JUDGMENT : (Subhash Chand, J.) : Heard learned counsel for the appellants and learned counsel for the State. 1. The instant criminal appeal is preferred on behalf of the appellants against impugned Judgment of conviction and Order of sentence dated 20th September, 1993 passed by the 3rd Additional Sessions Judge, Dumka (S.P.) in Sessions Case No.295 of 1991, whereby, the appellants nos.1 and 2, namely, Pritam Baitha and Jugal Baitha @ Gopal Baitha had been convicted under Sections 302/34 of the Indian Penal Code and the appellant no.3, namely, Situ Baitha had been convicted for the offences under Sections 302 of the Indian Penal Code and the appellants had been sentenced to undergo rigorous life imprisonment; while two of the co-accused had been acquitted of the charge framed against them. 2. The brief facts giving rise to this criminal appeal are that the informant-Jairam Baitha (the brother of the deceased-Pairu Baitha) made his fard beyan to the police on 03.11.1990 stating therein that on 02.11.1990 at 11:00 a.m. his brother Pairu Baitha was removing clay from the wall in the lane. The accused Pritam Baitha, Jugal Baitha, Situ Baitha, Bhagan Baitha and Sabitri Devi all with intent to kill the said brother of the informant came there and opposed the removal of the clay. They also abused to the brother of the informant. Accused-Bhagan Baitha and Sabitri Devi caught the brother of the informant-Pairu Baitha; while accused-Pritam Baitha and Judgal Baitha assaulted his brother with lathi and the accused- Situ Baitha assaulted with farsa to the brother of the informant on his head; consequently the brother of the informant fell down on the ground in unconscious condition. The informant and other witnesses, namely, Andu Tatwa, Madhu Tatwa, Dinesh Baitha also attracted there and all the accused persons managed to flee away. It is further stated that his brother was brought to Dumka hospital in unconscious condition for treatment and on the basis of fard beyan, Saraiyahat (Hansdiha) P.S. Case No.128 of 1990 was instituted under Sections 147, 323, 324, 341 and 307 of the Indian Penal Code on 05.11.1990. It is further stated that his brother was brought to Dumka hospital in unconscious condition for treatment and on the basis of fard beyan, Saraiyahat (Hansdiha) P.S. Case No.128 of 1990 was instituted under Sections 147, 323, 324, 341 and 307 of the Indian Penal Code on 05.11.1990. The Investigating Officer conducted the investigation and offence under Section 302 I.P.C. was also enhanced and charge-sheet was also filed to the court of Chief Judicial Magistrate, Dumka against the five accused persons for the offence under Section 302 read with 34 of I.P.C. who after having taken cognizance on the same committed the case to the court of Sessions, who subsequently transferred the same to 2nd Additional Sessions Judge, Dumka and thereafter further the same was also transferred to 3rd Additional Sessions Judge, Dumka. 3. After commitment of the case to the Court of Session, the trial court framed under Sections 302/34 of the Indian Penal Code against the accused-Pritam Baitha, Jugal @ Gopal Baitha, Bhagan Baitha, Sabitri Devi while against accused-Jairam Baitha charge was framed under Section 302 of the Indian Penal Code. The charge was read over and explained to the all accused, who denied the charge and claimed for trial. 4. On behalf of the prosecution in oral evidence examined P.W.1- Bhagwati Devi, P.W.2-Nunulal Tatwa, P.W.3-Dinesh Baitha, P.W.4- Jhakasi Mandalain, P.W.5-Andu Tatwa, P.W.6- Madhu Tatwa, P.W.7- Jairam Baitha (the informant), P.W.8- Dr. Indra Kant Mishra, P.W.9- Surendra Kumar Rajak and P.W.10- Surendra Prasad Singh. 5. On behalf of the prosecution in documentary evidence Ext.1 is autopsy report, Ext.2 is signature of Surendra Kumar Rajak on inquest report, Ext.2/1 is signature of Dilip Rajak on inquest report. Ext.3 is fard beyan, Ext.4 is endorsement on inquest report (Pristhankan) and Ext.5 is inquest report. 6. 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. 7. On behalf of the defense in oral evidence examined D.W.-1 Ashiw Kumar Das, D.W.-2 Dr. Dilip Kumar Mishra and D.W.-3 Wakil Chandra Das while in documentary evidence adduced injury report of Pritam Baitha as Ext. A, register pertaining to the entry of Pritam Baitha and Jugal Baitha made by the Dr. K.D. Dubey as Ext.B and B/1 respectively and prescriptions as Ext. C and C/1. 8. Dilip Kumar Mishra and D.W.-3 Wakil Chandra Das while in documentary evidence adduced injury report of Pritam Baitha as Ext. A, register pertaining to the entry of Pritam Baitha and Jugal Baitha made by the Dr. K.D. Dubey as Ext.B and B/1 respectively and prescriptions as Ext. C and C/1. 