JUDGMENT : Sujit Narayan Prasad, J. This Court, after having heard learned Amicus for the appellant nos.1 and 2 and learned A.P.P for the State, perused the materials available on record as also the judgment of conviction and order of sentence and closely scrutinized the deposition of witnesses recorded by learned trial Court, is passing order/judgment in open Court in presence of learned Amicus and learned A.P.P. 2. Learned Amicus at the outset has submitted that at the time of occurrence, appellant no. 1- Baiju @ Baijnath Paswan, and appellant no. 2-Raj Kumar Paswan were juvenile but subsequent thereto submission has been made that the aforesaid issue has neither been raised before the trial Court nor there was any enquiry to assess their age and as such she is not pressing this issue. 3. The instant appeal has been preferred against the judgment of conviction dated 27th July, 1993 and order of sentence dated 31st July, 1993, passed by the learned Additional District & Sessions Judge-II, Godda, in S.T. No.15 of 1993 [8 of 1993], by which the appellants, named above, have been found guilty and convicted for the offence punishable under Sections 302/34 of the Indian Penal Code and sentenced to undergo life imprisonment for the said offence. The legality and propriety of the judgment of conviction and order of sentence is under challenge before this Court under its appellate jurisdiction. 4. This Court, before proceeding to examine the legality and propriety of the judgment of conviction and order of sentence, deems it fit and proper to refer the background of institution of prosecution case against the present appellants. It is evident from the fard beyan given by informant-Prabhu Dayal Ram (P.W. 1) before the Sub-Inspector of Police, Meharma on 05.11.1991 in the barandah of Government Hospital, Meharma that Betel Shop of the informant is situated near Meharma More, near Main Road. After two shops the betel shop of his brother, namely Chandradeep Ram was situated. On 05.11.1991 at about 5.30 (evening) p.m., Chandradeep Ram, brother of the informant, has told him that since it is Dipawali today (05-11-1991) as such he (Chandradeep Ram) is going to home to light the Diya and requested the informant to sit at his shop for a while. Thereafter, the informant giving charge of his shop to one Talu Besara (P.W. 6) sat over the shop of his brother, namely, Chandradeep Ram. Thereafter, the informant giving charge of his shop to one Talu Besara (P.W. 6) sat over the shop of his brother, namely, Chandradeep Ram. It has further been stated that at about 6.30 p.m. his brother- Chandradeep Ram returned to shop after lighting the Diya and while the informant was returning to his shop (Gumti), the accused persons – Dewan Paswan (now deceased), Baiju @ Baijnath Paswan and Raj Kumar Paswan came there. Baiju @ Baijnath Paswan started abusing to his younger brother (Chandradeep Ram) and said why Chandradeep Ram demanded dues of betel (Paan) in open market, which caused insult to him. Thereafter, informant’s younger brother forbade him to abuse but Dewan Paswan using abusive language told to kill Chandradeep Ram. Whereafter, the informant requested the accused persons not to behave in such a manner. But, Baiju @ Baijnath Paswan and Raj Kumar Paswan started quarrelling with Chandradeep Ram. Raj Kumar Paswan held both the hands of Charandeep Ram behind his back and caught tightly. Whereupon, Dewan Paswan exhortated to kill his brother (Chandradeep Ram). Thereafter Baiju @ Baijnath Paswan brought out one Spring-fitted Knife from the right pocket of his jacket and by pressing the spring of the knife gave knife blow below the ribcage on the left abdomen of Chandradeep Ram. After getting knife blow his younger brother started shouting and moved towards his shop and became unconscious near his (informant’s) shop. Thereafter, all the accused persons, namely, Dewan Paswan, Raj Kumar Paswan and Baiju @ Baijnath Paswan fled away to their home. It has further been stated that thereafter he raised halla (alarm) and chased them but they fled away. Thereafter, the informant alongwith Paras Modi, Dilip Modi and Talu Besara took his brother to government hospital, Mehrama where he was declared dead. In the fard beyan, the informant has assigned the reason for giving knife blow to the deceased that there was due of Rs. 200/- against the accused persons, which his brother (deceased) demanded, that has been treated by accused-Baiju @ Baijnath Paswan as his insult and therefore, stabbed knife in the abdomen of his younger brother, which resulted into his death. 5. On the basis of said fard beyan, F.I.R. being Meharma P.S. Case No. 154 of 1991 was registered against the accused persons for the offence under Sections 302 / 34/ 114 of the Indian Penal Code and the matter was investigated. 5. On the basis of said fard beyan, F.I.R. being Meharma P.S. Case No. 154 of 1991 was registered against the accused persons for the offence under Sections 302 / 34/ 114 of the Indian Penal Code and the matter was investigated. After investigation, the police submitted the charge-sheet in the case. 6. The Chief Judicial Magistrate, Godda took cognizance of the offence on 10.02.1992 and committed the case to the Court of Sessions on 05.01.1993 wherefrom the case was received in the Court of learned Additional District & Sessions Judge-II, Godda on 03.02.1993 for trial and disposal. 7. In course of trial, the prosecution has examined altogether ten witnesses, namely, Prabhu Dayal Ram (P.W. 1); Subodh Ram (P.W. 2); Paras Modi (P.W. 3); Dr. Pradeep Kumar Sinha (P.W. 4-doctor); Dilip Modi (P.W. 5); Talu Besara (P.W. 6); Rita Devi (P.W. 7); Kamleshwari Prasad Singh (P.W. 8); Nageshwar Bhagat (P.W. 9) and Shankar Prasad Yadav (P.W. 10). 8. The trial Court, after recording the evidence of witnesses, examination-in-chief and cross-examination, recorded the statement of the accused persons under Section 313 of the Criminal Procedure Code, and found the charges levelled against the appellants proved beyond all reasonable doubts. Accordingly, the appellants had been found guilty and convicted for the offence punishable under Sections 302 / 34 of the Indian Penal Code and sentenced to undergo life imprisonment for the said offence. 9. The aforesaid judgment of conviction and order of sentence is under consideration before this Court as to whether the trial Court while convicting the accused persons has committed any illegality or not? 10. This Court, before proceeding to consider the issue of legality and propriety of judgment of conviction and order of sentence, requires to mention that this Court vide order dated 24.08.1993 directed to release the appellant no. 2, namely, Raj Kumar Paswan and appellant no.3, namely, Dewan Paswan on bail on furnishing bail bonds of Rs. 10,000/- and appellant no. 1, namely, Baiju @ Baijnath Paswan was directed to be released on bail vide order dated 28.10.1994 on furnishing bail bonds of Rs. 10,000/-. 11. 2, namely, Raj Kumar Paswan and appellant no.3, namely, Dewan Paswan on bail on furnishing bail bonds of Rs. 10,000/- and appellant no. 1, namely, Baiju @ Baijnath Paswan was directed to be released on bail vide order dated 28.10.1994 on furnishing bail bonds of Rs. 10,000/-. 