JUDGMENT : (Sujit Narayan Prasad, J.) : 1. The instant appeal is against the Judgment of conviction and Order of sentence dated 10.06.1994 passed by the Additional Judicial Commissioner, Lohardaga in Sessions Trial No.212/111 of 1990, whereby and whereunder, the appellants, namely, Mahabir Oraon, Narayan Oraon and Budhram Oraon have been convicted under Section 302 read with Section 34 of the Indian Penal Code and they have been sentenced to suffer R.I. for life under Section 302 read with Section 34 of the Indian Penal Code. 2. The prosecution story in brief is that on 08.12.1989 at about 7:00 a.m., the informant, namely, Some Oraon, P.W. 7 along with his brothers, namely, Mangra Oraon and Sewar Oraon (deceased) went to his field for transplantation of potato and to plough their field. At about 12 o’clock in the noon, the informant’s wife, namely, Hira Orain, P.W. 3 came and reported that the accused persons, the appellants, namely, Mahabir Oraon, Narayan Oraon and Budhram Oraon have demolished the wall of the house. The informant along with his brothers ran towards their house after getting such information and when they reached their house, accused Budhram Oraon came armed with spade and threw the same upon Sewar Oraon (deceased) but it did not hit Sewar Oraon. It has been alleged that accused Mahabir Oraon came out from the house and gave spade blow on the head of Sewar Oraon, in consequence thereof he fell down and became unconscious. There was profuse bleeding from the head of Sewar Oraon. It has been alleged that accused Narayan Oraon, appellant no.2 chased the informant for assaulting. Thereafter, the informant along with his brother Mangra Oraon and Ramdayal Oraon, P.W. 4 brought the injured Sewar Oraon to Lohardaga Hospital for treatment. Later on from Lohardaga Hospital, Sewar Oraon was referred to R.M.C.H., Ranchi where he succumbed to injury in course of treatment. The case was registered as Lohardaga P.S. Case No.156/89. After investigation, the Police submitted charge-sheet in the case. After commitment of the case to the Court of Session, charge was framed against the accused persons for the offence under Section 302/34 of the Indian Penal Code and the accused persons’ pleading not guilty and claiming to be tried, they were put to trial. In course of trial, 10 witnesses were examined by the prosecution, including the Investigating Officer and the Doctor, who had conducted the postmortem. In course of trial, 10 witnesses were examined by the prosecution, including the Investigating Officer and the Doctor, who had conducted the postmortem. 3. The instant appeal has been filed on the following grounds:- (i) None of the witnesses have fully supported the prosecution version and without taking into consideration the aforesaid aspect of the matter, the judgment of conviction/sentence has been passed, as such, the same is not sustainable in the eye of law. (ii) The testimony of the prosecution witnesses is not being corroborated from the medical evidence and as such, on this ground also, the prosecution case is to be vitiated. (iii) According to Fardbeyan, Hira Orain, P.W.3 had gone to the field and informed about demolition of the wall where her husband along with two brothers came to the house and Sewar Mahto (deceased) was assaulted. But in deposition of witnesses, especially P.W.1 Jatti Orain, P.W. 2 Jatri Orain (wife of the deceased) and P.W.3 Hira Orain have stated that all three brothers were coming to take meal. Thus, from the evidence of P.W.1, P.W. 2 and P.W.3, it appears that Some Oraon, P.W.7 could not have seen the actual assault. (iv) The fact would demonstrate that it is a case and counter case and as such, the assault took place but the same cannot be construed to be with an intention to kill and as such, Section 302 will not be attracted but that aspect of the matter has not properly been appreciated by the learned trial Court. 4. Learned counsel for the appellants on the aforesaid backdrop, has submitted that the impugned judgment is not sustainable in the eye of law. 5. Per contra, Mr. Ravi Prakash, learned Spl. Public Prosecutor has submitted that the impugned Judgment of conviction/sentence suffers from no infirmity, since the learned trial Court has taken into consideration the testimony of P.W. 2 Jatri Orain (wife of the deceased) and P.W.3 Hira Orain, who happen to be eye witnesses coupled with its corroboration by the testimony of P.W.1 Jatti Orain and P.W. 4 Ramdayal Oraon, who happen to be independent witnesses and by taking together their testimony as also considering the injury which was found on the dead body of the deceased, the judgment of conviction/sentence was passed, therefore, the same does not require any interference. The question which has been raised as a ground to show interference with the impugned judgment on behalf of the appellants that there is discrepancy in the medical evidence but as per the settled position of law even if, there is any discrepancy in the medical evidence if the prosecution case has been supported by the ocular testimony, it is the ocular testimony which is to be prevailed over the medical evidence and that is the case herein, wherein, the ocular testimony of P.W.1 Jatti Orain, P.W. 2 Jatri Orain (wife of the deceased), P.W. 3 Hira Orain, P.W. 4 Ramdayal Oraon and P.W. 7 Some Oraon, (informant), have fully supported the prosecution version and as such, it is incorrect on the part of the appellants to take the ground that because there is discrepancy in the medical evidence, the impugned judgment/sentence will be vitiated. 