8. The learned trial court after hearing the learned counsel for the parties passed the judgment of conviction and order of sentence against the accused Pritam Baitha, Jugal @ Gopal Baitha and Situ Baitha for the charge under Sections 302/34 of the I.P.C. and sentenced with rigorous imprisonment for life; while the accused Bhagan Baitha and Sabitri Devi were acquitted for the charge framed against them. 9. The aforesaid convicts being aggrieved with the judgment of conviction and order of sentence dated 20th September, 1993 preferred this present criminal appeal on the ground that the judgment of conviction and order of sentence passed by the learned trial court is bad in law and on facts as well. The learned trial court had also failed to consider the injuries sustained by the appellants and held that the manner of occurrence as suggested by the prosecution did not match with the medial evidence as there is no incise wound among the ante mortem injuries of the deceased. The witnesses upon whom the trial court had relied were the interested witness. The learned trial court did not appreciate the grudge which the informant had against the appellants/convicts on issue of the land dispute. The learned trial court did not appreciate the evidence of the defense witnesses while passing the impugned judgment of conviction. The prosecution witness upon whom the learned trial court relied were examined by the Investigating Officer belated. The prosecution has not examined the Investigating Officer which goes against the prosecution. At the most the learned trial court should have convicted the appellants for the offence under Section 325 of the Indian Penal Code. Accordingly, prayed to allow the appeal and to set aside the impugned judgment of conviction and order of sentence passed against the appellants. 10. Heard learned senior counsel for the appellants and learned A.P.P. for the State of Jharkhand and perused the materials available on record. 11. Accordingly, prayed to allow the appeal and to set aside the impugned judgment of conviction and order of sentence passed against the appellants. 10. Heard learned senior counsel for the appellants and learned A.P.P. for the State of Jharkhand and perused the materials available on record. 11. On perusal of record, it appears that during pendency of this appeal, the appellant no.1, namely, Pritam Baitha died and no legal heirs of the deceased-Pritam Baitha stepped ahead to pursue this appeal. Hence, vide order dated 4th January, 2023, this appeal was abated against the said appellant. 12. On behalf of the prosecution to prove its case in oral evidence examined ten witnesses out of them P.W.-1 Bhagwati Devi and P.W.- 7 Jairam Baitha are the eye-witnesses of the occurrence. 13. P.W.-1 Bhagwati Devi in her examination-in-chief stated that on the date and time of occurrence her husband was removing clay from the wall and she was also present there. In the meantime, Pritam Baitha, Jugal Baitha, Sito Baitha, Bhagan Baitha and the wife of Pritam Baitha, namely, Sabitri Devi had come there. Pritam and Jugal were armed with Lathi; while Sito was armed with farsa. The rest of the accused were empty handed. All the accused persons began to hurl abuse to the husband of the informant which was opposed by him. At this Bhagan Baitha and Sabitri Devi both caught hold of her husband; while Jugal Baitha and Pritam Baitha both assaulted with lathi and Sito Baitha assaulted with farsa on the head of her husband. Thereafter her husband fell down in unconscious condition and on being alarmed by her, Dinesh, Nunulal, Andu, Madhu etc. attracted there and the accused persons fled away. She also stated that she identified all the accused persons. In cross-examination, this witness stated that the occurrence took place between 10 to 11 of day time and after hurling of abuse, the maarpeet was done in which her husband died. The persons of the village came there after her husband fell down on the ground. She further stated that Nunulal, Madhu, Dinesh, Andu and Jhakasi were told in regard to the occurrence by her. Her husband also sustained injuries on several parts of the body inflicted by lathi. The several blow of lathi were given and the blood also oozed. She only saw one assault given by the farsa, whereby the head of her husband ruptured. Her husband also sustained injuries on several parts of the body inflicted by lathi. The several blow of lathi were given and the blood also oozed. She only saw one assault given by the farsa, whereby the head of her husband ruptured. These persons also chased her to assault but she managed to flee away. The police had interrogated her while she was in Dumka Hospital and she told in regard to the occurrence to the police on Monday. 