The intention of a person can be gathered from the spoken words or his gestures and in the present case there is abundance of material to conclude that common object of the assembly of the accused persons was to cause the death of Bishun Deo Bhagat. The unknown accused persons were extremists who were invited by the appellants to help them eliminate Bishun Deo Bhagat. These acts of the abductors provide sufficient clue to their intention to murder him. In their examination under section 313 Cr.P.C, the appellants were specifically put to the circumstances of enmity on account of contracts for the school and the pond and abduction as well as murder of Bishun Deo Bhagat, but, they have not offered any explanation and simply denied those circumstances. 20. In "Munish Mubar v. State of Haryana", (2012) 10 SCC 464 the Hon'ble Supreme Court has held that it is obligatory on the part of accused when he is examined under section 313 of the Code of Criminal Procedure to furnish some explanation with respect to the incriminating circumstances associated with him and in "Rohtash Kumar v. State of Haryana", (2013) 14 SCC 434 [: 2012 (4) JLJR (SC) 97] the Hon'ble Supreme Court has observed that the prosecution has to prove its case beyond reasonable doubt, however, under certain circumstances the accused has to furnish some explanation to the incriminating circumstances which have come in the evidence. 21. In another decision, in "Phula Singh v. State of H.P.", (2014) 4 SCC 9 [: 2014 (2) JLJR (SC) 131] the Hon'ble Supreme Court has observed thus: "11. The accused has a duty to furnish an explanation in his statement under Section 313 CrPC regarding any incriminating material that has been produced against him. If the accused has been given the freedom to remain silent during the investigation as well as before the court, then the accused may choose to maintain silence or even remain in complete denial when his statement under Section 313 CrPC is being recorded. If the accused has been given the freedom to remain silent during the investigation as well as before the court, then the accused may choose to maintain silence or even remain in complete denial when his statement under Section 313 CrPC is being recorded. However, in such an event, the court would be entitled to draw an inference, including such adverse inference against the accused as may be permissible in accordance with law (Vide Ramnaresh v. State of Chhattisgarh, Munish Mubar v. State of Haryana and Raj Kumar Singh v. State of Rajasthan." 22. The prosecution has brought on record sufficient materials to prove motive for the crime. In his statement under section 161 Cr.P.C., PW-8 has stated about conspiracy by Sunil Munda, Sakra Oraon, Jageshwar Oraon etc. against his brother. He has also stated that his deceased brother had taken initiative to get back the land which was taken by Sunil Munda from Mahabir Tana Bhagat on payment of Rs.6,000/- and that was the reason Sunil Munda was not happy with his brother. He has also spoken about a land dispute between his family and Sakra Oraon. The aforesaid statements of PW-8 cannot be used to prove motive, but under sub-sections (2) & (3) of section 172 Cr.P.C. the statement of the prosecution witnesses recorded under section 161 Cr.P.C. is usable by the Court to seek assurance in aid to the trial. 23. The confessional statements of the appellants also provide a hint on motive for the crime. In their confessional statements they have stated about their friendship and conspiracy to eliminate Bishun Deo Bhagat. They have also stated that Bishun Deo Bhagat had sexually assaulted Lilawati so they decided to murder Bishun Deo Bhagat and expressed their intention to eliminate Bishun Deo Bhagat to Babulal who was the area commander of Communist Party of India (Maowadi). The confessional statements of the appellants cannot be used against them for proving the charges of abduction and murder of Bishun Deo Bhagat, but, a part of the statements which do not implicate them directly would not be hit by section 25 of the Evidence Act and can be looked into to unearth the truth (refer, "Sandeep v. State of U.P.", (2012) 6 SCC 107 [: 2012 (3) JLJR (SC) 371]). 24. 