JUDGMENT : SUBHASH CHAND, J. 1. Heard learned counsel for the appellants and learned counsel for the State. 2. The instant criminal appeal is preferred on behalf of the appellants against impugned Judgment of conviction and Order of sentence dated 3rd February, 1994 passed by the 3rd Additional Sessions Judge, Deoghar in Sessions Case No. 17 of 1991, whereby, the appellants no. 1 Lakhiram Hembram @ Lukhiram Hembram and the appellant no. 3 Santan Hembram have been convicted for the offence under Sections 302/323/325 of the Penal Code, 1860 and they were sentenced to undergo rigorous imprisonment for life under Section 302 of the I.P.C. and no any separate sentence was awarded to them under Sections 323 and 325 of the I.P.C. The appellant no. 2 Abhilash Hembram and the appellant no. 4 Chhotenath Hembram are convicted and sentenced to undergo rigorous imprisonment for 5 years each under Section 325 of the Penal Code, 1860 further they are convicted and sentenced to undergo rigorous imprisonment for one year each under Section 323 of the I.P.C. The appellant no. 5 Anand Hembram was convicted and sentenced to undergo rigorous imprisonment for one year under Section 323 of the Penal Code, 1860. 3. The prosecution case in brief is that the written information was given by Lakhan Hembrom at the police station concerned with the allegations that there was custom in village Kharko on the occasion of Bandhna festival that all the people of village sing and dance in the streets of the village. There were two parties in the village on 13.01.1987 and it was Tuesday night 8 o' clock after having taken food while singing and dancing reached near the house of one Anil Rana in a street. At the same time some persons of other party of the village who also arrived dancing and singing among them Lukhi Ram Hembrom, Lubin Hembrom, Gome Hembrom, Santan Hembrom, Chotenath Hembrom, Anand Hembrom, Moti Hembrom, Ravan Murmu, Obinath Hembrom, Maneshar Hembrom, Avilash hembrom, Jeevan Hembrom and Madan Soren were also present. A small harmonium in village was defective which was at the house of the persons of the party of informant. The persons of the opposite party made demand of harmonium which was told to be defective by the persons of the informant-party. A small harmonium in village was defective which was at the house of the persons of the party of informant. The persons of the opposite party made demand of harmonium which was told to be defective by the persons of the informant-party. At this the persons of another party got annoyed and Santan Hembrom, Lukhiram Hembrom brought iron rod and Chotenath Hembrom, Avilash Hembrom, Motilal Hembrom brought lathi from the house. Santan Hembrom and Lukhiram Hembrom both assaulted with iron rod and Moti Hembrom and Anand Hembrom assaulted with lathi to Sahdeo Soren on his head and body. On account of the sustaining injuries inflicted by Santan Hembrom, Sahdeo Soren fell down on the ground. The informant (Lakhan Hembrom) reached to rescue him at this Santan Hembrom also assaulted him with rod and Abhilash assaulted with lathi on his back. Shiv Narayan Hembrom was also assaulted with iron rod by Santan. Chotenath and Abhilash assaulted with lathi. Haradhan Hembrom was assaulted by Lukhiram with iron rod. Mahendra Hembrom was assaulted by Lukhiram with lathi. Dhan Marandi was assaulted with iron rod by Lukhiram. Sahdeo Soren died at the place of occurrence. This occurrence was also seen by Pradhan Soren, Mansingh Hembrom, Shivlal Murmu, Pane Soren, Sahdeo Marandi and others. All the accused persons fled away after having seen the Sahdeo Soren dead. 4. On this written information, case crime No. 04 of 1987 was registered with the police station Palajori against 13 named accused under Sections 147, 148, 149, 302 and 323 of the Penal Code, 1860. The Investigation Officer after having concluded the investigation filed charge-sheet against all the 13 named accused before the court of Magistrate concerned and the Magistrate concerned after having taken the cognizance thereon had committed the case for trial to the court of Sessions Judge. 5. During trial accused Moti Ram Hembrom died on 27th May, 1991 and the trial court framed charge against all the 12 accused persons and all the accused persons denied the charge framed against them and claimed to face the trial. 6. On behalf of the prosecution in oral evidence examined PW-1-Haradhan Hembram, PW-2-Dhan Marandi, PW-3-Sheolal Murmu, PW-4-Mandhan Hembram, PW-5-Sahdeo Marandi, PW-6-Ram Saran Soren, PW-7-Koka Tudu, PW-8-Pradhan Soren, PW-9-Pano Soren, PW-10-Mansingh Hembram, PW-11-Mahendra Hembram, PW-12-Sheo Narayan Hembram, PW-13-Lakhan Hembram, PW-14 Dr. Akhilesh Pratap Singh and PW-15 Ram Saran Yadav (the I.O.). 7. 6. On behalf of the prosecution in oral evidence examined PW-1-Haradhan Hembram, PW-2-Dhan Marandi, PW-3-Sheolal Murmu, PW-4-Mandhan Hembram, PW-5-Sahdeo Marandi, PW-6-Ram Saran Soren, PW-7-Koka Tudu, PW-8-Pradhan Soren, PW-9-Pano Soren, PW-10-Mansingh Hembram, PW-11-Mahendra Hembram, PW-12-Sheo Narayan Hembram, PW-13-Lakhan Hembram, PW-14 Dr. Akhilesh Pratap Singh and PW-15 Ram Saran Yadav (the I.O.). 7. On behalf of the prosecution in documentary evidence adduced written information Ext.3, injury report of Dhan Marandi Ext.4, injury report of Haradhan Hembrom Ext.4/1, injury report of Lakhan Hembrom Ext.4/2, injury report of Mahendra Hembrom Ext.4/3 and injury report of Sheo Narayan Hembram Ext.4/4, seizure memo of blood stained soil Ext.2, the signature of PW-4 Mandhan Hembram and Ram Saran Soren over inquest report of deceased Shahdeo Soren Exts.1 and 1/1 respectively. 8. The statement of accused persons under Section 313 of the Cr. P.C. was also recorded, wherein the accused persons denied the incriminating circumstances against them and stated to adduce defence evidence. 9. On behalf of the defense in oral evidence examined DW-1 Manilal Mahto. 10. The learned trial court after hearing the learned counsel for the parties passed the judgment of conviction and order of sentence against all the accused persons and convicted Lakhiram and Santan Hembram for the offence under Section 302 of the I.P.C. and sentenced them rigorous imprisonment for life. The trial court also held Larkhiram Hembram, Santan Hembram along with Abhilash Hembram and Chhotenath Hembram guilty for the offence under Section 325 of the I.P.C. but no separate sentence was passed against Lakhiram Hembram and Santan Hembram for the offence under Section 325 of the I.P.C. Convict Abhilash Hembram and Chhotenath Hembram were sentenced for five years for the charge under Section 325 of the I.P.C. The trial court also convicted Avilash Hembram, Chhotenath Hembram along with Anand Hembram for the offence under Section 323 of the I.P.C. and sentenced with imprisonment for one year. The sentences of convicts Abhilash Hembram and Chhotenath Hembram were directed to run consecutively. 11. The sentences of convicts Abhilash Hembram and Chhotenath Hembram were directed to run consecutively. 