14. P.W.-7 Jairam Baitha in his examination-in-chief corroborated the contents of fard beyan (Ext.3) and also stated that first of all Situ Baitha assaulted with farsa on the head of his brother. When he fell down, Pritam Baitha and Jugal Baitha also assaulted with lathi, thereafter, hearing hue and cry Nunulal Tatwa, Dinesh Baitha, Madhu Tatwa and Andu Tatwa of the village attracted there. All these persons intervened and the accused persons managed to flee away. His brother Pairu became unconscious. He, wife of Pairu and Gotiya took injured Pairu to the house; from where they took him to Nonihat, where the doctor expressed his inability to treat him. So they took him to Sadar Hospital, Dumka by the bullock cart and on Saturday night he died. His statement was also recorded by Daroga ji in Dumka Hospital and he also put his thumb impression thereon. His re-statement was also recorded by Daroga ji and he also put his thumb impression on the application for inquest report. In cross-examination, this witness stated that the accused persons had given several lathi blows to his brother, who sustained several injuries on his body. He further stated that whether the accused persons had given blow with farsa from the reverse side he cannot say. He had not seen the injuries on the body of the accused persons. After the occurrence, Dinesh Baitha, Nunulal, Andu and Madhu reached at the place of occurrence and he told in regard to the occurrence to them. He took his brother to Nonihat and the doctor refused to treat him, thereafter, on the same day in the evening at 4 o’ clock they reached to Dumka Hospital wherein his brother was admitted and on Saturday night his brother died. The doctor had demanded police papers while admitting in Dumka Hospital, therefore, he went to Dumka Hospital to bring the police papers. The doctor had demanded police papers while admitting in Dumka Hospital, therefore, he went to Dumka Hospital to bring the police papers. The Daroga ji had handed over one paper on Friday to get his brother admitted in hospital and on Saturday his restatement was recorded by the Daroga ji. 15. P.W.-10 Surendra Prasad Singh has stated that he recorded the fard beyan of the informant Jairam Baitha in Dumka Hospital. The same read over to him and he put his thumb impression thereon which is marked as Ext.3. The endorsement was made by the officer-in-charge, Dumka P.S. Sri N. Singh which he identified and marked Ext.4. The inquest report was prepared by Abdul Aziz, S.I. Dumka which is in his writing and signature. He identifies the same as marked as Ext.5. This witness in crossexamination denies the suggestion that the fard beyan was prepared later on. 16. P.W.-2 Nunulal Tatwa in his examination-in-chief stated that he had seen Pritam, Jugal, Situ Baitha inflicting with lathi to Pairu. Except Jugal, Pritam and Situ no other accused was there. He had seen the three accused. In cross-examination, this witness has stated that there were several injuries on the body of Pairu. At the place of occurrence Dinesh, Madhu, Andu and Nunulal came later on. 17. P.W.-3 Dinesh Baitha in his examination-in-chief stated that he reached at the place of occurrence and Madhu, Andu and Nunulal were there and Pairu had fallen on the ground. Pritam was also injured to whom Pairu had inflicted injuries. He also saw Gopal in injured condition. There were injury on the head and tample of Pairu and his whole body was brutally injured. 18. P.W.-4 Jhakasi Mandalain had stated that she had seen the three accused Pritam, Jugal and Situ assaulting to Pairu. Situ was armed with farsa. The place of occurrence was visible from her house from where she had been watching the occurrence. 19. P.W.-3 Andu Tatwa in his statement stated that when he reached at the place of occurrence, Pairu Baitha had fallen on the ground. Pritam, Jugal and Situ were fleeing away from the place of occurrence. 20. P.W.-6 Madhu Tatwa in his statement stated that he had seen the occurrence from Khalihaan which was visible from there. He saw Pritam, Jugal and Situ assaulting with lathi to Pairu Baitha, who had fallen on the ground due to sustaining injuries. Pritam, Jugal and Situ were fleeing away from the place of occurrence. 20. P.W.-6 Madhu Tatwa in his statement stated that he had seen the occurrence from Khalihaan which was visible from there. He saw Pritam, Jugal and Situ assaulting with lathi to Pairu Baitha, who had fallen on the ground due to sustaining injuries. He was also rushed to Dumka hospital. 21. P.W.