11. It appears from the order-sheet that appellants since were not represented, this Court vide order dated 24th October, 2018 directed the Officer-in-Charge of the concerned Police Station to ascertain the whereabouts of the appellants and report to this Court through the Superintendent of Police of the district Godda as to whether the appellants are alive or not. The Officer-in-Charge was further directed to inform the appellants, once they are found, that their case remained unrepresented and the appellants should ensure proper representation on their behalf on the next date of hearing. For ready reference, order dated 24.10.2018 is reproduced as under: “No one appears on behalf of the appellants. Let the Officer-in-Charge of the concerned Police Station ascertain the whereabouts of the appellants and report to us through the Superintendent of Police of the district Godda as to whether the appellants are alive or not. The Officer-in-Charge shall inform the appellants, once they are found, that their case remained unrepresented and the appellants should ensure proper representation on their behalf on the next date of hearing. The appellants, if they so desire, may approach the Jharkhand High Court Legal Services Committee for engagement of a counsel. The appeal shall be listed again on 17th December, 2018. Registry to communicate this order to the Officer-in-Charge of the concerned Police Station through the Superintendent of Police, Godda.” 12. Pursuant thereto, a report dated 11.03.2019 was submitted by the concerned Officer-in-Charge, which was taken on record, wherein it has been stated that the appellant no.1 namely Baiju @ Baijnath Paswan and the appellant no.2 namely Raj Kumar Paswan are residing at the address disclosed in this criminal appeal, however, the appellant no.3 namely Dewan Paswan has died, in support of which the Officer-in-Charge, Meharama Police Station has annexed certificate of the Mukhia, Gram Panchayat, Meharama certifying that the appellant no.3 namely, Dewan Paswan has died. Accordingly, the matter was listed on 11.03.2019 but none appeared for the surviving appellants, as such Mrs. Alpana Verma, learned counsel was appointed as Amicus to argue the criminal appeal on behalf of appellant no. Accordingly, the matter was listed on 11.03.2019 but none appeared for the surviving appellants, as such Mrs. Alpana Verma, learned counsel was appointed as Amicus to argue the criminal appeal on behalf of appellant no. 1 and 2, reserving right to the appellants to engage a counsel of their choice. For ready reference, order dated 11.03.2019 is quoted as under: “Mr. Ram Prakash Singh, the learned APP appears for the State of Jharkhand. A report dated 11.03.2019 has been submitted by the Officer-in-Charge, PS- Meharama, District- Godda. Taken on record. It is stated that the appellant no.1 namely Baiju @ Baijnath Paswan and the appellant no.2 namely Raj Kumar Paswan are residing at the address disclosed in this criminal appeal, however, the appellant no.3 namely Dewan Paswan has died. Alongwith this report, the Officer-in-Charge, PS- Meharama has produced a certificate of the Mukhia, Gram Panchayat, Meharama certifying that the appellant no.3 namely, Dewan Paswan has died. By order dated 24.10.2018, the appellants were permitted to approach the Jharkhand High Court Legal Services Committee for engagement of a counsel. Today again, when the matter is called-out no one appears for the surviving appellants. Accordingly, reserving the right of the appellants to engage a counsel of their choice, Mrs. Kalpana Verma, the learned counsel is appointed as Amicus to argue this criminal appeal on 2 behalf of the appellant nos.1 and 2. The Registry is directed to serve a complete set of paper-book to Mrs. Kalpana Verma, the learned Amicus. Post the matter on 14.03.2019 under the heading “For Orders”. Let a copy of the order be forwarded to the Secretary, Jharkhand High Court Legal Services Committee, for information. Fee for the Amicus shall be fixed after disposal of this criminal appeal.” In pursuance to the aforesaid order, Mrs. Alpana Verma, Amicus has appeared on behalf of appellant nos. 1 and 2 and argued the case at length. 13. The appellant no. 3 has died during pendency of the criminal appeal and it appears from the record that no legal representative has made any application on behalf of appellant no. 3, as required under the provisions of Code of Criminal Procedure. This Court, therefore, is of the view that the appeal so far it relates to appellant no. 3 is concerned is held to be abated. 14. Accordingly, appeal is abated so far it relates to appellant no. 3. 15. Mrs. 3, as required under the provisions of Code of Criminal Procedure. This Court, therefore, is of the view that the appeal so far it relates to appellant no. 3 is concerned is held to be abated. 14. Accordingly, appeal is abated so far it relates to appellant no. 3. 15. Mrs. Alpana Verma, learned Amicus appearing for appellant nos. 1 and 2, assailing the judgment of conviction and order of sentence, has submitted that there is gross infirmity in the impugned order since there is discrepancy in the deposition of the prosecution witness and as per settled legal position of law when there is discrepancy in the deposition the judgment of conviction and order of sentence is required to be vitiated. It has been pointed out by referring to the deposition of P.W. 3, namely, Paras Modi that he has given altogether complete different picture as has been given by informant-P.W. 1, Prabhu Dayal Ram and P.W. 6, Talu Besra, the so-called eye-witnesses, version upon which the entire prosecution case rests and as such the testimony of P.W. 1 and 6, which has been considered to be testimony of eye-witness by the trial Court cannot be said to be reliable testimony to prove the culpability of appellant nos. 1 and 2. 16. On the other hand, Mr. Bhola Nath Ojha, learned Addl. P.P. appearing on behalf of State has submitted that there is no infirmity in the impugned judgment of conviction and order of sentence since the charge has been found proved beyond all reasonable doubts taking into consideration the testimony of eye-witnesses, P.W. 1 and 6 being corroborated by the Investigating Officer and doctor who has conducted post mortem. It has further been submitted that the post mortem report suggests that the death occurred due to injury caused by sharp-cutting weapon. In the backdrop of aforesaid submission, it has been submitted that the instant appeal lacks merit and the same is fit to be dismissed. 17. We have heard learned Amicus for the appellants and learned A.P.P for the State. It is evident from the impugned judgment as under heading “Finding”, that there is reference of prosecution witness along with documents, which are exhibited before the trial Court. 17. We have heard learned Amicus for the appellants and learned A.P.P for the State. It is evident from the impugned judgment as under heading “Finding”, that there is reference of prosecution witness along with documents, which are exhibited before the trial Court. The trial Court has taken into consideration mainly the evidence of P.W. 1- Prabhu Dayal Ram and P.W. 6-Talu Besara considering them to be eye-witness of the occurrence apart from the corroborative deposition of Investigating Officer (P.W. 8) and the Medical Officer (P.W. 4), therefore, this Court, deems it fit and proper to appreciate the deposition of P.W. 1 and P.W.6, basis upon which, the charge leveled against the appellants have been proved beyond all reasonable doubts. 