11. The aforesaid convicts being aggrieved with the judgment of conviction and order of sentence dated 3rd February, 1994 preferred the present criminal appeal on the ground that prosecution examined altogether 15 witnesses out of them PW- 1, 2, 3 and 5 are the eye-witnesses while PW-4, 5, 6 and 7 are formal witness, PW-12 was tendered witness, PW-14 is the doctor who examined the injuries of the all the injures persons and PW-15 is the Investigating Officer. The medical officer, who had conducted the postmortem of the deceased was not examined. There was no means of identification of the accused at the time of occurrence and there is nothing on record that there was no any premeditation on the part of the appellants/convict to cause death or to inflict injuries for which they were held guilty and sentenced. Accordingly, prayed to allow this criminal appeal and to set aside the impugned judgment of conviction and sentence and also prayed to acquit all the appellants/convicts. 12. During pendency of this criminal appeal, the appellant no. 1 Lakhiram Hembram @ Lukhiram Hembram and appellant no. 5 Anand Hembram had died. No application was moved on behalf of their legal heirs to pursue this criminal appeal. Accordingly, this criminal appeal was abated; so far as it relates to appellant nos. 1 and 5 on 30th April, 2019. Appellant no. 4 Chhotenath Hembram was reported to be traceless and his bail bonds were cancelled vide order dated 2nd April, 2019. The appellant no. 2 Abhilash Hembram also died and no legal representative on his behalf is intending to purse the appeal. Hence, the instant appeal also stands abated against him vide order dated 25th January, 2023. 13. Heard learned counsel for the appellants and learned A.P.P. for the State of Jharkhand and perused the materials available on record. 14. To decide the legality and propriety of the impugned judgment of conviction and sentence passed against the appellant, the evidence adduced on behalf of the prosecution is to be re-appreciated herein. 15. PW-1 Haradhan Hembrom in his examination-in-chief stated that the occurrence was of Tuesday 8 o' clock of night four years ago from that day. On eve of festival of Bandhna, all the people of village had been dancing and singing as well. 15. PW-1 Haradhan Hembrom in his examination-in-chief stated that the occurrence was of Tuesday 8 o' clock of night four years ago from that day. On eve of festival of Bandhna, all the people of village had been dancing and singing as well. When they reached near the door of house of Anil Rana, the persons of another group asked for the harmonium. It was responded that the harmonium was defective and same was kept at the house. Upon hearing this, the persons of another group enraged. Lakhiram, Santan, Motilal, Anand and Abhilash Hembrom went to the house of Muneshwar and brought the weapons from his house. Lukhiram and Santan were armed with iron rod. Motilal, Anand and Abhilash were armed with lathi. Chhotenath, Lobin, Gameshwar, Ravan Murmu, Abhinath Hembrom, Maneshwar Hembrom, Jeevan Hembrom and Madan Soren had also accompanied them. Santan assaulted with iron rod on the forehead of Sahdeo Soren and Sahdeo Soren fell down on the ground. The blood was oozing and to rescue him Lakhiram came and he was also assaulted with iron rod on his hand. Dhan Marandi was also assaulted with iron rod by Lakhiram with iron rod. Lakhan Hembrom was assaulted by Santan with iron rod and by Abhilash with lathi. Mahendra was assaulted by Motilal with lathi and Sheonarayan was assaulted by Santan with iron rod. Sahdeo died on the spot. All the accused persons fled away. 16. In cross-examination, this witness stated that it was festival of bandhna and they had not drunk wine. The wine was offered to Maadi Devta and same was also distributed after having taken food. All the young and old persons were dancing and singing. Both group came face to face in front of house of Anil Rana. First of all Shahdeo Soren was assaulted thereafter Shiv Narayan was assaulted. Lakhan also became injured, thereafter, Mahendra and Dhan Marandi was also assaulted. The harmonium was defective for one year and all the accused persons had knowledge of the same. 17. PW-2 Dhan Marandi in his examination-in-chief stated that the occurrence was of four and half year ago and it was Tuesday 8 o' clock of night. On the eve of Bandhna festival, all were dancing and singing as they reached near the house of Anil Rana, the persons of another group also came dancing and singing. They made demand of harmonium which was defective. On the eve of Bandhna festival, all were dancing and singing as they reached near the house of Anil Rana, the persons of another group also came dancing and singing. They made demand of harmonium which was defective. On refusal of the same, all became enraged. Santan, Obinath were armed with iron rod, Motilal, Obinath and Anand were also armed with lathi. Santan and Lakhiram assaulted with iron rod to Shahdeo on his forehead. He was also assaulted by Moti Ram with lathi and Shahdeo Soren succumbed to injuries on the spot. 18. In cross-examination, this witness says that Bandhna festival was the biggest festival of them and it was celebrated for five days but in their village it was celebrated for three to four days. On the occasion of this festival, all the persons eat and drink. On the date of occurrence, it was last day of the festival. Shahdeo had fallen on the ground and he was also beaten indiscriminately. This witness further says that he, Lakhan and Shiv Narayan all were assaulted. 19. PW-3 Sheo Lal Murmu in his examination-in-chief stated that the occurrence was of four years ago 8 o' clock of night of Tuesday. He was sitting at the door of his house and was watching singing and dancing as they reached at the door of Anil Rana, persons of both the groups came face to face. The persons of one group made demand of harmonium and it was told by the group that same was not in working condition and at this they enraged and Lakhi Ram, Santan, Motilal and Abhilash had brought the weapon from the house of Maneshwar. Lakhiram and Santan assaulted Shahdeo with iron rod and he fell down on the ground. Haradhan, Shivnarayan and Lakhan were also assaulted and sustained injuries. Dhan was assaulted by Lakhi Ram with iron rod. Sheo Narayan was assaulted by Abhilash, Santan and Chhotenath while Lakhan was assaulted by Abhilash. Shahdeo Soren died on account of sustaining injuries at the spot. One group belong to Haradhan while another group belong to accused persons. 20. In cross-examination, this witness says that Kharko was the large basti of Santhal. Harmonium was demanded by Santan from Shahdeo. First of all Shahdeo was assaulted thereafter other were assaulted simultaneously. 21. Shahdeo Soren died on account of sustaining injuries at the spot. One group belong to Haradhan while another group belong to accused persons. 20. In cross-examination, this witness says that Kharko was the large basti of Santhal. Harmonium was demanded by Santan from Shahdeo. First of all Shahdeo was assaulted thereafter other were assaulted simultaneously. 21. PW-4 Mandhan Hembrom in his examination-in-chief stated that the inquest report of the deceased was prepared on which he also put his signature which was marked as Ext.1 and Ramsharan Soren also put his signature over the same which was marked Ext.1/1. 