-8 Dr. Indra Kant Mishra has proved the autopsy report of the deceased Pairu Baitha and following ante mortem injuries were shown : (i). Lacerated wound 2”x1/2”x bone deep over right parital region of the scalp. On dissection there was fracture of right side of frontal and right parital bones. On further dissection the membrances and brain matter found lacerated and blood clot present in the cranium. (ii). Abrasion 2”x1”and 1”x1/2” over left leg below knee joint. (iii). Abrasion 2”x1” over right knee joint. (iv). Abrasion 2”x1/2”over anterior aspect of elbow of left arm. (v). Abrasion 2”x1” over anterior aspect of right upper arm. This witness also opined that cause of death was shock and haemorrhage as a result of injury no.(i) which was sufficient enough to cause death in the ordinary course of business. The weapon used was hard and blunt substance and this autopsy report was prepared by him and is under his signature which was marked as Ext.1. 22. Learned senior counsel for the appellants has contended that the fard beyan (Ext.3) is dated 3rd November, 1990; while in inquest report and autopsy report the date of fard beyan is shown 2nd November, 1990. As such the fard beyan of 02.11.1990 which is not on record has been suppressed. Though this plea has not been raised in ground of appeal on behalf of the appellants, yet so far as this contention of learned counsel for the appellants is concerned the same does not affect the prosecution case because the fard beyan of the informant-Jairam Baitha was recorded on 3rd November, 1990. In the fard beyan itself, the date of occurrence is shown 2nd November, 1990 at 11 o’ clock of day time and this fard beyan was recorded on 3rd November, 1990 which has been proved by the informant-P.W.-7 Jairam Baitha and also by P.W.9 Surendra Prasad Singh, who recorded the fard beyan of Jairam Baitha and informant had put his thumb impression thereon. The same was also endorsed by the Officer-in-Charge of Dumka (Nagar) Police Station which has been marked as Ext.3 and 4. On behalf of the defense counsel before the trial court during cross-examination of P.W.-7 Jairam Baitha, the informant and the scribe of the fard beyan. P.W.-9 Surendra Prasad Singh were not put even a suggestion that there was fard beyan of 2nd November, 1990 which might have been suppressed. Even no cross-examination was made from these two witnesses in regard to the fard beyan being of 2nd November, 1990 in place of 3rd November, 1990. As such merely mentioning the date of fard beyan 3rd November, 1990 in the inquest report and autopsy report by the I.O. does not adversely affect the prosecution case. More so, the fard beyan dated 3rd November, 1990 has been duly exhibited by the prosecution witness. 23. The learned senior counsel for the appellants also contended that the F.I.R. of this case was lodged belated. The occurrence is of 2nd November, 1990 and the F.I.R. was lodged on 5th November, 1990 and there is no cogent explanation on behalf of the prosecution in regard to inordinate delay in lodging the F.I.R. It is further contended that this F.I.R. was also sent to the Magistrate concerned on 7th November, 1990, as such, the checks which are being imposed under Section 157 Cr.P.C. have been violated by the prosecution which makes the prosecution’s case tainted. From the very perusal of the F.I.R., it is evident that the date of occurrence is 2nd November, 1990 of 11 o’clock of day time and the fard beyan was recorded on 3rd November, 1990. Distance of police station from the place of occurrence is ten kilometers away and this F.I.R. was lodged on 5th November, 1990. Learned senior counsel for the appellants, in support of his contentions, relied on Meharaj Singh (L/Nk.) vs. State of U.P. reported in (1994) 5 Supreme Court Cases 188. 24. Per contra, Learned A.P.P. has contended that the fard beyan of the informant-Jairam Baitha was recorded on the very next day of occurrence i.e., 3rd November, 1990. Reason being the deceased brother of the informant Pairu Baitha was grievously injured; firstly he was rushed to Nonihat where the doctor expressed his inability to give treatment. Thereafter on the very day he was taken to Sadar Hospital, Dumka by the bullock cart. Reason being the deceased brother of the informant Pairu Baitha was grievously injured; firstly he was rushed to Nonihat where the doctor expressed his inability to give treatment. Thereafter on the very day he was taken to Sadar Hospital, Dumka by the bullock cart. The injured was also admitted at Sadar Hospital Dumka and they also made demand of the police papers. The informant Jairam Baitha went to the police station and brought the police paper, thereafter, he was given treatment in Sadar Hospital, Dumka. On 3rd November, 1990 in the night injured Pairu Baitha died. This fact is well proved from the statement of P.W.1 Bhagwati Devi (the wife of the deceased), P.W.7- Jairam Baitha (the informant) and also from the statement of P.W.10 Surendra Prasad Singh, who recorded the fard beyan of the informant on 3rd November, 1990. As such, the delay in lodging the F.I.R. was only on the part of the police, not on the part of the informant. Further this F.I.R. was registered as Saraiyahat P.S. Case No.128 of 1990 on 5th November, 1990 and the inquest report was prepared on 4th November, 1990. The postmortem was also conducted on 4th November, 1990. Certainly, this F.I.R. was seen by the Magistrate concerned on 7th November, 1990. 