18. P.W. 1-Prabhu Dayal Ram, who happens to be the informant and brother of the deceased has deposed at paragraph 1 of his examination-in-chief that on 05.11.1991 at about 6.30 p.m. (evening) he was sitting in his betel shop. The shop of his younger brother (deceased) was just after the shops of Shankar Das and Baijnath Yadav. It has been deposed that since it was the day of dipawali, his younger brother after telling him to sit in his shop went to home to light the lamps (diya) and returned to his shop. When his younger brother returned from home, the accused persons, namely, Dewan Paswan, Baijnath Paswan and Raj Kumar Paswan came from the west of his shop. Thereafter, Dewan Paswan instigated Baijnath Paswan to kill Chandradeep Ram (deceased) as he had insulted Baijnath Paswan in the mid of the market. He further deposed that four days before there was altercation between Charandeep Ram (his younger brother) and Baijnath Paswan over the dues. At paragraph 2 and 3, it has been stated that the informant tried to convince why Dewan Paswan is talking about killing as it is only a matter of dues. But in the meantime, Raj Kumar Paswan and Dewan Paswan jumped to his younger brother. Raj Kumar Paswan caught hold of both the hands of his brother from behind and Baijnath Paswan took out a knife from his jacket and stabbed in the left side of abdomen of Chandradeep Ram. Thereafter, the informant and others chased these accused persons but they succeeded in fleeing away. It has been deposed that they brought the injured to the hospital but he succumbed to injury. Thereafter, the informant and others chased these accused persons but they succeeded in fleeing away. It has been deposed that they brought the injured to the hospital but he succumbed to injury. It has been deposed that in berandah of hospital he made fard beyan before the police basis upon which First Information Report was registered. Fard beyan has been proved by him, which has been marked as Exhibit 1. P.W. 1-Prabhu Dayal Ram (informant) was cross-examined and it is evident from the deposition made therein that he has corroborated the statement what has been made in the fard beyan and examination-in-chief, more particularly it is evident from deposition made at paragraph 20 wherein it has been deposed that he heard the shouting of his younger brother he did not went towards his shop but his younger brother was coming towards his shop holding his abdomen shouting he ‘killed me, killed me’ and fell down in unconscious in front of shop of Shankar Das. At paragraph 21, he has specially stated that Dewan Paswan in front of his shop was stating to Baijnath Paswan and Raj Kumar Paswan that Charandeep Ram in the mid of the market since has insulted Baijnath Paswan as such kill him. He has further deposed that during that period except them Talu Besra (P.W. 6) was present. At paragraph 23, it has been deposed that they chased the accused persons for about 200 feet but the accused succeeded in fleeing away. At paragraph 24, it has been deposed that on horse-cart (Tumtum) they rushed to hospital with his younger brother. For ready reference paragraph nos. 1, 2 and 3 of the examination-in-chief and paragraph nos. At paragraph 23, it has been deposed that they chased the accused persons for about 200 feet but the accused succeeded in fleeing away. At paragraph 24, it has been deposed that on horse-cart (Tumtum) they rushed to hospital with his younger brother. For ready reference paragraph nos. 1, 2 and 3 of the examination-in-chief and paragraph nos. 20, 21, 23 and 24 are reproduced as under: “Examination-in-chief 1- pUnznhi jke esjk NksVk HkkbZ FkkA fnukad 5-11-91 dks yxHkx 6%30 cts lk;adky dks eSa vius iku dh nqdku ij FkkA esjs nqdku ds cxy esa cStukFk ;kno rFkk 'kadj nkl dh nqdkus gSaA pUnznhi dh iku dh nqdku Hkh bu nks nqdkuksa ds ckn gSA ml fnu nhikoyh dk fnu FkkA esjk HkkbZ pUnznhi ?kj ls nhi tykdj 6%30 cts vk;kA ml le; eSa pUnznhi ds nqdku ij cSBk gqvk FkkA pUnznhi eq>s fcBkdj ?kj x;k FkkA og vkdj eq>ls dgk fd dc vki vius nqdku ij tkb, eSa vk x;k gw¡A 2- blds ckn eSa viuh nqdku ij pyk x;kA blds ckn nsou ikloku] jktdqekj ikloku rFkk cStukFk ikloku esjs nqdku if'pe ls vk;kA nsou ikloku us cStukFk ikloku ls dgk fd pUnznhi jke us chp cktkj esa rqEgkjh csbTtrh fd;k gS tku ls ekj nksA pUnznhi jke us cStukFk ikloku ls pkj fnu iwoZ cdk;k iSlk ekaxk Fkk ftl dkj.k muesa ckrkckrh gqbZ FkhA 3- nsou dks eSa le>kus yxk fd D;ksa tku ls ekjus dks dgrs gks] cdk;k Fkk ekaxk Fkk vc rks ckr [kRe gks x;hA blh chp cStukFk ikloku] jktdqekj ikloku dwndj esjs HkkbZ ds ikl pyk x;kA jktdqekj ikloku esjs HkkbZ pUnznhi dk gkFk idM+ dj gkFk ihNs dj fn;kA cStukFk ikloku vius tSdsV ls pkdw fudkydj pUnznhi ds cka;s rjQ isV esa ekj fn;kA blds ckn geyksxksa us bu rhuksa O;fDr;ksa dks nkSM+k;k ysfdu os Hkkx x;sA Cross-Examination: 20- viuh nqdku ij igqapus ds 5 feuV ds ckn eSa vius HkkbZ dk ph[k lqukA eSa nkSM+dj mlds nqdku dh vksj ugha x;k D;ksafd esjk HkkbZ gh isV idM+dj fpYykrs gq, ^ekj fn;k&ekj* fn;k esjs nqdku dh rjQ nkSM+k vk jgk Fkk ysfdu 'kadj nkl ds nqdku ds lkeus fxjdj csgks'k gks x;kA 21- ftl le; esjk HkkbZ fpYykrs gq, vk jgk Fkk mlds igys nsou ikloku esjs ikl gh Fks vkSj ogh ls [kM+k gksdj cStukFk ikloku rFkk jktdqekj ikloku dks dg jgk Fkk fd chp cktkj esa csbTtr fd;k gS ekjks lkys dksA ml le; esjs rFkk nsou ds vfrfjDr rkyq csljk ogka ij FkkA 23- geyksx vfHk;qDrx.k dks yxHkx nks lkS QhV rd ihNk fd;k ysfdu os lc Hkkx x,A blds ckn okil vkdj VeVe ij fcBk;kA 24- tgka esjk HkkbZ fxjk Fkk ogka tehu ij [kwu fxjk gqvk FkkA HkkbZ dks VeVe ij ysdj vLirky ys x;s tks ogka ls yxHkx vk/kk fdyksehVj gksxkA 19. Talu Besara (P.W. 6), who is said to be independent eye witness has deposed in examination-in-chief at paragraph 2 that Chandradeep Ram returned from home at 6.30 p.m. then Prabhu Dayal Ram (informant) went to his shop. Thereafter, Dewan Paswan, Baijnath Paswan and Raj Kumar Paswan came from south. Dewan Paswan abusing Chandradeep Ram was stating that why Chandradeep has asked for money from my son in the way, it is his insult. When Dewan started to abusing, Prabhu Ram called him to his shop. At paragraph 3, it has been deposed that thereafter Baijnath and Raj Kumar started to quarrel with Chandradeep Ram at his shop and Dewan Paswan while abusing stated to kill Chandradeep Ram. It has further been deposed that thereafter Raj Kumar Paswan caught hold of both the hands of Chandradeep Ram from behind and Baijnath Paswan stabbed the knife to Chandradeep. Thereafter, Chandradeep rushed to the shop of his elder brother shouting Baiju has stabbed him and fell in front of shop of Shankar. The accused persons thereafter fled away and could not be caught even after they were chased. In cross-examination, at paragraph 18 it has been stated that during altercation, Prabhu Dayal called Dewan Paswan and asked him why they are quarrelling. Thereafter, Dewan coming towards his shop and while abusing Chandradeep has asked to kill. At paragraph 19, he has further stated that Baijnath has stabbed in the stomach of Chandradeep. For ready reference paragraph nos. 2 and 3 of the examination-in-chief and paragraph nos. Thereafter, Dewan coming towards his shop and while abusing Chandradeep has asked to kill. At paragraph 19, he has further stated that Baijnath has stabbed in the stomach of Chandradeep. For ready reference paragraph nos. 2 and 3 of the examination-in-chief and paragraph nos. 18 and 19 are reproduced as under: “Examination-in-chief 2- pUnznhi 6%30 cts ?kj ls ykSVdj vk;k rc izHkqjke viuh nqdku ij pyk vk;kA blds ckn nsou ikloku] cStukFk ikloku] jktdqekj ikloku nf{k.k dh rjQ ls vk,A nsou ikloku pUnznhi dks xkyh nsrs gq, vk jgk Fkk fd pUnznhi us esjs csVs ls jkLrs esa iSlk D;ksa ekaxk ;g csbTtrh dh ckr gSA vkSj nsou xkyh xykSt djus yxk rks izHkqjke mls vius nqdku ds ikl cqyk fy;kA 4- blds ckn cStukFk rFkk jktdqekj pUnznhi jke ls mldh nqdku ij >xM+k djus yxk rc nsou ikloku us eka dh xkyh nsrs gq, dgk fd D;k ns[krs gks ekj nksA rc jktdqekj ikloku pUnznhi jke dk nksuksa gkFk eksM+dj ihB ds ihNs dj fn;k vkSj cStukFk dks pkdw ekj fn;k rc pUnznhi nkSM+dj izHkqjke dh vksj vk;k vkSj dgk fd cStw us pkdw ekj fn;k blds ckn pUnznhi 'kadj dh xqeVh ds lkeus fxj x;kA blds ckn nsou ikloku] cStukFk ikloku] jktdqekj