22. PW-5 Sahdeo Marandi in his examination-in-chief stated that after having heard alarm he reached at the place of occurrence. Lukhiram and Santan had assaulted Sahdeo with iron rod on his forehead. Sahdeo fell down. Dhan was assaulted by Lukhiram and Santan. Lakhan was also assaulted by them. Haradhan was also assaulted with iron rod. The leg of Dhan fractured. Sahdeo died at the place of occurrence. This witness also identify all the accused persons in the dock. 23. In cross-examination, this witness stated that in village Kharko there is basti of 80 to 100 houses and is basti of Santhals which is situated both sides of streets. Sahdeo was also lying in the street and remained overnight there since he had died. This witness further stated that others who were injured were taken to their house. 24. PW-6 Ram Saran Soren stated that the blood stained soil was taken in custody by the I.O. from the place of occurrence. Seizure memo was prepared and he put his signature over the same which was marked Ext.2. 25. PW-7 Koka Tudu also proved the seizure memo of blood stained soil and stated that he also put his thumb impression thereon. 26. PW-8 Pradhan Soren in his examination-in-chief stated that the occurrence was of Tuesday 8 o'clock of night. He had heard the hue and cry from his house and he came out of his house and reached there where he saw that Santan, Lakhiram were armed with iron rod and others were armed with Lathi. Sahdeo Soren was assaulted by Santan on his head. Lakhiram assaulted Dhan on his leg with iron rod. Sahdeo Soren fell down on the spot on account of sustaining head injury. Haradhan came to rescue and he was also assaulted by Lakhiram with iron rod. Sahdeo Soren was assaulted by Santan on his head. Lakhiram assaulted Dhan on his leg with iron rod. Sahdeo Soren fell down on the spot on account of sustaining head injury. Haradhan came to rescue and he was also assaulted by Lakhiram with iron rod. Sahdeo Soren died at the spot. Shiv Narayan was also assaulted by Chhotenath and Santan. This witness identifies all the accused persons in the dock. 27. In cross-examination, this witness says that he had participated in the process who were singing and dancing. The group of the accused persons also came from other side and he had seen Sahdeo being assaulted on his forehead with iron rod by Santan. Santan had given three iron blow on the head of Sahdeo due to which he died at the spot. Those who came to rescue were also assaulted by the accused persons. Haradhan was also assaulted by Lakhi ram with iron rod. Lakhan was assaulted by Abhinash with Lathi. Sheo Narayan was assaulted by Sahdeo. In the occurrence, the leg of Dhan Marandi also fractured. 28. PW-9 Pano Soren in his examination-in-chief stated that the occurrence was of Tuesday 8 o' clock of night. On hearing hue and cry he reached in front of house of Anil Rana and saw accused persons Lakhiram, Santan armed with rod and others were armed with lathi. Sahdeo Soren was assaulted by Lakhiram and Santan with iron rod. Dhan was assaulted by Larkhiram with iron rod on his leg. 29. In cross-examination, this witness says that the occurrence took place in front of house of Anil Rana. Sahdeo Soren was lying on the ground and he had died. The blood was oozing from his forehead. 30. PW-10 Mansingh Hembrom in his examination-in-chief stated that upon hearing hue and cry he reached to the place of occurrence and saw Sahdeo Soren was assaulted by Lakhiram and Santan with rod over his forehead. He had fell down on the ground and died. He identify all the accused persons at the dock. 31. In cross-examination, this witness stated that he had seen Sahdeo Soren lying on the ground dead. In the morning he came to know who had assaulted to Sahdeo. 32. He had fell down on the ground and died. He identify all the accused persons at the dock. 31. In cross-examination, this witness stated that he had seen Sahdeo Soren lying on the ground dead. In the morning he came to know who had assaulted to Sahdeo. 32. PW-11 Mahendra Hembrom in his examination in chief supported the prosecution story and in cross-examination, this witness says that he had seen Sahdeo fallen on the ground in pool of blood and died. He was also assaulted with lathi by the accused persons. He also saw Haradhan, Lakhan, Sheonarayan, Dhan and others injured in this occurrence. It was a moon light on the occasion of ever of Bandhna festival. 33. PW-12 Sheo Narain Hembram was the tendered witness. 34. PW-13 Lakhan Hembram (the informant) in his examination-in-chief stated that the occurrence was of 13th January, 1987. It was Tuesday 8 o' clock of night and it was occasion of Bandhna festival. After having offered puja singing and dancing was going on. He, Haradhan, Dhan, Sheonarayan, Pradhan Soren, Sahdeo and others all reached in front of house of Anil Rana in the street and at the same time Lakhiram, Lubin, Santan, Chhotenath, Anand Hembram, Motilal, Ravan, Avinath, Maneshwar, Abhilash, Jeevan Hembram, Gome all 13 persons came there. Santan and Lakhiram were armed with iron rod and other persons were armed with lathi and they assaulted Sahdeo Soren. Lakhiram and Santan assaulted Sahdeo with iron rod on the forehead, whereby he fell down and died. Santan also assaulted with iron rod on his hand and Abhilash assaulted him with lathi on his back and his hand fractured. Haradhan, Mahendra, Dhan and Sheonarayn were also assaulted by the accused persons. The accused persons had made demand of harmonium which was defective. The written information was given by him which was written by Ramsharan Yadav at his behest he put his signature thereon which was marked Ext.3. 35. In cross-examination, this witness says that on the eve of Bandhna festival it was not the custom that people dance after having drunken. All the persons of their group after having taken food were singing and dancing. Lakhiram and Santan had assaulted to Sahdeo with rod (sabbal), whereby he fell down on the ground and died. He was also assaulted by Santan and Abhilash. All the persons of their group after having taken food were singing and dancing. Lakhiram and Santan had assaulted to Sahdeo with rod (sabbal), whereby he fell down on the ground and died. He was also assaulted by Santan and Abhilash. Santan gave one rod blow on his hand while Abhilash assaulted with lathi on his back. Sheonarayan, Haradhan and Mahendra were also assaulted. He gave the information of the occurrence to the police. Ram Sharan had called the police at the spot and his fard beyan was recorded by the police on which he put his signature. 