6. This Court having heard the grounds agitated on behalf of the parties and in order to scrutinize the legality and propriety of the impugned judgment of conviction/sentence, deems it fit and proper to refer the prosecution story and the testimonies of the witnesses. 7. The prosecution altogether has examined 10 witnesses to prove the charged leveled against the appellants, i.e., P.W. 1 Jatti Orain, P.W. 2 Jatri Orain, P.W. 3 Hira Orain, the wife of the informant, P.W. 4 Ramdayal Oraon, P.W. 5 Birsa Oraon, P.W. 6 Saklu Oraon, P.W. 7 Some Oraon, the informant of the case, P.W. 8 Bishwanath Tudu, the Investigating Officer, P.W. 9, one of the doctor, namely, Dr. Kant Kumar Kujur who had examined the deceased at Sadar Lohardaga Hospital and P.W. 10, the Doctor, namely, Dr. Saroj Kumar who had conducted the autopsy of the deceased at R.M.C.H., Ranchi. P.W. 1, namely, Jatti Orain has stated in her evidence that two years back in the month of Agahan on Friday at about 12 o’clock in the noon, she was going to the house of Some Oraon. She has stated that when she reached there, Sewar Oraon, Mangra Oraon and Some Oraon, all the three brothers came from the field for taking their lunch. When Sewar Oraon reached near his court-yard, accused Mahabir Oraon, appellant no.1 had assaulted with spade on the head of the deceased, as a result of which Sewar Oraon fell down on the ground. When Sewar Oraon reached near his court-yard, accused Mahabir Oraon, appellant no.1 had assaulted with spade on the head of the deceased, as a result of which Sewar Oraon fell down on the ground. She has further stated that thereafter Jouri Oraon (not an accused) gave two lathi blows on Sewar Oraon. She has also stated that accused Narayan Oraon, appellant no.2 and Jouri Oraon chased Mangra Oraon armed with lathi. She has also stated that accused Narayan Oraon, appellant no.2 gave a slap to Mangra Oraon. She has stated that thereafter she along with other witnesses brought the injured Sewar Oraon to Lohardaga Hospital and from where he was referred to R.M.C.H. Hospital. P.W.1 has thoroughly been cross-examined on behalf of the defence but she stood quite consistent to the prosecution case. It is evident from the details furnished of the P.W.1 that the trial Court after considering her parental address has considered her as an independent witness. P.W. 2, namely, Jatri Orain who happens to be the wife of Sewar Oraon (deceased) has stated in her evidence that on the day and time of occurrence at about 12 o’ clock in the noon, she was present in her house. There was a wall in court-yard in between her house and the house of accused persons. The accused Budhram Oraon, appellant no.3 was demolishing the wall and other accused persons were standing there. Her husband Sewar Oraon (deceased), Mangra Oraon and Some Oraon came there from the field for taking their lunch. She has further stated that accused Budhram Oraon armed with spade came out from the house and tried to assault Sewar Oraon but it could not hit. She has stated that accused Mahabir Oraon, appellant no.1 came armed with spade and gave a spade blow on the head of Sewar Oraon. Sewar Oraon (deceased) fell down on the ground. She has further stated that accused Mahabir Oraon, Narayan Oraon and Jouru Oraon chased Mangra Oraon. Thereafter, Sewar Oraon (deceased) was brought to Lohardaga Hospital from where he was referred to R.M.C.H., Ranchi where he succumbed to injury. P.W. 2 in her cross-examination has supported the prosecution case and even the manner of occurrence. She has further stated that accused Mahabir Oraon, Narayan Oraon and Jouru Oraon chased Mangra Oraon. Thereafter, Sewar Oraon (deceased) was brought to Lohardaga Hospital from where he was referred to R.M.C.H., Ranchi where he succumbed to injury. P.W. 2 in her cross-examination has supported the prosecution case and even the manner of occurrence. P.W. 3, namely, Hira Orain, who happens to be the wife of the informant, Some Oraon has also supported the prosecution version and stated that on the date of occurrence at about 10:00 a.m., the accused Budhram Oraon was demolishing the wall of the court-yard and was also telling that he will kill one of the brother out of four brothers. She has further