ikloku mRrj rjQ Hkkx x;s] geyksxksa us ihNk fd;k ysfdu os yksx cEcbZ LVksj ds cxy esa fLFkr xyh esa ?kql x;s rc geyksx okil vk x;s vkSj pUnznhi dks Vkaxk ij vLirky ys x;sA vLirky esa mldh e`R;q gks x;hA cross-examination 18- nksuksa i{kksa ds chp >xM+k gksrs le; lM+d ls gksdj yksx vk tk jgs Fks ysfdu dksbZ [kM+k gksdj >xM+k ugha lqu jgk FkkA izHkqn;ky jke nsou ikloku dks cqykdj viuh nqdku ij yk;k vkSj mls le>kus yxk fd >xM+k D;ksa djrs gSa >xM+k er dhft,A ml le; nsou dkQh ih;s gq, FkkA nsou ikloku blds ckn esjh nqdku ds ikl tkus yxk vkSj eka dh xkyh nsrs gq, dgk fd ekj nksA 19- ml le; pUnznhi vkSj cStukFk vkeus lkeus [kM+s Fks vkSj cStukFk Nqjk fudkydj isV esa ekj fn;kA Nqjk cM+k Fkk eSa mldh yEckbZ ugha crk ldrkA iwjk Nqjk /kalus ds ckn cStukFk us Nqjk [khap fy;kA [kwu dk QkSOokjk ugha fudyk FkksM+k [kwu fudykA 20. Subodh Ram (P.W. 2), who happens to brother of the deceased and P.W. 1, has been considered to be hearsay witness. Subodh Ram (P.W. 2), who happens to brother of the deceased and P.W. 1, has been considered to be hearsay witness. It is evident from his deposition that he has also seen the deceased in the injured condition falling down on earth. Initially he was not cross-examined but on the application made on behalf of defence, he was cross-examined wherein at paragraphs 6, 7 and 8 he has stated that Chandradeep was fallen in front of shop of Shankar Das and the informant (Prabhu Dayal Ram-P.W. 1) was chasing the accused persons and after ten minutes on return, Prabhu Ram has told that Baiju has stabbed his brother and asked him to call for horse-cart (Tumtum) wherein they took the injured to hospital. 21. Paras Modi (P.W. 3), in his deposition, has stated that on hearing halla he went to the place of occurrence where he found Chandu Ram (deceased) falling in between the shop of Shankar Mandal and Parmanand Sah and blood was oozing from his body. Thereafter, Dilip Modi and Prabhu Ram went to hospital on Tumtum where Chandradeep was declared dead. At paragraph 3 he has specifically stated that 2-4 days before the occurrence, he had seen that altercation took place in between Chandradeep and Baijnath over dues amount. 22. Dr. Pradeep Kumar Sinha (P.W. 4), is the doctor, who conducted post mortem on the dead body, has deposed that he found following ante mortem injuries over the body- “One sharp penetrating wound 1½” X ½” with a portion of omentum (part of peritorium that suspended from the stomach from the both interior and posterior corviatium of the stomach) coming out through wound at the left side of upper part of abdomen in the left hypocendum.” He has further deposed that there was sharp cut would in the spleen in the lower border 1X ½ X ½ “ and splauve flaver of large intestine ½” X 1/2” with damage of surrounding vessels. Peritoneum were full of blood in the abdominally.” It has been opined that injury was caused by sharp cutting weapon. He was cross-examined from which it is evident that there is no discrepancy from what he has stated in examination-in-chief. 23. Peritoneum were full of blood in the abdominally.” It has been opined that injury was caused by sharp cutting weapon. He was cross-examined from which it is evident that there is no discrepancy from what he has stated in examination-in-chief. 23. P.W. 5- Dilip Modi in his deposition has stated that on hearing halla, he came out from his house and found Chandradeep Ram lying near his shop and on being asked, he was informed by the people that accused persons have stabbed Chandradeep Ram. He has further deposed that he alongwith Paras Modi, Prabhu Ram, Talu Besara, Rajendra Mandal went on Tumtum with injured Chandradeep to hospital where he was declared dead. In cross-examination he has not stated in contradiction to the statement made in examination-in-chief. 24. Rita Devi has been examined as P.W. 7, who happens to be the wife of the deceased. She has deposed that on hearing halla, she came out from her house and found that her brother-in-law (Jeth) and some other persons were carrying her husband to hospital. She has narrated about the occurrence and disclosed the reason of murder that her husband had demand his dues from the accused persons. 25. Kamleshwari Prasad Singh, who is the investigating officer, has been examined as P.W. 8, has corroborated the statement made by P.W 6 (informant). He has collected and prepared seizure-list which has been marked as Exhibit 4. 26. Nageshwar Bhagat, P.W.9 has endorsed the signature of witnesses over seizure-list as also on the inquest report. 27. After deposition of the prosecution witness accused persons have been put to examination under Section 313 Cr.P.C. It is evident from the questionnaire that accused persons have been apprised about evidence collected in course of investigation but all the questions have been answered in ‘negative’ and nothing has been said in defence regarding their false implication. 28. This Court after discussing the statement made by the prosecution witness and the statement of the accused persons recorded under Section 313 Cr.P.C has proceeded to examine the finding recorded by the trial Court in order to scrutinize its legality and propriety. It is evident from the finding recorded by the trial Court that mainly consideration was given with respect to the deposition made by P.W. 1 and P.W. 6. It is evident from the finding recorded by the trial Court that mainly consideration was given with respect to the deposition made by P.W. 1 and P.W. 6. This Court has found from the deposition of P.W. 1-Prabhu Dayal Ram (informant), elder brother of the deceased that he has supported the version which he had stated in fard beyan before the concerned police officer. He has stated that four days before the occurrence there was altercation between Charandeep Ram (his younger brother) and Baijnath Paswan over the dues amount and on the fateful day, accused Dewan Paswan instigated to kill Charandeep Ram whereupon Raj Kumar Paswan caught hold of both the hands of his brother from behind and Baijnath Paswan took out a knife from his jacket and stabbed in the left side of abdomen of Chandradep Ram. Likewise, P.W. 6 -Talu Besara), who is said to be independent eye witness has deposed in examination-in-chief the same version as has been stated by the informant. It has been deposed that Baijnath and Raj Kumar were quarreling with Chandradeep Ram at his shop and Dewan Paswan instigated to kill Chandradeep. It has been deposed that thereafter Raj Kumar Paswan caught hold of both the hands of Chandradeep Ram from behind and Baijnath Paswan stabbed the knife to Chandradeep. 29. The learned trial Court has considered the deposition of P.W. 1 and 6 who are said to be eye witnesses and have seen the occurrence as also movement of the accused persons after committing crime by giving knife blow to the deceased and even P.W. 1 along with other have tried to caught hold of accused persons but they did not succeed. P.W. 6 in specific term has stated about instigation by Dewan Paswan to kill Charandeep Ram in order to take revenge of humiliation of demanding dues by deceased four days before in open market; tiding of hand by Raj Kumar Paswan and stabbing by knife by Baijnath Paswan, which finally culminated into death of the deceased. It further appears form the judgment of learned trial Court that apart from the deposition of P.W. 1 and P.W. 6 thoughtful consideration has been made with respect to post mortem report and the deposition made by the doctor in examination-in-chief. The doctor, who has conducted post mortem, has opined the cause of death due to injury caused by sharp cutting weapon. The doctor, who has conducted post mortem, has opined the cause of death due to injury caused by sharp cutting weapon. The trial Court has also given consideration with respect to the deposition of P.W. 2 and 3 who have also corroborated the death by giving statement to the effect that the deceased was lying on earth and blood was oozing out from his stomach. The trial Court on the basis of deposition of P.W. 1 and 6, supported by medical evidence as given in post mortem report that death was caused due to shock and external hemorrhage due to sharp cut injury as deposed by the doctor who conducted the post mortem, as also the deposition of post occurrence witness, in particular P.W. 2, 3 and 5, who is said to be hearsay witness, has found the charges leveled against the appellants proved beyond all reasonable doubts. 