36. PW-14 Dr. Akhilesh Pratap Singh who examined the injuries of the injured persons stated that on 14th January, 1987 he was posted as a Medical Officer State Dispensary at Palajori. On that day at 11:00 a.m. he examined Dhan Marandi and found following injuries: i. Lacerated wound 3” x ½” x ½” on the front of left leg with fracture of underlying bone tibia. Nature grievous caused by hard blunt substance. Aged within 24 hrs. 37. On the same day he also examined Lakhiram Hembram and found following injury: i. Dislocation of left elbow. Nature grievous caused by hard blunt substance. Aged within 24 hrs. 38. On the same day he also examined Haradhan Hembram and found following injury: i. Lacerated wound ¼” x ¼” x ¼” on the back of right hand. ii. Bruise 3” x 3” on back of right hand. Nature simple caused by hard blunt substance. Age within 24 hrs. 39. On the same day he also examined Mahendra Hembram and found following injury: i. Bruise 4” x 3” on the back just below the neck. ii. Bruise 3” x 3” on the left side back over scapula bone. Nature simple caused by hard blunt substance. Age within 24 hrs. 40. On the same day he also examined Sheo Narayan Hembram and found following injury: i. Lacerated wound ½” x ¼” x ¼” on back of head. ii. Bruise 2” x 2” on outer side of right upper arm. Nature simple caused by hard blunt substance. Age within 24 hrs. 41. All the injury reports were in his handwriting and signature which were marked as Ext.4 to 4/4. 42. ii. Bruise 2” x 2” on outer side of right upper arm. Nature simple caused by hard blunt substance. Age within 24 hrs. 41. All the injury reports were in his handwriting and signature which were marked as Ext.4 to 4/4. 42. PW-15 Ram Saran Yadav, the Investigation Officer in his examination-in-chief stated that on the written informant of Lakhan Hembram he has lodged the F.I.R. of Palajori P.S. Case No. 04 of 87. He also recorded the re-statement of informant and also recorded the statement of injured Bhawan Marandi. He also inspected the place of occurrence which was in village Kharko in front of house of Anil Rana in a street and saw the dead body of the deceased Sahdeo Soren lying thereon. The blood was oozing from the forehead and it was in pool of blood and there were two injuries. The inquest-report was also prepared by him and he also prepared the seizure memo of the blood stained soil. Thereafter, he recorded the statements of injured, namely, Sheonarayan Hembram, Haradhan Hembram, Mahendra Hembram and witnesses, namely, Pradhan Soren, Mansingh Hembram, Anil Rana, Sheolal Murmu, Sahdeo Marandi. He inspected the body of injured Sheolal Hembram, Haradhan Hembram, Mahendra Hembram and injured accused Muneshwar Hembram and prepared the inquest report and sent them to Palajori hospital for treatment. The postmortem report was also received by him and entry of the same was made in the case-diary. After completing the investigation, filed charge-sheet which is marked Ext.5. 43. In cross-examination, this witness says that witness—Haradhan Hembram had told him that on the occasion of Bandhna all after having eaten and drunk were singing and dancing reached near the house of Anil Rana and the occurrence took place on the issue of demand of Harmonium. 44. Learned counsel for the appellants has submitted that this criminal appeal was preferred on behalf of the five appellants/convicts out of them Lakhiram Hembram @ Lukhiram Hembram, Abhilash Hembram and Anand Hembram had died and no one come forward to pursue the appeal and the same was abetted so far as it relates to them. Appellant—Chhotenath Hembram has been traceless and Santan Hembram is alive. From impugned judgment, it appears that the appellant Santan Hembrom along with co-accused Lakhiram Hembram were convicted for the offence under Section 302 of I.P.C. and were sentenced to undergo rigorous imprisonment for life. Appellant—Chhotenath Hembram has been traceless and Santan Hembram is alive. From impugned judgment, it appears that the appellant Santan Hembrom along with co-accused Lakhiram Hembram were convicted for the offence under Section 302 of I.P.C. and were sentenced to undergo rigorous imprisonment for life. Appellant—Santan Hembrom was also convicted along with co-accused Abhilash Hembrom and Chhotenath Hembrom for the offence under Section 325 of I.P.C. and the appellant/accused Chhotenath Hembrom was also held guilty for the offence under Section 325 of the I.P.C. and for the same he was sentenced to undergo rigorous imprisonment for five years and also held guilty for the offence under Section 323 of the I.P.C. and was sentenced to undergo rigorous imprisonment for one year. Both the sentences passed against the appellants/convicts Abhilash Hembrom and Chhotenath Hembrom were directed to run consecutively. 45. Learned counsel for the appellants also submitted that conviction of the appellant Santan for the offence under Section 302 of the I.P.C. along with Lakhiram was upheld by the trial court on the basis of the testimony of the injured eye-witnesses and other eyewitnesses as well. On behalf of the prosecution, the postmortem report of deceased Sahdeo Soren was not adduced in evidence and same was not proved by examining the doctor, who had conducted the postmortem examination, as such, the cause of death is not proved. It is further submitted that the judgment of conviction and order of sentence passed against the appellants—Santan and Lakhiram as well for the offence under Section 302 of the I.P.C. bears infirmity and same is based on the perverse finding. Moreover, the court below had not held guilty to appellant—Lakhiram and Santan for the offence under Section 302 of the I.P.C. read with Section 34 of the I.P.C. or Section 149 of the I.P.C. There is no finding of the court below that the appellant Santan had shared the common intention along with co-accused Lakhi Ram in committing murder of Sahdeo Soren or he had shared the common object in commission of murder of Sahdeo Soren having formed an unlawful assembly armed with deadly weapon had committed murder in prosecution of common object. So far as the conviction of appellant— Chhotenath Hembram under Section 325 or 323 of the I.P.C. is concerned, as per evidence on record there were more than five accused were armed with deadly weapon. So far as the conviction of appellant— Chhotenath Hembram under Section 325 or 323 of the I.P.C. is concerned, as per evidence on record there were more than five accused were armed with deadly weapon. The appellant Chhotenath is also alleged to have armed with lathi along with other co-accused. There is no evidence against him attributing specific role to him in inflicting grievous injury with lathi. Accordingly, learned counsel for the appellants contended to acquit both the appellants for the charge framed against them. 46. Per contra, the learned A.P.P. appearing on behalf of the State vehemently opposed the contentions made by the learned counsel for the appellants and contended that the judgment of conviction and order of sentence passed by the learned trial court against the appellants does not bear any infirmity as the prosecution had been successful to prove its case beyond all reasonable doubt by adducing the eye-witness of the occurrence and maximum witness are the injured eye-witness and their testimony cannot be denied as their injury reports are also proved by the doctor who had examined them. So far as the death of Sahdeo Soren is concerned, as per eye-witness account, it was Lakhiram and Santan, who had assaulted him with iron rod and he died on the spot. Sahdeo Soren fell down on the ground and the blood was also oozing. As per eye-witness account he succumbed to the injuries at the spot, therefore, if the postmortem report is not proved by the doctor, same cannot be said to be fatal to the prosecution case. More so, the deceased had died at the spot on account of sustaining injuries. As per statement of Investigating Officer (PW-15), though he collected the postmortem report of deceased and entry of the same was made by him in the case diary but the same was not produced on behalf of the prosecution and doctor also did not prove the same. On the basis of latches on the part of the I.O. not adducing the postmortem report along with the charge-sheet, the prosecution case which is thoroughly proved with the testimony of eye-witnesses cannot be discredited. 