stated at about 12:00 o’clock in the noon, her husband Some Oraon, Sewar Oraon and Mangra Oraon came to the house for taking lunch. She has further stated that accused Budhram Oraon, appellant no.2 started abusing Sewar Oraon and threw spade on the head of Sewar Oraon but it could not hit. She has further stated that accused Mahabir Oraon lifted the said spade and assaulted on the head of Sewar Oraon (deceased). Sewar Oraon fell down and bleeding was started and was brought to Lohardaga Hospital, subsequently, he was referred from the Lohardaga Hospital to the R.M.C.H., Ranchi where he succumbed to injury. P.W. 3 has been cross-examined at length but it would be evident from the statement recorded while conducting her cross-examination that she has corroborated what she has said in the examination-in-chief by supporting the prosecution version. P.W.4, namely, Ramdayal Oraon has also supported the prosecution version and has stated that he saw that there was quarrel going on in between the accused person and Some Oraon, Sewar Oraon and Mangra Oraon and at that time, accused Mahabir Oraon, appellant no.1 gave a spade blow on the head of Sewar Oraon as a result of which he fell down and became unconscious. There was bleeding from the head of the deceased Sewar Oraon and as such, he was carried to the Hospital by rickshaw and the doctor who had treated him at Lohardaga Hospital told that the injured would not be treated properly here and has referred him to R.M.C.H., Ranchi for better treatment where he succumbed to injury. P.W. 4 has thoroughly been cross-examined and from paragraph4 of cross-examination, it is evident that he saw the occurrence. P.W. 4 has thoroughly been cross-examined and from paragraph4 of cross-examination, it is evident that he saw the occurrence. P.W.5 and P.W.6, namely, Birsa Oraon and Saklu Oraon respectively are the seizure list witnesses. P.W. 7, namely, Some Oraon, the informant has stated by corroborating what he has stated while reporting the fardbeyan which finally culminated into the First Information Report by making a statement that about three years back in the month of Aghan on Friday, when he went for ploughing his field along with his brother Sewar Oraon and Mangra Oraon in the morning hours, her wife Hira Orain-P.W.3 came and reported that accused persons are demolishing the wall. He has further stated that he along with his brothers came to his house. The accused Budhram Oraon, appellant no.3 threw spade upon Sewar Oraon but it could not hit. He has further stated that thereafter accused Mahabir Oraon, appellant no.1 gave spade blow on the right side of the head of Sewar Oraon. Sewar Oraon (bleeding) fell down and there was bleeding from his head. He has further stated that when he went to lift his brother Sewar Oraon, accused Narayan Oraon, appellant no.2 with lathi in his hand and Mahabir Oraon, appellant no.1 with spade in his hand chased him. He has further deposed that he had given statement before the Police. He has stated that Sewar Oraon died in Bariatu Hospital. He has thoroughly been cross-examined, wherein, he has not deviated what he has stated in the examination-in-chief rather thoroughly supported the prosecution case as well as his statement given in the fardbeyan in course of his evidence. The Doctor, namely, Kant Kumar Kujur has been examined as P.W. 9 who had treated the deceased at Sadar Hospital, Lohardaga and examined the injuries proving the injury report, wherein, he has found the injury grievous in nature caused by hard blunt substance, may be, caused by corner portion of spade. He has stated that age of injury to be about 5 hours. The Doctor, namely, Saroj Kumar has been examined as P.W. 10 who had conducted the autopsy of the deceased Sewar Oraon on 11.12.1989 at R.M.C.H., Ranchi at about 12:00 hours and found the following ante mortem injuries:- (A) External injuries:- (i) Abrasion 4 cm x 1 cm on over left arm front. The Doctor, namely, Saroj Kumar has been examined as P.W. 10 who had conducted the autopsy of the deceased Sewar Oraon on 11.12.1989 at R.M.C.H., Ranchi at about 12:00 hours and found the following ante mortem injuries:- (A) External injuries:- (i) Abrasion 4 cm x 1 cm on over left arm front. (ii) Lacerated wound-stitched 3 cm x 1/2 cm over left temporo parietal region of head. (B) Internal injuries:- (i) There was contusion of left temporo parieto frontal scalp with depressed fracture of left temporo parieto frontal bone measuring 4 cm x 5 cm area. The fracture line extended to the left temporal bone. There was sub-devial blood and blood clot over left temporo parieto frontal region of brain. P.W. 10 had opined about the injury which has been said to be antemortem in nature caused by hard and blunt substance. It has been stated by him that they may not be caused from the edge side of the spade but this may be caused from the back portion of the spade. He has also