30. The argument has been made on behalf of appellant nos. 1 and 2 by learned Amicus that there is discrepancy/inconsistency in the deposition of the witnesses and as such the entire prosecution is fit to be vitiated. There is no dispute about the settled position of law that if there is discrepancy of deposition prosecution is to be disbelieved and that disbelief will also go in faovur of the accused persons by giving them the benefit of doubt since in the criminal trial the charge is required to be proved beyond all reasonable doubt but it is also settled position of law that minor discrepancy or improvements which do not materially affect the case of prosecution and are insignificant cannot be made the basis for doubting the case of the prosecution. Reference in this regard be made to the judgment rendered in Faquira Vs. State of U.P. [ (1976) 1 SCC 662 ] in particular paragraph 4, which reads as under: “4. We have been taken through the relevant evidence against which some criticism, which is not sufficient to enable us to discard this evidence, was levelled. This Court does not interfere with findings or questions of fact on the strength of minor discrepancies which only indicate that the witnesses were not tutored. The fact that the apparent motive was too flimsy is no reply to the unshaken testimony of creditable and natural eyewitnesses who had no motive whatsoever to implicate the appellant falsely. This Court does not interfere with findings or questions of fact on the strength of minor discrepancies which only indicate that the witnesses were not tutored. The fact that the apparent motive was too flimsy is no reply to the unshaken testimony of creditable and natural eyewitnesses who had no motive whatsoever to implicate the appellant falsely. It was also sought to be shown that the appellant Faquira and Shiamlal had not been on good terms with each other and would not, ordinarily, join in an attack on Chhanga. This suggestion was made as Faquira was shown to have got Shiamlal arrested in some gambling case. We, however, do not think that this is a ground to disbelieve the prosecution case. People of the kind to which Faquira and Shiamlal seem to belong do not generally attach much importance to such matters. The evidence indicates that they were on quite good terms with each other at the time of the incident whatever may have been their past relations. They came together like friends, to have some potato chops.” The Hon’ble Apex Court in the judgment rendered in Bharwada Bhoginbhai Hirjibhai Vs. State of Gujarat [ (1983) 3 SCC 217 ], in particular at paragraph nos. 5 and 6, has held as under: “5. ...The finding of guilt recorded by the Sessions Court as affirmed by the High Court has been challenged mainly on the basis of minor discrepancies in the evidence. We do not consider it appropriate or permissible to enter upon a reappraisal or reappreciation of the evidence in the context of the minor discrepancies painstakingly highlighted by learned Counsel for the appellant. Overmuch importance cannot be attached to minor discrepancies. The reasons are obvious : “(1) By and large a witness cannot be expected to possess a photographic memory and to recall the details of an incident. It is not as if a video tape is replayed on the mental screen. (2) Ordinarily it so happens that a witness is overtaken by events. The witness could not have anticipated the occurrence which so often has an element of surprised. The mental faculties therefore cannot be expected to be attuned to absorb the details. (3) The powers of observation differ from person to person. What one may notice, another may not. (2) Ordinarily it so happens that a witness is overtaken by events. The witness could not have anticipated the occurrence which so often has an element of surprised. The mental faculties therefore cannot be expected to be attuned to absorb the details. (3) The powers of observation differ from person to person. What one may notice, another may not. An object or movement might emboss its image on one person's mind, whereas it might go unnoticed on the part of another. (4) By and large people cannot accurately recall a conversation and reproduce the very words used by them or heard by them. They can only recall the main purport of the conversation. It is unrealistic to expect a witness to be a human tape-recorder. (5) In regard to exact time of an incident, or the time duration of an occurrence, usually, people make their estimates by guess-work on the spur of the moment at the time of interrogation. And one cannot expect people to make very precise or reliable estimates in such matters. Again, it depends on the time-sense of individuals which varies from person to person. (6) Ordinarily a witness cannot be expected to recall accurately the sequence of events which takes place in rapid succession or in a short time span. A witness is liable to get confused, or mixed up when interrogated later on. (7) A witness, though wholly truthful, is liable to be overawed by the court atmosphere and the piercing cross-examination made by counsel and out of nervousness mix up facts, get confused regarding sequence of events, or fill up details from imagination on the spur of the moment. The sub-conscious mind of the witness sometimes so operates on account of the fear of looking foolish or being disbelieved though the witness is giving a truthful and honest account of the occurrence witnessed by him — Perhaps it is a sort of a psychological defence mechanism activated on the spur of the moment.” 6. Discrepancies which do not go to the root of the matter and shake the basic version of the witnesses therefore cannot be annexed with undue importance. More so when the all important “probabilities factor” echoes in favour of the version narrated by the witnesses. Further, the Hon’ble Apex Court in the judgment rendered in Kashiram Vs. Discrepancies which do not go to the root of the matter and shake the basic version of the witnesses therefore cannot be annexed with undue importance. More so when the all important “probabilities factor” echoes in favour of the version narrated by the witnesses. Further, the Hon’ble Apex Court in the judgment rendered in Kashiram Vs. State of M.P. [ (1998) 7 SCC 450 ] in particular at paragraph 6 has held as under: “6. We heard counsel on both sides at length. We have perused the entire evidence on record. There are five eyewitnesses, namely, PW 2, PW 12, PW 13, PW 14 and PW 15. All of them except PW 2 received gunshot injuries. Their evidence is consistent and excepting minor discrepancies which are natural due to frailty of human memory, nothing has been pointed out for discrediting their evidence. All the five witnesses have categorically spoken to the presence of the appellant on the spot and his firing the gun after taking it from Ram Singh. The argument that no doctor has been examined to prove the