47. The prosecution case is based on direct evidence. The occurrence took place on the issue of demand of harmonium on the occasion of Bandhna festival which was being celebrated in the village Kharko. 47. The prosecution case is based on direct evidence. The occurrence took place on the issue of demand of harmonium on the occasion of Bandhna festival which was being celebrated in the village Kharko. The two groups were celebrating Bandhna festival by singing and dancing and the persons of the accused group made demand of harmonium to celebrate the festival and it was told that same was not in working condition. At this the accused persons enraged and assaulted to the persons of the informant's side. This motive of the occurrence is proved from the testimony of all the eye-witnesses examined on behalf of the prosecution. Though in case of direct evidence, the motive has no significance, yet the motive is also given in the F.I.R. itself and same is also proved by the prosecution. 48. On behalf of the prosecution, PW-1 Haradhan Hembram, PW-2 Dhan Marandi, PW-11 Mahendra Hembram and PW-13 Lakhan Hembram are the injured eye-witness of the occurrence. 49. PW-13 Lakhan Hembram has proved the contents of the written information as Ext.3 on the basis of which the F.I.R. was lodged. This injured eye-witness has also stated that on 13.01.1987 at 8 o' clock of night on the eve of Bandhna festival he along with Haradhan, Dhan, Sheo Narayan, Pradhan Soren, Sahdeo and others while singing and dancing reached near the house of Anil Rana in a street. At the same time Lakhiram, Lubin, Santan, Chhotenath, Anand Hembram, Moti lal, Ravan, Obinath, Maneshwar, Abhilash, Jeevan Hembram, Gome, all 13 came there. Lakhiram and Santan both had assaulted to Sahdeo with iron rod which hit on his head who fell down on the ground and died at the place of occurrence. This witness also stated that Santan had also assaulted him with iron rod on his hand and his hand fractured. Abhilash assaulted with lathi on his back. Haradhan, Mahendra, Dhan and Sheo Narayn were also assaulted by the accused persons. This witness also stated that he went to the police station concerned to inform in regard to the occurrence. The contents of written information were written by Ram Sharan Yadav on which he put his signature which was marked Ext.3. This witness also stated that on the occasion of Bandhna festival it was not custom of drinking and eating. The dispute arose on demand of harmonium which was not in working condition. The contents of written information were written by Ram Sharan Yadav on which he put his signature which was marked Ext.3. This witness also stated that on the occasion of Bandhna festival it was not custom of drinking and eating. The dispute arose on demand of harmonium which was not in working condition. The injury report of this witness is also proved by PW-14 Dr. Akhilesh Pratap Singh, who found dislocation of left elbow. Nature of injury was grievous caused by hard and blunt object. 50. PW-1 Haradhan Hembram is also the injured eye-witness. This witness has stated that on the eve of Bandhna festival at 8 o' clock of night while singing and dancing near the house of Anil Rana, the persons of another group of the village Kharko came dancing and singing and made demand of harmonium, the same being in defective condition could not be given to them which enraged the accused persons and all the accused persons went to the house of Maneshwar and brought the weapons from his house. Lakhiram and Santan armed with iron rod, Motilal, Abhilash were armed with lathi. Chhotenath, Lobin, Gameshwar, Ravan Murmu, Abhinath Hembroam, Maneshwar hembram, Jeevan Hembram and Madan Soren were also with them. Sahdeo Soren was inflicted with iron rod by Santan which hit on his head, whereby Sahdeo fell down on the ground and died at the spot. When they came to rescue then Lakhiram assaulted him on his hand by rod. Dhan Marandi was also assaulted by Lakhiram with iron rod. This witness was also cross-examined on behalf of the accused persons but on contrary conclusion could be drawn in his statement. The injuries of this witness was also examined by PW-14 Dr. Akhilesh Pratap Singh, who examined his injuries on 14th January, 1987 at 11:00 a.m. and found Lacerated wound ¼” x ¼” x ¼” on the back of right hand, Bruise 3” x 3” on back of right hand. The nature of the injury was simple caused by hard blunt substance. 51. PW-2 Dhan Marandi is also the injured eye-witness and he has also corroborated the prosecution story. This witness stated that the occurrence took place in front of house of Anil Rana on the occasion of Bandhna festival at 8 o' clock of night of Tuesday. The nature of the injury was simple caused by hard blunt substance. 51. PW-2 Dhan Marandi is also the injured eye-witness and he has also corroborated the prosecution story. This witness stated that the occurrence took place in front of house of Anil Rana on the occasion of Bandhna festival at 8 o' clock of night of Tuesday. Lakhiram, Santan, Chhotenath Hembram, Gameshwar, Lubin, Ravan Murmu, Obinath Hembram, Abhilash, Maneshwar Hembram, Jeevan Hembram, Madan Soren, Motilal Hembram, Anand Hembram, all the accused persons made demand of harmonium, the same being in defective condition could not be given which enraged the accused persons and they brought the weapons from the house of Maneshwar. Santan and Obinath were armed with rod, Motilal, Obinath and Anand were armed with lathi. Sahdeo Soren was assaulted by Santan and Lakhiram with iron rod which hit on his head and he died on the spot. He also came to rescue. He Haradhan, Lakhan and Sheo Narayan came to rescue and all were assaulted by the accused persons. He was assaulted by Lakhiram with iron rod. Haradhan was also assaulted by Lakhiram with iron rod. Lakhan was assaulted by Santan with iron rod and Abhilash assaulted with lathi. Sahdeo Soren died on spot on account of sustaining injuries. The injury of this witness was examined by the doctor and found lacerated wound 3” x ½” x ½” on the front of left leg with fracture of underlying bone tibia. The nature of injury was grievous caused by hard blunt substance. 