24. The appellants have not retracted their statements made before the police and the Investigating Officer was not put to a suggestion that the confessional statements of the appellants were extracted under threat and coercion. Bishun Deo Bhagat was able to secure contracts in the village in preference to these persons and according to the prosecution that was a reason for the bad blood between them. Enmity cuts both ways and there may appear some force in the argument that either on account of animosity or a doubt the appellants have been falsely implicated in this case, however, on a closure scrutiny we find that no such ground is made out to hold that the appellants have been falsely implicated in this case. The evidence of the prosecution witnesses is clear, cogent and consistent and in their cross-examination the eye-witnesses have remained firm to their grounds. The learned Sessions Judge has recorded that the statements of PW-1 and PW-4 were not recorded by the Investigating Officer. But, on examination of the original records we find that statements of the prosecution witnesses including PW-1, PW-2, PW-3, PW-4, PW-5 and PW-8 were recorded by the Investigating Officer. This is clearly an error of records and even though PW-1 and PW-4 have stated in the Court that their statements were not recorded by the Investigating Officer, their evidence in the Court cannot be discarded. Moreover, the defence has cross-examined them with reference to their statements recorded under section 161 Cr.P.C. From the fardbeyan of the informant it is quite apparent that PW-1, PW-2 and PW-3 are also the eye-witnesses and their presence in the house on the fateful evening has not been challenged by the defence. The homicidal death of Bishun Deo Bhagat is not disputed and there is no reason to think that the close relatives of Bishun Deo Bhagat have shielded the identity of real offenders. In "Atley v. The State of Uttar Pradesh", AIR 1955 SC 807 the Hon'ble Supreme Court has observed that where there is clear proof of motive for the crime that lends additional support to the finding of the Court that the accused was guilty. This case is one such case. 25. In "Atley v. The State of Uttar Pradesh", AIR 1955 SC 807 the Hon'ble Supreme Court has observed that where there is clear proof of motive for the crime that lends additional support to the finding of the Court that the accused was guilty. This case is one such case. 25. In a later decision, in "Sheo Shankar Singh v. State of Jharkhand", (2011) 3 SCC 654 [: 2011 (2) JLJR (SC) 70] the Hon'ble Supreme Court while observing that proof of motive constitutes a link in the chain of circumstances upon which the prosecution may rely has held as under: "15. The legal position regarding proof of motive as an essential requirement for bringing home the guilt of the accused is fairly well-settled by a long line of decisions of this Court. These decisions have made a clear distinction between cases where the prosecution relies upon circumstantial evidence on the one hand and those where it relies upon the testimony of eyewitnesses on the other. In the former category of cases proof of motive is given the importance it deserves, for proof of a motive itself constitutes a link in the chain of circumstances upon which the prosecution may rely Proof of motive, however, recedes into the background in cases where the prosecution relies upon an eyewitness account of the occurrence. That is because if the court upon a proper appraisal of the deposition of the eyewitnesses comes to the conclusion that the version given by them is credible, absence of evidence to prove the motive is rendered inconsequential. Conversely, even if the prosecution succeeds in establishing a strong motive for the commission of the offence, but the evidence of the eyewitnesses is found unreliable or unworthy of credit, existence of a motive does not by itself provide a safe basis for convicting the accused. That does not, however, mean that proof of motive even in a case which rests on an eyewitness account does not lend strength to the prosecution case or fortify the court in its ultimate conclusion. Proof of motive in such a situation certainly helps the prosecution and supports the eyewitnesses." 26. That does not, however, mean that proof of motive even in a case which rests on an eyewitness account does not lend strength to the prosecution case or fortify the court in its ultimate conclusion. Proof of motive in such a situation certainly helps the prosecution and supports the eyewitnesses." 26. PW-6, PW- 7, PW-9, PW-10 and PW-13 are the residents of nearby places who were examined on the point that the extremists were involved in the murder of Bishun Deo Bhagat and near his dead body a parcha written by Communist Party of India (Maowadi) was found but these witnesses have turned hostile and primarily for that reason the appellants have been acquitted of the charge under section 17/18 of the Criminal Law Amendment Act. There is no State appeal against the acquittal of the appellants for the offence under section 27 of the Arms Act and section 17/18 of the Criminal Law Amendment Act, but on the ground of failure of the charges for these offences the prosecution story that extremists were involved in the occurrence cannot be disbelieved. 