injuries of the witnesses is without any substance. Nothing has been elicited in the cross-examination to enable the Court to discard their version of having suffered injuries. On the other hand, suggestions have been made in the cross-examination as if there was a fight between the two groups at the spot. The Hon’ble Apex Court in the judgment rendered in Parbata Vs. State of Rajasthan [ (2005) 13 SCC 398 ] has held at paragraph 9 as under: “9. The trial court has really not recorded any convincing reason for not accepting the testimony of PW 2 and PW 8. We have carefully perused their evidence. Their evidence appears to be natural having a ring of truth. Much was sought to be made of minor discrepancies in the evidence of the two eyewitnesses, which have been described as glaring contradictions. Some variation in matters of detail is but natural, and much depends on the capacity of a witness to observe and remember events, particularly in matters of minor details. Moreover, the two witnesses came from two different directions, and they may have observed the incident at different stages, though in quick succession. However, such minor discrepancies do not warrant rejection of their evidence. Moreover, the two witnesses came from two different directions, and they may have observed the incident at different stages, though in quick succession. However, such minor discrepancies do not warrant rejection of their evidence. Their deposition is natural and consistent with the case of the prosecution and we find no reason why they should be disbelieved.” The Hon’ble Apex Court in the judgment rendered in Mukesh Kumar vs. State of Delhi [(2015) 17 SCC 694] at paragraph 8 has held as under: “8. While the slight difference in the initial version of the prosecution and the FIR version has been reasonably explained by the cross-examination of PW 6, it is our considered view that minor discrepancies, embellishments and contradictions in the evidence of the eyewitnesses do not destroy the essential fabric of the prosecution case, the core of which remains unaffected. Even if we have to assume that there are certain unnatural features in the evidence of the eyewitnesses the same can be reasonably explained on an accepted proposition of law that different persons would react to the same situation in different manner and there can be no uniform or accepted code of conduct to judge the correctness of the conduct of the prosecution witnesses i.e. PWs 1 and 2. The relation between PWs 5 and 6 and PWs 1 and 2 and the deceased, in our considered view, by itself, would not discredit the testimony of the said witnesses. There is nothing in the evidence of PWs 1 and 2 which makes their version unworthy of acceptance and their testimony remains unshaken in the elaborate cross-examination undertaken.” Recently, the Hon’ble Apex Court, in the judgment rendered in the case of Karan Singh vs. State of U.P. [ (2022) 6 SCC 52 ], in particular at paragraph nos. 40, 43 and 44 has held has under: “40. In Kuriya v. State of Rajasthan [Kuriya v. State of Rajasthan, (2012) 10 SCC 433 : (2013) 1 SCC (Cri) 202], this Court held : (SCC pp. 447-48, paras 30-32) “30. This Court has repeatedly taken the view that the discrepancies or improvements which do not materially affect the case of the prosecution and are insignificant cannot be made the basis for doubting the case of the prosecution. The courts may not concentrate too much on such discrepancies or improvements. 447-48, paras 30-32) “30. This Court has repeatedly taken the view that the discrepancies or improvements which do not materially affect the case of the prosecution and are insignificant cannot be made the basis for doubting the case of the prosecution. The courts may not concentrate too much on such discrepancies or improvements. The purpose is to primarily and clearly sift the chaff from the grain and find out the truth from the testimony of the witnesses. Where it does not affect the core of the prosecution case, such discrepancy should not be attached undue significance. The normal course of human conduct would be that while narrating a particular incident, there may occur minor discrepancies. Such discrepancies may even in law render credential to the depositions. The improvements or variations must essentially relate to the material particulars of the prosecution case. The alleged improvements and variations must be shown with respect to material particulars of the case and the occurrence. Every such improvement, not directly related to the occurrence, is not a ground to doubt the testimony of a witness. The credibility of a definite circumstance of the prosecution case cannot be weakened with reference to such minor or insignificant improvements. Reference in this regard can be made to the judgments of this Court in Kathi Bharat Vajsur v. State of Gujarat [Kathi Bharat Vajsur v. State of Gujarat, (2012) 5 SCC 724 : (2012) 2 SCC (Cri) 740], Narayan Chetanram Chaudhary v. State of Maharashtra [Narayan Chetanram Chaudhary v. State of Maharashtra, (2000) 8 SCC 457 : 2000 SCC (Cri) 1546], Gura Singh v. State of Rajasthan [Gura Singh v. State of Rajasthan, (2001) 2 SCC 205 : 2001 SCC (Cri) 323] and Sukhchain Singh v. State of Haryana [Sukhchain Singh v. State of Haryana, (2002) 5 SCC 100 : 2002 SCC (Cri) 961]. 31. What is to be seen next is whether the version presented in the Court was substantially similar to what was said during the investigation. It is only when exaggeration fundamentally changes the nature of the case, the Court has to consider whether the witness was stating the truth or not. [Ref. Sunil Kumar v. State (NCT of Delhi), (2003) 11 SCC 367 : 2004 SCC (Cri) 1055]. 32. These are variations which would not amount to any serious consequences. The Court has to accept the normal conduct of a person. [Ref. Sunil Kumar v. State (NCT of Delhi), (2003) 11 SCC 367 : 2004 SCC (Cri) 1055]. 32. These are variations which would not amount to any serious consequences. The Court has to accept the normal conduct of a person. The witness who is watching the murder of a person being brutally beaten by 15 persons can hardly be expected to state a minute by minute description of the event. Everybody, and more particularly a person who is known to or is related to the deceased, would give all his attention to take steps to prevent the assault on the victim and then to make every effort to provide him with the medical aid and inform the police. The statements which are recorded immediately upon the incident would have to be given a little leeway with regard to the statements being made and recorded with utmost exactitude. It is a settled principle of law that every improvement or variation cannot be treated as an attempt to falsely implicate the accused by the witness. The approach of the court has to be reasonable and practicable. Reference in this regard can be made to Ashok Kumar v. State of Haryana, (2010) 12 SCC 350 : (2011) 1 SCC (Cri) 266] and Shivlal v. State of Chhattisgarh, (2011) 9 SCC 561 : (2011) 3 SCC (Cri) 777] .” 43. As argued by Mr Tyagi, appearing for the State both PW 2 and PW 3 had clearly mentioned that the appellant and PW 4 Mahender Singh were both present at the place of occurrence. The appellant's presence has been proved by two eyewitnesses. It has been proved by the eyewitnesses, that the appellant carried a rifle. But PW 2 and PW 3 deposed that all the accused had opened fire. The prosecution was required to prove its case beyond reasonable doubt, which it has done, and not beyond all iota of doubt. The fact that one of the injured witnesses may not have mentioned the name of appellant Karan Singh does not demolish the evidence of the other witnesses. 