52. PW-11 Mahendra Hembram is also the injured eyewitness. This witness also stated that at the time of occurrence on the occurrence of Bandhna festival singing and dancing was going on. The persons of another group 13 in number came from the opposite side in front of house of Anil Rana. Lakhiram and Santan were armed with iron rod while others were armed with lathi. Sahdeo Soren was assaulted by Lakhiram and Santan by iron rod, who fell down on the ground and died on the spot. Haradhan, Lakhan, Sheo Narayan, Dhan and others came to rescue and they were also assaulted by the accused persons. Motilal had assaulted him with lathi which hit on his back and arm. Haradhan was assaulted by Lakhiram with iron rod. Lakhan was assaulted by Lakhiram with iron rod. Haradhan, Lakhan, Sheo Narayan, Dhan and others came to rescue and they were also assaulted by the accused persons. Motilal had assaulted him with lathi which hit on his back and arm. Haradhan was assaulted by Lakhiram with iron rod. Lakhan was assaulted by Lakhiram with iron rod. The accused persons had made demand of harmonium and on the very issue this occurrence took place. In cross-examination, this witness also stated that he had seen the deceased Sahdeo lying in pool of blood, who died at the spot due to sustaining injuries. On the occasion of Bandhna festival it was moonlight. 53. The injury report of this witness was also proved by the PW-14 Dr. Akhilesh Pratap Singh, who stated that on 14th January, 1987, he examined the injuries of Mahendra Hembram and found Bruise 4” x 3” on the back just below the neck. Bruise 3” x 3” on the left side back over scapula bone. The nature of the injury was simple caused by hard blunt substance. 54. In addition to the aforesaid injured eye-witness, the witness PW-3 Sheolal Murmu, PW-5 Shahdeo Marandi, PW-8 Pradhan Soren, PW-9 Pane Soren are the eye-witness of the occurrence and they have supported the prosecution story and stated that on the eve of Bandhna festival when two groups of the village while singing and dancing came in front of house of Anil Rana, the persons of opposite group made demand of harmonium. The same being in defective condition could not be given which enraged the persons of the accused group, who reached to the house of Maneshwar and brought the weapons from there. Santan and Lakhiram were armed with iron rod while others were armed with lathi. Santan and Lakhiram both assaulted to Sahdeo Soren which hit on his head and he died on the spot on account of sustaining injuries. The injured witness, namely, PW-1 Haradhan Hembram, PW-2 Dhan Marandi, PW-11 Mahendra Hembram, PW-13 Lakhan Hembram and PW-12 Sheo Narayan Hembram also came to rescue. Sahdeo Soren was assaulted by the accused persons with iron rod and lathi as well. There is no contradiction in testimony of these witnesses deposed before the trial court and the statement given by these witnesses to the I.O. during investigation. 55. PW-15 Ram Sharan Yadav, the Investigating Officer was examined on behalf of the prosecution. Sahdeo Soren was assaulted by the accused persons with iron rod and lathi as well. There is no contradiction in testimony of these witnesses deposed before the trial court and the statement given by these witnesses to the I.O. during investigation. 55. PW-15 Ram Sharan Yadav, the Investigating Officer was examined on behalf of the prosecution. He has proved the place of occurrence which is just in front of house of Anil Kumar Rana in village Kharko in a street and he also proved the inquest report of the deceased and stated that he also got the postmortem conducted of the deceased and same was also received by him and entry of the same was made in the case-diary. This witness also stated that he also prepared the seizure memo of the blood stained soil and also recorded the statement of injured witness—Sheo Narayan Hembram, Haradhan Hembram, Mahendra Hembram and Lakhan Hembram as well. He also recorded the statement of eye-witness, Pane Soren, Mansingh Hembram, Sahdeo Marandi and also received the injury reports of the injured witnesses. The prosecution could bring any contradiction. In cross-examination this witness says that all the eye-witnesses of the occurrence had narrated in regard to the occurrence. The testimony of all the eyewitnesses are found in consonance with the statement given to the I.O. under Section 161 Cr. P.C. 56. Therefore, the witness who belong to the same group; but their testimony cannot be discarded on the sole ground, more so the same is found free from embellishment cogent and trustworthy in view of the settled propositions of law as laid down by the Hon'ble Apex Court as shown hereunder: (i) The Hon'ble Apex Court in the case of Vijay Shankar Shinde v. State of Maharashtra, (2008) 2 SCC 670 in paragraph 9 has held as under: “9. The trial court was not justified in holding that because PW 11 was an injured witness he may have reason to falsely implicate the accused. However, as rightly observed by the trial court and the High Court, the evidence of PWs 12 and 13 does not suffer from any deficiency. PWs 11, 12 and 13 were cross-examined at length but nothing substantial could be elicited to destroy the credibility of their version. However, as rightly observed by the trial court and the High Court, the evidence of PWs 12 and 13 does not suffer from any deficiency. PWs 11, 12 and 13 were cross-examined at length but nothing substantial could be elicited to destroy the credibility of their version. As a matter of fact, the evidence of injured person who is examined as a witness lends more credence, because normally he would not falsely implicate a person thereby protecting the actual assailant.” (ii). The Hon'ble Apex Court in the case of Ashok Kumar Chaudhary v. State of Bihar, (2008) 12 SCC 173 in paragraph 8 has held as under: “8. Insofar as the question of creditworthiness of the evidence of relatives of the victim is concerned, it is well settled that though the court has to scrutinise such evidence with greater care and caution but such evidence cannot be discarded on the sole ground of their interest in the prosecution. The relationship per se does not affect the credibility of a witness. Merely because a witness happens to be a relative of the victim of the crime, he/she cannot be characterised as an “interested” witness. It is trite that the term “interested” postulates that the person concerned has some direct or indirect interest in seeing that the accused is somehow or the other convicted either because he had some animus with the accused or for some other oblique motive.” (iii). The Hon'ble Apex Court in the case of Leela Ram (dead) through Duli Chand v. State of Harayana, (1999) 9 SCC 525 in paragraph 12 has held as under: “12. It is indeed necessary to note that one hardly comes across a witness whose evidence does not contain some exaggeration or embellishment — sometimes there could even be a deliberate attempt to offer embellishment and sometimes in their overanxiety they may give a slightly exaggerated account. The court can sift the chaff from the grain and find out the truth from the testimony of the witnesses. Total repulsion of the evidence is unnecessary. The evidence is to be considered from the point of view of trustworthiness. If this element is satisfied, it ought to inspire confidence in the mind of the court to accept the stated evidence though not however in the absence of the same.” 57. Total repulsion of the evidence is unnecessary. The evidence is to be considered from the point of view of trustworthiness. If this element is satisfied, it ought to inspire confidence in the mind of the court to accept the stated evidence though not however in the absence of the same.” 57. From the testimony of these injured eye-witness and other eyewitness it is proved beyond reasonable doubt by the prosecution that it was appellants Santan and Lakhiram, who had assaulted to the deceased Shahdeo Soren with iron rod which hit on his forehead whereby he fell down on the ground in a pool of blood and died at the spot. Though on behalf of the prosecution, the postmortem report of the deceased Shahdeo Soren is not adduced and same is not proved by adducing the doctor, who had conducted the postmortem examination of the deceased. 