stated that death was due to head injury. Time elapsed has been said to be since death 12 to 24 hours from the time of postmortem examination. He has proved the postmortem examination report which has been marked as Ext.6. Bishwanath Tudu, the Investigating Officer has been examined as P.W.8 and has stated that on 08.12.1989, he was posted as A.S.I. at Lohardaga P.S. on which date at about 2:30 p.m., the O.D. slip was received from Lohardaga Hospital and he proceeded to Sadar Hospital Lohardaga. He has stated that at about 3:00 p.m., he recorded the fardbeyan of informant Some Oraon. The fardbeyan was read over to the informant Some Oraon who put his L.T.I upon that. The Investigating Officer has proved the fardbeyan marked as Ext.3 and also proved the formal F.I.R. marked as Ext.4. The endorsement on fardbeyan of the officer-in-charge marked as Ext.3/1 and in course of investigation, he has prepared injury slip of injured Sewar Oraon. He has also stated that he arrested the accused Mahabir Oraon, appellant no.1 in the Hospital and recorded his statement. He has further stated about inspecting the place of occurrence in presence of P.W.3 Hira Orain, wife of the informant, Some Oraon. The place of occurrence was the Khalihan situated in front of the house of the informant and the accused persons. He has further stated about inspecting the place of occurrence in presence of P.W.3 Hira Orain, wife of the informant, Some Oraon. The place of occurrence was the Khalihan situated in front of the house of the informant and the accused persons. He had found the blood in heavy quantity. He had also found the sign of blood about 15’ south from the Khalihan. He has further stated that the house of informant Some Oraon is situated west to the Khalihan and house of accused Narayan Oraon is situated west to Some Oraon. In his cross-examination, he has stated that witness, namely, Jatri Orain, P.W.2 has stated before him that accused Mahabir Oraon has assaulted the deceased with spade as would appear from the statement made at paragraph-15 of the cross-examination of the Investigating Officer. He has also stated that Hira Orain, P.W. 3, wife of the informant has stated before him that Mahabir Oraon has given spade blow upon the deceased. The learned trial Court has considered the testimony of these witnesses and considering the testimony of P.W.1, P.W. 2, P.W.3, P.W. 4 and P.W.7, the informant has found the charge leveled against the appellants to be proved beyond all reasonable doubts and therefore, the judgment of conviction/sentence has been passed which is the subject matter of the instant appeal. 8. The issue has been raised by the learned counsel for the appellants that there is discrepancy in the ocular evidence and the medical evidence and as such, the entire trial is to be vitiated. 9. The position of law is well settled that if the prosecution has been able to prove the charges leveled against the person concerned who has committed the crime from the testimony of the eye witnesses even if there is discrepancy in the medical evidence, the testimony of the ocular witnesses cannot be discarded, reference in this regard may be made to the judgment rendered by the Hon’ble Apex Court in the case of Sadhu Saran Singh Vrs. State of Uttar Pradesh & Ors., reported in (2016) 4 SCC 357 , wherein, at paragraph-26, it has been held as under:- 26. We are of the view that the High Court, for acquitting the respondents, had mainly relied upon the medical evidence in a very inappropriate manner. State of Uttar Pradesh & Ors., reported in (2016) 4 SCC 357 , wherein, at paragraph-26, it has been held as under:- 26. We are of the view that the High Court, for acquitting the respondents, had mainly relied upon the medical evidence in a very inappropriate manner. When the doctor (PW 7) in his examination-in-chief had categorically stated that the incident could have occurred at 8.00 a.m. which corroborated the case of the informant, there was no reason to disbelieve this fact to hold that the incident occurred between 2.00 to 4.00 a.m. merely basing on a vague statement made by the doctor in the cross-examination. Also we believe that merely for the reason that no blunt injuries were present on the deceased, the whole evidence of PW 1 cannot be discarded as primacy has to be given to the ocular evidence, particularly in the case of minor discrepancies. This Court in Darbara Singh v. State of Punjab [Darbara Singh v. State of Punjab, (2012) 10 SCC 476 : (2013) 1 SCC (Cri) 1037] , wherein this Court has held : (SCC pp. 480-81, para 10) “10. … So far as the question of inconsistency between the medical evidence and the ocular evidence is concerned, the law is well settled that, unless the oral evidence available is totally irreconcilable with the medical evidence, the oral evidence would have primacy. In the event of contradictions between medical and ocular evidence, the