25. Certainly, there are latches on the part of the police in not lodging the F.I.R. on the very day when the fard beyan was recorded on 3rd November, 1990 and the F.I.R. was lodged on 5th November, 1990 and the same was sent to the magistrate concerned on 7th November, 1990. The delay in sending the F.I.R. to the Magistrate concerned not always fatal for the prosecution case. However, the delay is significant when the genesis of the prosecution case is doubtful. The Hon’ble Apex Court in the case of Jafel Biswas vs. State of West Bengal reported in AIR 2019 Supreme Court 519 has held that the delay in sending the F.I.R. to the Magistrate concerned not always fatal to the prosecution case. However it becomes significant when the genesis of the prosecution case is doubtful. Moreover, in the present case, the fard beyan of the informant was recorded on 3rd November, 1990 on the very next day of occurrence. However it becomes significant when the genesis of the prosecution case is doubtful. Moreover, in the present case, the fard beyan of the informant was recorded on 3rd November, 1990 on the very next day of occurrence. As such the delay in lodging the F.I.R. and sending the same to the Magistrate concerned belated on the part of police cannot be fatal to the prosecution case if the same is proved from the cogent and trustworthy evidence. 26. The learned senior counsel for the appellants also contended that on behalf of the prosecution case, the eye-witness of the occurrence, who have been produced before the learned trial court are the interested witnesses and their testimony cannot be believed. So far as the eye-witness account is concerned they are at variance with the medical evidence produced on behalf of the prosecution. There is only one injury which was fatal to life while the remaining four injuries were simple abrasions; while all the prosecution witnesses have stated that the accused persons had given several blow to deceased Pairu Baitha by Lathi and farsa as well. 27. Per contra, learned A.P.P. contended that the prosecution case is based on direct evidence. P.W.1- Bhagwati Devi and P.W.-7 are the eye-witness of the occurrence. Though these witnesses are related witness, yet their presence at the place of occurrence is not doubted at all. Moreover on raising alarm by these two eye-witnesses the several persons of the locality also attracted there and they also saw the occurrence. They have been examined as P.W.2 Nunulal Tatwa, P.W.-3 Dinesh Baitha, P.W.4 Jhakasi Mandalain, P.W.5 Andu Tatwa, P.W.6- Madhu Tatwa and also corroborated the prosecution story. It is further contended that in regard to the same occurrence on behalf of the appellants-accused persons a F.I.R. was also lodged against the persons of the informant’s side which was registered as Saraiyahat P.S. Case No.127 of 1990. So far as the variation in testimony of the witnesses with the medical evidence is concerned, the same is not material; rather it corroborates the eye-witness account. 28. P.W.-1 Bhagwati Devi and P.W.-7 Jairam Baitha are the eye-witnesses of the occurrence. So far as the variation in testimony of the witnesses with the medical evidence is concerned, the same is not material; rather it corroborates the eye-witness account. 28. P.W.-1 Bhagwati Devi and P.W.-7 Jairam Baitha are the eye-witnesses of the occurrence. Both these witnesses have stated that when deceased Pairu Baitha was removing the clay from the wall at the same time, Pritam Baitha, Jugal Baitha, Situ Baitha, Magan Baitha along with Sabitri Devi came there and Pritam Baitha and Jugal Baitha assaulted with lathi to Pairu Baitha while Sito Baitha assaulted with farsa on the very issue of removing the clay from the wall. Magan Baitha and Sabitri Devi were empty handed. These witnesses also stated that they also raised alarm when the accused persons were assaulting to Pairu Baitha. On their raising alarm, Nunulal, Madhu, Dinesh, Andu and Jhakasi also came there, thereafter, the accused persons fled away. The testimony of these two eye-witnesses, who are related witness of the deceased is also corroborated with the evidence of independent witness of the village, who were examined by the prosecution as P.W.2 Nunulal Tatwa, P.W.