58. PW-15 Ram Sharan Yadav, the Investigating Officer has stated that he had collected the postmortem report of the deceased and the entry of the same was also made, as such, certainly the postmortem was also conducted and report was also received by the I.O. but there is remissness on the part of the I.O. that he did not produce the same along with the charge-sheet and also did not record the statement of the doctor, who had conducted the postmortem of the deceased. Non-production of the postmortem report and not proving the same by producing the doctor is not found fatal in the present case, since, the deceased Sahdeo Soren died at the spot after having sustained the injuries which were inflicted to him by appellants—Santan and Lakhiram which is well proved from the testimony of the injured eye-witnesses and other eye-witness as well. If the death of deceased-Sahdeo Soren would have caused later on, in that circumstance, the postmortem report would have been relevant to show the proximate cause of death since after sustaining injuries from iron rod Sahdeo Soren died at the spot, as per eye-witness account, therefore, the non-production of postmortem report and no proving the same by producing the doctor is not found fatal to the prosecution case. More so, the testimony of injured eye-witness and other eye-witness account found trustworthy which inspire confidence of the Court to believe the same. 59. More so, the testimony of injured eye-witness and other eye-witness account found trustworthy which inspire confidence of the Court to believe the same. 59. It is also evident from the evidence on record that the I.O. had designedly not produced the postmortem of the deceased, though the same was conducted and report of the same was also collected by him from the doctor who had conducted the postmortem examination. In such, circumstances, giving benefit of defective investigation to the accused would tantamount to play in the hand of I.O. which is designedly defective. The contaminated conduct of the officials should not stand in way of the court while evaluating the evidence on record, otherwise the designed mischief would be perpetuated and justice would be denied to the victim party. 60. The Hon'ble Apex Court in the case of Dhanaj Singh @ Shera v. State of Punjab, 2004 Cri. L.J. 1807 in paragraph nos. 5, 6 and 7 has held as under: “5. In the case of a defective investigation the Court has to be circumspect in evaluating the evidence. But it would not be right in acquitting an accused person solely on account of the defect; to do so would tantamount to playing into the hands of the investigating officer if the investigation is designedly defective. (See Karnel Singh v. State of M.P. (1995) 5 SCC 518 ). 6. In Paras Yadav v. State of Bihar, (1999) 2 SCC 126 it was held that if the lapse or omission is committed by the investigating agency or because of negligence the prosecution evidence is required to be examined dehors such omissions to find out whether the said evidence is reliable or not. The contaminated conduct of officials should not stand on the way of evaluating the evidence by the courts; otherwise the designed mischief would be perpetuated and justice would be denied to the complainant party. 7. As was observed in Ram Bihari Yadav v. State of Bihar, (1998) 4 SCC 517 , if primacy is given to such designed or negligent investigation, to the omission or lapses by perfunctory investigation or omissions, the faith and confidence of the people would be shaken not only in the Law enforcing agency but also in the administration of justice. The view as again reiterated in Amar Singh v. Balwinder Singh, (2003) 2 SCC 518 . The view as again reiterated in Amar Singh v. Balwinder Singh, (2003) 2 SCC 518 . As noted in Amar Singh's case (supra) it would have been certainly better if the firearms were sent to the Forensic Test Laboratory for comparison. But the report of the Ballistic Expert would be in the nature of an expert opinion without any conclusiveness attached to it. When the direct testimony of the eye-witnesses corroborated by the medical evidence fully establishes the prosecution version failure or omission of negligence on part of the IO cannot affect credibility of the prosecution version.” 61. Learned counsel for the appellants also submitted that the trial court had not framed the charge against the accused Santan and other accused with the help of Section 34 or 149 of the I.P.C. From the testimony of eye-witnesses, two accused, namely, Lakhiram and Santan had assaulted the deceased—Sahdeo Soren. On account of inflicting the injuries by which accused/assailant, the deceased succumbed to injuries is not ascertained in lack of postmortem report, as such, the conviction of the appellant Santan cannot be upheld. 62. This contention of the learned counsel for the appellants is not sustainable in view of the evidence on record as all the injured eyewitness and other eye-witnesses have stated that Lakhiram and Santan both were armed with iron rod and both had assaulted to the deceased—Sahdeo Soren. On account of sustaining injuries inflicting with iron rod Sahdeo Soren fell down on the ground in a pool of blood and died at the spot. In such circumstance, it is not necessary to determine that the deceased died on account of sustaining injuries inflicted by which of two of the assailants, namely, Lakhiram and Santan. From the evidence adduced on behalf of the prosecution, it is found that all the accused persons who were 13 in number at the time of occurrence and all were armed with deadly weapons had formed an unlawful assembly. On the moment of refusal of handing over the harmonium, the accused persons reached to the house of co-accused Maneshwar after having enraged and brought weapons from the house of Maneshwar whose house was adjacent to the place of occurrence, as evident from the evidence on record. On the moment of refusal of handing over the harmonium, the accused persons reached to the house of co-accused Maneshwar after having enraged and brought weapons from the house of Maneshwar whose house was adjacent to the place of occurrence, as evident from the evidence on record. The accused Santan and Lakhiram came from the house of Maneshwar armed with iron rod while the other accused came armed with lathi whose names have been narrated by the eye-witnesses in their testimony. 