ocular testimony of a witness will have greater evidentiary value vis-à-vis medical evidence and when medical evidence makes the oral testimony improbable, the same becomes a relevant factor in the process of evaluation of such evidence. It is only when the contradiction between the two is so extreme that the medical evidence completely rules out all possibilities of the ocular evidence being true at all, that the ocular evidence is liable to be disbelieved.” (emphasis supplied) Likewise, in the case of Abdul Sayeed Vrs. State of Madhya Pradesh, reported in (2010) 10 SCC 259 , it has been held by the Hon’ble Apex Court at paragraph-34 to 39 as under:- “34. State of Madhya Pradesh, reported in (2010) 10 SCC 259 , it has been held by the Hon’ble Apex Court at paragraph-34 to 39 as under:- “34. Drawing on Bhagirath case [ (1999) 5 SCC 96 : 1999 SCC (Cri) 658] , this Court has held that where the medical evidence is at variance with ocular evidence, “it has to be noted that it would be erroneous to accord undue primacy to the hypothetical answers of medical witnesses to exclude the eyewitnesses' account which had to be tested independently and not treated as the ‘variable’ keeping the medical evidence as the ‘constant’ ”. 35. Where the eyewitnesses' account is found credible and trustworthy, a medical opinion pointing to alternative possibilities cannot be accepted as conclusive. The eyewitnesses' account requires a careful independent assessment and evaluation for its credibility, which should not be adversely prejudged on the basis of any other evidence, including medical evidence, as the sole touchstone for the test of such credibility. “21. … The evidence must be tested for its inherent consistency and the inherent probability of the story; consistency with the account of other witnesses held to be creditworthy; consistency with the undisputed facts, the ‘credit’ of the witnesses; their performance in the witness box; their power of observation, etc. Then the probative value of such evidence becomes eligible to be put into the scales for a cumulative evaluation.” [Vide Thaman Kumar v. State (UT of Chandigarh) [ (2003) 6 SCC 380 : 2003 SCC (Cri) 1362] and Krishnan v. State [ (2003) 7 SCC 56 : 2003 SCC (Cri) 1577] at SCC pp. 62-63, para 21.] 36. In Solanki Chimanbhai Ukabhai v. State of Gujarat [ (1983) 2 SCC 174 : 1983 SCC (Cri) 379 : AIR 1983 SC 484 ] this Court observed : (SCC p. 180, para 13) “13. Ordinarily, the value of medical evidence is only corroborative. It proves that the injuries could have been caused in the manner alleged and nothing more. The use which the defence can make of the medical evidence is to prove that the injuries could not possibly have been caused in the manner alleged and thereby discredit the eyewitnesses. Ordinarily, the value of medical evidence is only corroborative. It proves that the injuries could have been caused in the manner alleged and nothing more. The use which the defence can make of the medical evidence is to prove that the injuries could not possibly have been caused in the manner alleged and thereby discredit the eyewitnesses. Unless, however the medical evidence in its turn goes so far that it completely rules out all possibilities whatsoever of injuries taking place in the manner alleged by eyewitnesses, the testimony of the eyewitnesses cannot be thrown out on the ground of alleged inconsistency between it and the medical evidence.” (emphasis added) 37. A similar view has been taken in Mani Ram v. State of U.P. [1994 Supp (2) SCC 289 : 1994 SCC (Cri) 1242] , Khambam Raja Reddy v. Public Prosecutor [ (2006) 11 SCC 239 : (2007) 1 SCC (Cri) 431] and State of U.P. v. Dinesh [ (2009) 11 SCC 566 : (2009) 3 SCC (Cri) 1484]. 38. In State of U.P. v. Hari Chand [ (2009) 13 SCC 542 : (2010) 1 SCC (Cri) 1112] this Court reiterated the aforementioned position of law and stated that : (SCC p. 545, para 13) “13. … In any event unless the oral evidence is totally irreconcilable with the medical evidence, it has primacy.” 39. Thus, the position of law in cases where there is a contradiction between medical evidence and ocular evidence can be crystallised to the effect that though the ocular testimony of a witness has greater evidentiary value vis-à-vis medical evidence, when medical evidence makes the ocular testimony improbable, that becomes a relevant factor in the process of the evaluation of evidence. However, where the medical evidence goes so far that it completely rules out all possibility of the ocular evidence being true, the ocular evidence may be disbelieved.” 10. This Court has proceeded to examine as to whether on the aforesaid ground the judgment of conviction and sentence can be said to suffer from any irregularity or impropriety. However, where the medical evidence goes so far that it completely rules out all possibility of the ocular evidence being true, the ocular evidence may be disbelieved.” 