-3 Dinesh Baitha, P.W.-4 Jhakasi Mandalain, P.W.-5 Andu Tatwa, P.W.-6 Madhu Tatwa. All these witnesses have stated that when they reached at the place of occurrence, maar peet was also going on and Pairu had fallen in unconscious condition. They have stated that they had seen the occurrence, although the eye witness Bhagwati Devi (P.W.-1) and Jairam Baitha (P.W.-7) have stated that all the independent witness of the village who have been examined by the prosecution came at the place of occurrence later on and they told in regard to the occurrence to them. To the contrary, all the independent witnesses produced on behalf of the prosecution have stated that as they reached at the place of occurrence, the injured Pairu Baitha was lying in unconscious condition on the ground and the accused persons Pritam Baitha, Jugal Baitha and Sito Baitha were armed with Lathi and farsa. On reaching the place of occurrence by them, the accused persons fled away. As such the testimony of these independent witnesses P.W.2, P.W.3, P.W.4, P.W.5 and P.W.6 shall be admissible under Section 6 of the Evidence Act as res gestae evidence. 29. The testimony of the eye-witnesses even if they are relative cannot be disbelieved in view of the corroborative testimony of the independent witnesses. As such the testimony of these independent witnesses P.W.2, P.W.3, P.W.4, P.W.5 and P.W.6 shall be admissible under Section 6 of the Evidence Act as res gestae evidence. 29. The testimony of the eye-witnesses even if they are relative cannot be disbelieved in view of the corroborative testimony of the independent witnesses. This ocular evidence is also corroborated with the medical evidence, though the deceased Pairu was not medically examined on the very date of occurrence. Its reason is explained by the prosecution witness P.W.-1 Bhagwati Devi and P.W.-7 Jairam Baitha as well that on the very date of occurrence, they rushed to the injured Pairu Baitha to Nonihat where the doctor expressed his inability to give treatment and thereafter they took injured Pairu to Sadar Hospital Dumka and ultimately he died therein on the very next day i.e., 3rd November, 1990 at night. P.W.-7 Jairam Baitha also stated that they took injured Pairu Baitha by the bullock cart. Admittedly no medical examination was done by the doctor. After his death when the postmortem was conducted, the five ante mortem injuries were found on his body out of which injury no.(i) was the lacerated wound on the vital part of the body i.e., head. As per opinion of the doctor this injury no.(i) was sufficient in ordinary course of business to cause death. As such the proximate cause of death is the injuries which the deceased Pairu Baitha has sustained in the occurrence of 2nd November, 1990 which is well proved by the eye-witness account and also corroborated with the medical evidence. 30. So far as the injuries sustained by the deceased in the occurrence of 2nd November, 1990 is concerned, the same is also proved from the suggestions given by the defense counsel to the prosecution eye-witness P.W.1 and P.W.7 as well. As per defense case, the deceased Pairu had also assaulted to Pritam Baitha and his son Gopal Baitha. The F.I.R. of the same was also lodged by them against Pairu Baitha and Shrawan Baitha which was registered as Sariyahat P.S. Case No.127 of 1990. The copy of the F.I.R. of said case was also produced in defense evidence on behalf of the accused persons. Even the injury report of Pritam Baitha was also filed on behalf of the accused persons in defense evidence. The copy of the F.I.R. of said case was also produced in defense evidence on behalf of the accused persons. Even the injury report of Pritam Baitha was also filed on behalf of the accused persons in defense evidence. The lodging of the F.I.R. of cross case which was registered as Saraiyahat P.S. Case No.127 of 1990 also confirms that on 2nd November, 1990, the alleged occurrence took place. The testimony of the eyewitnesses and the independent witnesses proved that the accused persons, who had objected the removal of clay from the wall by Pairu were the aggressor. The accused person opposed the same and also assaulted to Pairu, who sustained grievous injury and became unconscious on the spot and who ultimately died due to sustaining injuries. 31. So far as some improvement and discrepancy in the statements of the eye-witnesses is concerned, the same is not material as some discrepancy are bound to come on account of social background of the witness and way of perceiving the occurrence. In the case of Bherulal Vs. State of Rajasthan reported in 2009 (66) ACC 997 (SC), the Hon’ble Apex Court had held that the evidence of eyewitnesses cannot be thrown away, merely because the witnesses have exaggerated or are the interested witness. 