27. No charge was framed against the appellants with the aid of section 34 IPC, or section 120-B IPC and on that ground it was contended that in absence of any evidence on murder of Bishun Deo Bhagat at best the appellants can be convicted for the offence of abduction. 28. Mr. Kumar Nilesh, the learned counsel for the appellant-Sakra Oraon has referred to the judgments in "Jasvinder Saini & Ors. v. State (Govt. of NCT of Delhi)", (2013) 7 SCC 256 [: 2013 (4) JLJR (SC) 6], "Sabbi Mallesu and Ors. v. State of Andhra Pradesh", AIR 2006 SC 2747 and "N.A. Subramania Iyer v. King-Emperor", (1900-01) 28 IA 257 to contend that serious prejudice has been caused to the appellant as the charge under section 302 IPC was altered on the day of the judgment under section 302/149 IPC. 29. Section 216 of the Code of Criminal Procedure provides ample powers to the Court to alter or add any charge in a criminal trial. Sub-section 1 says that any Court may alter or add any charge at any time before the judgment is pronounced. 29. Section 216 of the Code of Criminal Procedure provides ample powers to the Court to alter or add any charge in a criminal trial. Sub-section 1 says that any Court may alter or add any charge at any time before the judgment is pronounced. The question of any addition or alteration of the charge would generally arise either because the Court finds the charge already framed to be defective or for the reason that such addition is necessary having regard to the evidence that may have come before the Court. In the present case it was an error or omission on the part of the trial Court not to frame a charge with the aid of section 149 IPC. A First Information Report was lodged against unknown extremists and nine persons have faced the trial for causing the death of Bishun Deo Bhagat. As a common principle two or more accused persons cannot be held guilty simply under section 302 IPC and it is incumbent upon the Court to frame a charge against them with the aid of section 149 or section 34 or section 120-B IPC, as the case may be. The conviction of the appellants under section 302/149 IPC is on a premise that in furtherance of the common object of the unlawful assembly of the accused persons murder of Bishun Deo Bhagat was committed. Sections 460 and 461 of the Code of Criminal Procedure deal with irregularities during the trial which mayor may not vitiate the proceeding. Section 464 provides that no finding of sentence or order by the Court of competent jurisdiction shall be deemed invalid merely on the ground that no charge was framed or on the ground of any error or 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, in fact, been occasioned thereby. The offence under section 302 IPC compared to section 302/149 IPC is not a minor offence, if not major. As a matter of fact charge was not altered, rather the appellants' conviction has been recorded with the aid of section 149 IPC and the relevant provision which applies in this case is section 464 of the Code of the Criminal Procedure and not section 216 of the Code of Criminal Procedure. As a matter of fact charge was not altered, rather the appellants' conviction has been recorded with the aid of section 149 IPC and the relevant provision which applies in this case is section 464 of the Code of the Criminal Procedure and not section 216 of the Code of Criminal Procedure. The appellants have not suffered any prejudice on this Count also. The aforesaid judgments are not relevant in the facts of the case and reliance placed by the learned counsel for the appellants on them is misplaced. The learned Sessions Judge has referred to several judgments on the point and we are not required to cite many authority on this point and would simply record that the learned Sessions Judge has rightly held that the trial shall not vitiate, for any defect in framing of the charge. 30. In view of the aforesaid discussions, we find no merit in these criminal appeals and, accordingly, Criminal Appeal (DB) No. 648 of 2012 and Criminal Appeal (DB) No. 1069 of 2012 are dismissed. 31. I.A. No. 4951 of 2019 stands disposed of. 32. Let the lower Court records be sent to the Court concerned forthwith. 33. Let a copy of the Judgment be transmitted to the Court concerned and concerned Jail Superintendent through FAX.