10. This Court has proceeded to examine as to whether on the aforesaid ground the judgment of conviction and sentence can be said to suffer from any irregularity or impropriety. Here in the instant case, the testimony of P.W.7, cannot be discarded, reason being that P.W.3, the wife of the informant, namely, Hira Orain has reported the occurrence to her husband, P.W.7 that the wall was being demolished and when the informant along with his brothers and the deceased rushed to the place of occurrence, accused Budhram Oraon has tried to assault the deceased by spade but the deceased somehow managed to escape from the place of occurrence. Upon this, accused Mahabir Oraon, appellant no.1 came out from his house and by lifting the spade had assaulted the deceased Sewar Oraon who sustained this assault, therefrom the deceased fell down full with blood and became unconscious. P.W.7 has further supported the version of P.W.3 wherein she in categorical term has stated that when Sewar Oraon became unconscious, he was carried to the Lohardaga Hospital for treatment and where the doctor, P.W.9 has found the injury sustained on the body of the deceased to be given by the hard and blunt substance. P.W.1 Jatti Orain has supported the prosecution version which has been considered to be an independent witness by the learned trial Court. The status of P.W. 1 to be an independent witness has been considered by this Court in order to see as to whether P.W. 1 has correctly been considered to be an independent witness and for that purpose, has gone across the testimony of P.W.1, wherefrom it is evident that she has stated about her parental house in nearby village and she had reached to the place of occurrence which is in the different village for the purpose of attending a house of her guest and in course thereof, she had seen the occurrence of assault given by the accused persons, appellants upon Sewar Oraon. Therefore, this Court is of the view that status of P.W.1 which has been considered to be an independent witness cannot be said to be incorrect finding. Therefore, this Court is of the view that status of P.W.1 which has been considered to be an independent witness cannot be said to be incorrect finding. Likewise, P.W.4 has also been considered to be an independent witness who also happens to be native of different village as would appear from the testimony of P.W. 4. Therefore, the consideration given by the trial Court regarding the status of P.W. 4 to be an eye witness can also not be said to be in question. P.W. 1 and P.W. 4 had been considered to be independent witnesses and they had seen the crime as would appear from their testimony, wherein, it has been stated by them in specific term that they had seen the appellants assaulting the deceased. Therefore, the material which has been gathered by the prosecution in course of trial is the testimony of P.W. 1 and P.W. 4 who happen to be independent witness, have supported the testimony of P.W. 2 and P.W. 3 and that led the learned trial Court to reach to the conclusion of establishing the case by prosecution beyond all shadow of doubt. 11. The issue of discrepancy in the medical evidence is being raised on behalf of the appellants has also been examined by this Court and it is evident from the testimony of doctor who has treated the deceased in the Lohardaga Hospital and the testimony of doctor who had conducted the autopsy of the deceased in the R.M.C.H. Ranchi that both the doctors have opined about the nature of injury to be caused by the hard and blunt substance. The doctor who had conducted the autopsy has found the injury antemortem in nature, i.e., (A) External injuries:- (i) Abrasion 4 cm x 1 cm on over left arm front. (ii) Lacerated wound-stitched 3 cm x / cm over left temporal parietal region of head. (B) Internal injuries:- (i) There was contusion of left temporo parieto frontal scalp with depressed fracture of left temporo parieto frontal bone measuring 4 cm x 5 cm area. The fracture line extended to the left temporal bone. There was sub-devial blood and blood clot over left temporo parieto frontal region of brain. (B) Internal injuries:- (i) There was contusion of left temporo parieto frontal scalp with depressed fracture of left temporo parieto frontal bone measuring 4 cm x 5 cm area. The fracture line extended to the left temporal bone. There was sub-devial blood and blood clot over left temporo parieto frontal region of brain. Such injury has been questioned on behalf of the appellants that as per the prosecution case, wherein, the allegation has been leveled that the assault was given by the spade on the deceased and as such, from the spade, the nature of injury which had been found by the doctor, P.W.10 while conducting the postmortem, is not possible. Even accepting the aforesaid fact for the sake of argument then also for the aforesaid variation, the testimony of eye witnesses, i.e., P.W. 2 Jatri Orain Orain (wife of the deceased) and P.W. 3 Hira Orain (wife of the informant) and testimony of independent eye witnesses i.e., P.W. 1 Jatti Orain and P.W. 4 Ramdayal Oraon, cannot be discarded in view of the position of law as has been referred hereinabove. 