44. We find no grounds to interfere with the concurrent findings of the trial court and the High Court [Raj Kumar Singh v. State of U.P., 2018 SCC OnLine All 6110]. The fact that one of the injured witnesses may not have mentioned the name of appellant Karan Singh does not demolish the evidence of the other witnesses. 44. We find no grounds to interfere with the concurrent findings of the trial court and the High Court [Raj Kumar Singh v. State of U.P., 2018 SCC OnLine All 6110]. The fact that the trial/appeal should have taken years and that other accused should have died during the appeal cannot be a ground for acquittal of the appellant. The appeal is thus dismissed.” 31. In the instant case, we after going through the deposition of P.W. 1 and 6, who have seen the occurrence, have found that they have consistently deposed that Dewan Paswan instigated to kill Charandeep Ram in order to take revenge of humiliation for demanding dues four days before in open market and having tied the hands by Raj Kumar Paswan and stabbing by knife by Baijnath Paswan. From perusal of cross-examination of witnesses, it appears that the defence has failed to shake the deposition which has been deposed in examination-in-chief by these witnesses. The version of witnesses has been corroborated by the doctor who opined that death was caused due to shock and external hemorrhage due to sharp cut injury. In such circumstances, even if there is some minor discrepancy about the occurrence, the prosecution story cannot be disbelieved. Other witness as Paras Modi upon which reliance has been given by learned Amicus to consider it as major discrepancy but we on consideration has found that nothing has been deposed by this prosecution witness so as to consider contradiction in the deposition rather according to our considered view if the evidence of Paras Modi will be considered along with the deposition of P.W. 1 and P.W. 6 as also P.W. 1 and P.W.2, it is evident that the version of eye-witnesses have been fully corroborated by the other witnesses including Paras Modi. 32. This Court further to refer herein that the death was caused due to injury caused by knife blow by Baijnath Paswan (appellant no. 1) but the complicity of Raj Kumar Paswan cannot be ignored since he caught hold of both the arms of deceased-Chandradeep Ram from behind and it is Dewan Paswan who instigated to kill Chandradeep Ram, therefore, charge was framed under Section 302 read with Section 34 of the Indian Penal Code. 1) but the complicity of Raj Kumar Paswan cannot be ignored since he caught hold of both the arms of deceased-Chandradeep Ram from behind and it is Dewan Paswan who instigated to kill Chandradeep Ram, therefore, charge was framed under Section 302 read with Section 34 of the Indian Penal Code. In course of investigation material has come regarding common intention as such the culpability of all the accused persons will be same and similar and the penalty which has been imposed for commission of offence is equally to be inflicted upon all the accused persons. 33. It further requires to refer herein that although the same issue has been raised on behalf of appellants regarding non-seizure of the knife. Admittedly the knife has not been seized but the question arises merely because knife, the weapon used in murder, has not been seized/recovered, the deposition of eye witnesses, namely, P.W. 1-Prabhu Dayal Ram and P.W. 6-Talu Besara and other hearsay witness, version of which has been supported by medical evidence, can be ignored? In this regard, the Hon’ble Apex Court in the judgment rendered in Mritunjoy Biswas Vs. Pranab [ (2013) 12 SCC 796 ], taking reference of judgment rendered in Lakshmi v. State of U.P. [ (2002) 7 SCC 198 ; Lakhan Sao v. State of Bihar [ (2000) 9 SCC 82 and State of Rajasthan v. Arjun Singh [ (2011) 9 SCC 115 has been pleased to hold that when there is ample unimpeachable ocular evidence and the same has been corroborated by the medical evidence, non-recovery of the weapon does not affect the prosecution case. For ready reference, relevant paragraph of the judgment as under paragraph nos. 33 to 37 are quoted as under: “33. The learned counsel for the respondent has urged before us that there has been no recovery of weapon from the accused and hence, the prosecution case deserves to be thrown overboard and, therefore, the judgment of acquittal does not warrant interference. 34. In Lakshmi v. State of U.P. [ (2002) 7 SCC 198 : 2002 SCC (Cri) 1647, this Court has ruled that: (SCC p. 205, para 16) “16. 34. In Lakshmi v. State of U.P. [ (2002) 7 SCC 198 : 2002 SCC (Cri) 1647, this Court has ruled that: (SCC p. 205, para 16) “16. Undoubtedly, the identification of the body, cause of death and recovery of weapon with which the injury may have been inflicted on the deceased are some of the important factors to be established by the prosecution in an ordinary given case to bring home the charge of offence under Section 302 IPC. This, however, is not an inflexible rule. It cannot be held as a general and broad proposition of law that where these aspects are not established, it would be fatal to the case of the prosecution and in all cases and eventualities, it ought to result in the acquittal of those who may be charged with the offence of murder.” 35. In Lakhan Sao v. State of Bihar [ (2000) 9 SCC 82 : 2000 SCC (Cri) 1163] it has been opined that: (SCC p. 87, para 18) “18. The non-recovery of the pistol or spent cartridge does not detract from the case of the prosecution where the direct evidence is acceptable.” 36. In State of Rajasthan v. Arjun Singh [ (2011) 9 SCC 115 : (2011) 3 SCC (Cri) 647] this Court has expressed that: (SCC p. 122, para 18) “18. … mere non-recovery of pistol or cartridge does not detract the case of the prosecution where clinching and direct evidence is acceptable. Likewise, absence of evidence regarding recovery of used pellets, bloodstained clothes, etc. cannot be taken or construed as no such occurrence had taken place.” Thus, when there is ample unimpeachable ocular evidence and the same has been corroborated by the medical evidence, non-recovery of the weapon does not affect the prosecution case. 37. In view of the aforesaid analysis, the appeal is allowed, the judgment of acquittal passed by the High Court being wholly unsustainable is set aside and the judgment of conviction of the trial court is restored. The respondent is directed to surrender to custody to serve out the sentence.” Further, the Hon’ble Apex Court in the judgment rendered in Nankaunoo Vs. State of U.P. [ (2016) 3 SCC 317 , at paragraph 9 held as under: 9. The respondent is directed to surrender to custody to serve out the sentence.” Further, the Hon’ble Apex Court in the judgment rendered in Nankaunoo Vs. State of U.P. [ (2016) 3 SCC 317 , at paragraph 9 held as under: 9. The learned counsel for the appellant contended that the courts below failed to take note of the fact that the alleged weapon “country-made pistol” was never recovered by the investigating officer and in the absence of any clear connection between the weapon used for crime and ballistic report and resultant injury, the prosecution cannot be said to have established the guilt of the appellant. In the light of unimpeachable oral evidence which is amply corroborated by the medical evidence, non-recovery of “country-made pistol” does not materially affect the case of the prosecution. In a case of this nature, any omission on the part of the investigating officer cannot go against the prosecution case. Story of the prosecution is to be examined dehors such omission by the investigating agency. Otherwise, it