63. The appellant Santan and co-accused Lakhiram who died during pendency of this appeal both armed with iron rod came from the house of Maneshwar and inflicted the fatal blow to Sahdeo Soren. Both these accused persons had gone to the house of Maneshwar and came back armed with iron rod then inflicted injuries to Sahdeo Soren which was sufficient in ordinary course of nature to cause death of Sahdeo Soren reflected sharing the common intention to commit murder of Sahdeo Soren. Even if the trial court had not framed the charge against the accused Lakhiram with the help of Section 34 or 149 of the I.P.C., yet from the testimony of the injured eye-witness and other eye-witness account it is found that both the appellants Lakhiram and Santan had shared the common intention in commission of murder of the deceased Sahdeo Soren. As such, the conviction of appellants Santan and Lakhiram under Section 302 read with Section 34 of the I.P.C. is upheld. 64. The Hon'ble Apex Court in the case of Chittarmal v. State of Rajasthan, (2003) 2 SCC 266 in paragraph 14 held as under: “14. It is well settled by a catena of decisions that Section 34 as well as Section 149 deal with liability for constructive criminality i.e. vicarious liability of a person for acts of others. Both the sections deal with combinations of persons who become punishable as sharers in an offence. Thus they have a certain resemblance and may to some extent overlap. But a clear distinction is made out between common intention and common object in that common intention denotes action in concert and necessarily postulates the existence of a prearranged plan implying a prior meeting of the minds, while common object does not necessarily require proof of prior meeting of minds or preconcert. But a clear distinction is made out between common intention and common object in that common intention denotes action in concert and necessarily postulates the existence of a prearranged plan implying a prior meeting of the minds, while common object does not necessarily require proof of prior meeting of minds or preconcert. Though there is a substantial difference between the two sections, they also to some extent overlap and it is a question to be determined on the facts of each case whether the charge under Section 149 overlaps the ground covered by Section 34. Thus, if several persons numbering five or more, do an act and intend to do it, both Section 34 and Section 149 may apply. If the common object does not necessarily involve a common intention, then the substitution of Section 34 for Section 149 might result in prejudice to the accused and ought not, therefore, to be permitted. But if it does involve a common intention then the substitution of Section 34 for Section 149 must be held to be a formal matter. Whether such recourse can be had or not must depend on the facts of each case. The non-applicability of Section 149 is, therefore, no bar in convicting the appellants under Section 302 read with Section 34 IPC, if the evidence discloses commission of an offence in furtherance of the common intention of them all. [See Barendra Kumar Ghosh v. King Emperor, AIR 1925 PC 1 , Mannam Venkatadari v. State of A.P. (1971) 3 SCC 254 : 1971 SCC (Cri) 479 : AIR 1971 SC 1467 , Nethala Pothuraju v. State of A.P. (1992) 1 SCC 49 : 1992 SCC (Cri) 20 : AIR 1991 SC 2214 and Ram Tahal v. State of U.P. (1972) 1 SCC 136 : 1972 SCC (Cri) 80 : AIR 1972 SC 254 ].” 65. As such in view of re-appreciation of the evidence on record, the conviction of appellant Santan for the charge under Section 302 read with Section 34 of the I.P.C. is upheld. 66. So far as the conviction of appellant Chhotenath Hembram for the charge under Section 323 and 325 of the I.P.C. is concerned, from the testimony of the eye-witness and injured eye-witness it is well proved that Chhotenath had inflicted injuries simple in nature with lathi to Sheonarayan and had inflicted grievous injuries to Dhan Marandi with lathi. 66. So far as the conviction of appellant Chhotenath Hembram for the charge under Section 323 and 325 of the I.P.C. is concerned, from the testimony of the eye-witness and injured eye-witness it is well proved that Chhotenath had inflicted injuries simple in nature with lathi to Sheonarayan and had inflicted grievous injuries to Dhan Marandi with lathi. Therefore, the conviction of the appellant no. 4 Chhotenath for the charge under Sections 323 and 325 of the I.P.C. does not bear any infirmity and same needs no interference by this Court. 67. After critical appraisal of the prosecution case and the evidence available on record, we are of the considered opinion that the learned Court below has committed no illegality or infirmity in recording the findings of conviction of accused/appellant no. 3 Santan Hembram and appellant no. 4 Chhotenath Hembram. As such there appears no justification for interference by this Court in the impugned judgment of conviction. The judgment of conviction dated 3rd February, 1994 passed by the 3rd Additional Sessions Judge, Deoghar convicting the aforesaid accused/appellants is, hereby, affirmed. Accordingly, this appeal is, hereby, dismissed. 68. So far as the sentence passed against the appellant no. 3 Santan is concerned, the learned trial court had sentenced him to undergo rigorous imprisonment for life under Section 302 of the I.P.C. without imposing fine; while in view of Section 302 of the I.P.C. imposing fine along with imprisonment is also mandatory. Such omission on the part of the learned trial court is curable. Accordingly, the fine of Rs. 10,000/- is also imposed and to this extent the sentence passed by the learned trial court stands modified. 69. So far as the sentence passed against the appellant no. 4 Chhotenath is concerned, the learned trial court had sentenced him to undergo rigorous imprisonment for five years under Section 325 of the I.P.C.; while in view of Section 325 of I.P.C. imposing fine along with imprisonment is also mandatory. Such omission on the part of the learned trial court is curable. Accordingly, the fine of Rs. 1,000/- is also imposed and to this extent the sentence passed by the learned trial court stands modified. 70. The appellant no. Such omission on the part of the learned trial court is curable. Accordingly, the fine of Rs. 1,000/- is also imposed and to this extent the sentence passed by the learned trial court stands modified. 70. The appellant no. 3/convict, namely, Santan Hembram, who was granted bail vide order dated 28th March, 1995 during pendency of the appeal, his bail bonds are cancelled and he would surrender before the learned trial court, who would send him jail to serve out the sentence. So far as the appellant no. 4 Chhotenath is concerned, he being traceless his bail bonds were cancelled vide order 2nd April, 2019. The learned trial court is directed to ensure the production of the appellant no. 4 before it and to send him jail to serve out the sentence passed against him. 71. Let the lower court's record be sent to the court concerned forthwith along with a copy of this judgment for necessary compliance. I agree - Sujit Narayan Prasad, J.