12. It is being clarified that the nature of injury although was abrasion and lacerated wound etc. but the opinion which has been shown by the doctor, the reason for death had been caused by the hard and blunt substance and it cannot be doubted that there can be an injury by the spade said to be caused by the hard and blunt substance and as such, we are not in agreement with the argument advanced on behalf of the appellants that merely because the nature of injury has been shown to be abrasion and lacerated wound etc., the testimony of witnesses is to be discarded. 13. Accordingly, the aforesaid ground is being rejected. 14. The other ground has been taken that it is a case and counter case and as such, due to the heat of moment, the occurrence took place but no such material has been brought in course of trial on behalf of the appellants raising the issue of case and the counter case as also an F.I.R. was instituted but even then there is no suggestion that in private defence the occurrence took place. 15. 15. Be that as it may, even on the basis of the aforesaid submission, it can be presumed that the death is there and the appellants are the assailants due to whose assault the death ultimately occurred and if in that view of the matter, the learned trial Court has found the charge proved beyond all shadow of doubt, the same cannot be said to suffer from an error. Further, even the Investigating Officer had fully supported the version, wherein, P.W. 1 Jatti Orain and P.W.3 Hira Orain had reiterated before him about the prosecution version as contained in the fardbeyan. Therefore, the Investigating Officer had also found the occurrence took place and from the evidence of the Investigating Officer, it would be evident that P.W. 1 Jatti Orain and P.W.3 Hira Orain had reiterated about the occurrence before him. 16. It is evident that the charge has been framed under Section 34 of the IPC and ingredients pertaining to Section 34 is said to be attracted taking into consideration the common intention of the accused persons who had shared the intention in order to commit the murder of the deceased, namely, Sewar Oraon. 17. 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. 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. 18. 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. 18. This Court, on the basis of the aforesaid discussion is of the view that it is not a case as agitated that the prosecution has failed to prove the charge beyond all shadow of doubt, rather, it would be evident from the testimony of the witnesses taking together with the medical evidence that the prosecution has been able to prove the charge beyond all shadow of doubts and taking the fact into consideration, the learned trial Court has found the culpability of the appellants and has convicted the appellants for commission of crime attracted under Section 302/34 of the IPC, which according to our considered view cannot be said to suffer from an error. 19. Learned APP appearing for the State has pointed out that the learned trial Court has committed an error in passing the order of sentence under Section 302 of the IPC but without any fine. He has argued the aforesaid fact on the basis of the provision of fine as contained under Section 302 of the IPC, wherein, it has been stipulated that sentence is to be along with fine mandatorily to be imposed. 20. Learned counsel for the appellants has not disputed the aforesaid statutory provision, however, he has submitted that the appellants since are poor and as such, true consideration be given regarding the quantum of fine. 21. 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.” 22. Punishment for murder.-Whoever commits murder shall be punished with death, or [imprisonment for life], and shall also be liable to fine.” 22. Considering the aforesaid submission, the order of sentence is modified to the extent that apart from the sentence to undergo rigorous imprisonment for life, a fine of Rs.1,000/-(Rupees One Thousand) to each of the appellants, is hereby imposed. 23. With the aforesaid modification in the order of sentence, the instant appeal stands dismissed. 24. Consequent upon dismissal of the appeal preferred by the appellants, since appellant nos.1 Mahabir Oraon, appellant no.2 Narayan Oraon and appellant no.3 Budhram Oraon, who are enjoying suspension of sentence after the order being passed by the 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. 25. 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. 26. Let the Lower Court Records be sent back to the Court concerned forthwith, along with the copy of this Judgment.