32. It is settled law that the testimony of the related or interested witness should be examined cautiously. In the case in hand, P.W.1 Bhagwati Devi and P.W.-7 Jairam Baitha, who are the eye-witnesses their testimony are found trust worthy and reliable. Their presence at the place of occurrence is not shaked during cross-examination, even their testimony is also corroborated with the testimony of independent witnesses P.W.-2 to P.W.-6. As such the testimony of these eye-witnesses inspires truth in regard to the occurrence. 33. Learned senior counsel for the appellants submitted that in this case the deceased sustained only one fatal injury i.e., injury no.(i) but the eye-witnesses have stated that Pritam Baitha and Jugal Baitha had assaulted with repeated lathi blow and Situ Baitha had assaulted with farsa while as per opinion of the doctor, the injury no.(i) which was fatal to life was caused by hard and blunt object. As such, this injury was not inflicted by Situ Baitha, who has been assigned role of assaulting with farsa. 34. As such, this injury was not inflicted by Situ Baitha, who has been assigned role of assaulting with farsa. 34. From prosecution evidence it is evident that the eye-witnesses have attributed specific role of assaulting with lathi to the accused Pritam Baitha and Jugal Baitha; while accused-Situ Baitha has been attributed role of assaulting with farsa to the deceased. Certainly as per opinion of the doctor, the injury no.(i) which was inflicted with hard and blunt object. Be that as it may be, but this injury was caused by the accused persons in furtherance of common intention. The common intention of all the accused persons is inferred from their conduct and act at the place of occurrence. From the prosecution evidence, it is proved that the accused Pritam Baitha, Jugal Baitha both were armed with lathi; while Situ Baitha was armed with farsa. These three persons had assaulted with the weapons in their hand to the injured Pairu Baitha and all the three accused persons along with two other accused Sabitri Devi and Magan Baitha came together and all fled away from the place of occurrence together after committing the occurrence. Their thorough conduct and act at the place of occurrence shows that they shared common intention in committing the alleged offence. The injury no.(i) inflicted to injured Pairu Baitha was sufficient in ordinary course of business to cause death. The nature of the weapons was deadly with which the accused persons were armed also reflected their intention to commit murder of the deceased. As such in view of constructive liability under Section 34 of the I.P.C., all the three accused persons are liable to commit murder of the deceased-Pairu Baitha. 35. The Hon’ble Apex Court in the case of State of U.P. vs. Atul Singh etc. etc., reported in AIR 2009 (SC) 2173, has held 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. Meeting of minds of all accused to commit offence should be established. Not necessary to show the overt act on part of every accused. The intention can be inferred from the circumstances appearing from the proved facts of the case. Meeting of minds of all accused to commit offence should be established. Not necessary to show the overt act on part of every accused. The Hon’ble Apex Court in the case of Bengai Mandal @ Begai Mandal vs. State Of Bihar reported in AIR 2010 (SC) 686 has also held that the common intention in most of the cases is to 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 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. In view of the above cited judicial pronouncements of Hon’ble Apex Court and from the evidence adduced on behalf of the prosecution, all the appellants are liable for murder of Pairu Baitha as they had shared common intention to commit murder as discussed hereinabove. 37. Learned senior counsel for the appellants also contended that in this case the I.O. has not been examined and even the blood stained soil was also not sent for examination to State Forensic Science Laboratory. The learned trial court did not consider this defect in the investigation and convicted the appellants. 38. Certainly, in this case, the I.O. was not examined on behalf of the prosecution. This case is based on direct evidence and the eyewitnesses P.W.1- Bhagwati Devi and P.W.-7 Jairam Baith both were examined before the trial court. In their Statement under Section 161 Cr.P.C. and the statement given before the trial court no contradiction could be drawn by the defense counsel during cross-examination. Likewise, the other independent witnesses i.e., P.W.