would shake the confidence of the people not merely in the law enforcing agency but also in the administration of justice. Recently, the Hon’ble Apex Court in the judgment rendered in Rakesh Vs. State of U.P. [ (2021) 7 SCC 188 ] at paragraph 12 held as under: 12. Now so far as the submission on behalf of the accused that as per the ballistic report the bullet found does not match with the firearm/gun recovered and therefore the use of gun as alleged is doubtful and therefore benefit of doubt must be given to the accused is concerned, the aforesaid cannot be accepted. At the most, it can be said that the gun recovered by the police from the accused may not have been used for killing and therefore the recovery of the actual weapon used for killing can be ignored and it is to be treated as if there is no recovery at all. For convicting an accused recovery of the weapon used in commission of offence is not a sine qua non. PW 1 and PW 2, as observed hereinabove, are reliable and trustworthy eyewitnesses to the incident and they have specifically stated that A-1 Rakesh fired from the gun and the deceased sustained injury. For convicting an accused recovery of the weapon used in commission of offence is not a sine qua non. PW 1 and PW 2, as observed hereinabove, are reliable and trustworthy eyewitnesses to the incident and they have specifically stated that A-1 Rakesh fired from the gun and the deceased sustained injury. The injury by the gun has been established and proved from the medical evidence and the deposition of Dr Santosh Kumar, PW 5. Injury 1 is by gunshot. Therefore, it is not possible to reject the credible ocular evidence of PW 1 and PW 2 — eyewitnesses who witnessed the shooting. It has no bearing on credibility of deposition of PW 1 and PW 2 that A-1 shot deceased with a gun, particularly as it is corroborated by bullet in the body and also stands corroborated by the testimony of PW 2 and PW 5. Therefore, merely because the ballistic report shows that the bullet recovered does not match with the gun recovered, it is not possible to reject the credible and reliable deposition of PW 1 and PW 2.” From the judgments referred hereinabove, it is established that if the prosecution has been able to prove the charge beyond all reasonable doubt, so far as it relates to offence committed under Section 302 of IPC, on the basis of statement of the eye witnesses non-recovery of the incriminating weapon will not vitiate the prosecution. 34. The appellants have also been convicted under Section 34 of the Indian Penal Code along with the offence committed under Section 302 of the Indian Penal Code. 35. It is the settled position of law that Section 34 of I.P.C. is a rule of evidence and does not create substantive offence. The intention can be inferred from the circumstances appearing from the proved facts of the case as also the meeting of minds of all accused persons to commit offence should be established. It is not necessary to prove or to show the overt act on the part of every accused. The Hon’ble Apex Court in the case of State of U.P. Vs. Atul Singh etc., reported in AIR 2009 (SC) 2173 and in the case of Bengai Mandal @ Begai Mandal Vs. It is not necessary to prove or to show the overt act on the part of every accused. The Hon’ble Apex Court in the case of State of U.P. Vs. Atul Singh etc., reported in AIR 2009 (SC) 2173 and in the case of Bengai Mandal @ Begai Mandal Vs. State of Bihar, reported in AIR 2010 (SC) 686 has held that common intention in most of the cases is to be inferred from the act and conduct of the accused and other relevant circumstances. In the case of Thoti Manohar Vs. State of Andhra Pradesh, reported in 2012 (78) A.C.C. 511 SC, the Hon’ble Apex Court has held that the previous meetings of minds with pre-arranged plan or prior concert is difficult to establish by way of direct evidence. It has to be inferred from the conduct of the accused and the circumstances. 36. Here in the instant case, the trial Court after taking into consideration the overt act committed on behalf of the appellants in committing murder of the deceased, therefore, according to our considered view, is correct in coming to conclusion by convicting the appellants also under Section 34 of the Indian Penal Code along with the offence committed under Section 302 of the Indian Penal Code on the basis of evidence gathered in course of trial by the testimony of the witnesses having been corroborated in the postmortem report and the deposition of the Investigating officer as referred hereinabove. 37. This Court, on the basis of the entirety of the facts and circumstances and discussions made hereinabove by taking into consideration the deposition of the witnesses, is of the view that the judgment impugned requires no interference. 38. This Court, after having passed the order as aforesaid has considered the sentence and found therefrom that the order of sentence to undergo rigorous imprisonment for the offence committed under Section 302 read with Section 34 of the Indian Penal Code suffers from infirmity, reason being that Section 302 provides that along with the sentence of rigorous imprisonment, the fine is also mandatory to be inflicted as would appear from Section 302 of the Indian Penal Code, which reads as under:- “302. Punishment for murder.-Whoever commits murder shall be punished with death, or [imprisonment for life], and shall also be liable to fine.” 39. Punishment for murder.-Whoever commits murder shall be punished with death, or [imprisonment for life], and shall also be liable to fine.” 39. The trial Court while imposing the sentence has not considered the mandatory provision as contained under Section 302 of the Indian Penal Code and passed the order of sentence without inflicting any fine, therefore, the order of sentence is modified to the extent that apart from the sentence to undergo rigorous imprisonment for life, a fine of Rs.25,000/- (Rupees Twenty Five Thousand) to each of the appellants, is hereby imposed. 40. With the aforesaid modification in the order of sentence, the instant appeal stand dismissed. 41. Consequent upon dismissal of the appeal preferred by the appellants, since appellant nos.1 and 2, who are enjoying suspension of sentence after the order being passed by this Court directed to release them during pendency of the appeal, their bail bonds are cancelled and they are directed to surrender before the learned trial Court who would send them jail to serve out their remaining sentence. 42. Needless to say that if the appellants will not surrender, the trial Court will take endeavours for securing custody to serve out their remaining sentence and further secure that they deposit the amount of fine so imposed by this Court. 43. Let the Lower Court Records be sent back to the Court concerned forthwith, along with the copy of this Judgment. 44. Before parting with this order, it requires to refer herein that the Co-ordinate Bench of this Court vide order dated 11.03.2019 reserving the right of the appellants to engage a counsel of their choice, appointed Mrs. Alpana Verma, the learned counsel as Amicus to argue this criminal appeal on behalf of the appellant nos.1 and 2 and it was further ordered that a copy of the order be forwarded to the Secretary, Jharkhand High Court Legal Services Committee, for information and fee for the Amicus was directed to be fixed after disposal of this criminal appeal. 45. In view thereof, the Secretary, Jharkhand High Court Legal Services Committee is directed to ensure payment of admissible fee in favour of learned Amicus. 46. This Court expresses its gratitude to Mrs. Alpana Verma in tendering his assistance.