-2 to P.W.-6 were also cross-examined and in their testimony there is nothing on record to show any contradiction in the statement given by these witnesses under Section 161 Cr.P.C. to the I.O. and the statement given by them before the learned trial court. Even the occurrence is also admitted by the accused /appellants as from the side of appellants, the counter case of the same occurrence was also lodged as Saraiyahat P.S. Case No.127 of 1990 against Pairu Baitha and Shrawan Baitha. Even the occurrence is also admitted by the accused /appellants as from the side of appellants, the counter case of the same occurrence was also lodged as Saraiyahat P.S. Case No.127 of 1990 against Pairu Baitha and Shrawan Baitha. In this occurrence Pritam Baitha and Jugal Baitha @ Gopal also alleged to have sustained injuries and their injury report have also been adduced on behalf of the accused/appellants in defense evidence. Therefore non-examination of the I.O. is not found fatal for the prosecution case. The prosecution case is also proved from the eye-witness account which is also corroborated with the medical evidence. Simply not sending the blood stained soil to the SFSL is not fatal as the place of occurrence where the occurrence took place is not disputed. The Hon’ble Apex Court in the case of Bihari Rai vs. State of Bihar (now Jharkhand) reported in 2009 (3) SCC Criminal 1209 has held that non-examination of the I.O., who had only conducted inquest report which was also marked exhibit without any objection and there was no challenge to the correctness of the report. The non-examination of the I.O. does not in any way corrode the credibility of the prosecution version. In the case in hand, the I.O. who recorded the statement of prosecution witnesses and their testimony are found in consonance with the statement given by these witnesses under Section 161 Cr.P.C. The examination of the I.O. was necessary had there been any contradiction in the statement of the prosecution witness under Section 161 Cr.P.C. and the statement given before the Court to explain that why the prosecution witnesses were giving the contradictory statement under Section 161 Cr.P.C. No such contradiction is found in testimony of the prosecution witnesses, as such, the non-examination of the I.O. is not found fatal to the prosecution case. 39. Learned senior counsel for the appellants also contended that the presence of the eye-witnesses cannot be relied as they did not intervene at the time of occurrence. 40. The aforesaid contention of the learned senior counsel for the appellants is not tenable. More so from the evidence it is found that these eye-witnesses had raised alarm, though did not intervene on account of fear as the accused persons were armed with deadly weapon. 40. The aforesaid contention of the learned senior counsel for the appellants is not tenable. More so from the evidence it is found that these eye-witnesses had raised alarm, though did not intervene on account of fear as the accused persons were armed with deadly weapon. On their raising alarm, the persons of the locality also attracted there, who had been examined on behalf of the prosecution to corroborate the testimony of these interested eye-witnesses. The Hon’ble Apex Court in the case of Suresh Yadav @ Guddu vs. State of Chhatisgarh reported in 2022 Livelaw SC 217 has held that the evidence of the eye-witnesses cannot be discarded merely because they did not raise any alarm or did not tried to intervene when the deceased was being ferociously assaulted and stabbed. 41. 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/appellants. As such there appears no justification for interference by this Court in the impugned judgment of conviction. The judgment of conviction dated 20th September, 1993 passed by the court below convicting the accused/ appellants is hereby affirmed. Accordingly, this appeal is hereby dismissed. 42. So far as the sentence passed by the learned trial court is concerned, it is found that the trial court has sentenced the accused/appellants with life imprisonment without imposing fine; while in view of Section 302 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.20,000/- to each of the appellants is also imposed and to this extent the sentence passed by the learned trial court stands modified. 43. The appellants/convicts, namely, Jugal Baitha @ Gopal Baitha and Situ Baitha who were granted bail during pendency of the appeal, their bail bonds are cancelled and they would surrender before the learned trial court who would send them jail to serve out the sentence. 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.)