JUDGMENT : Pradeep Kumar Srivastava, J. 1. The instant criminal appeal is preferred by the above- named appellants for setting aside the judgment of conviction and order of sentence dated 18.09.2002/19.09.2002 passed by learned Additional Sessions Judge, Fast Track Court No. IV, Dhanbad in Sessions Trial No. 378 of 1996, whereby and whereunder, the appellants have been held guilty for the offence punishable under Section 302 of the I.P.C. and sentenced to undergo rigorous imprisonment for life. Appellant no. 2, Arbind Singh has also been held guilty for the offence under Section 27 of the Arms Act, but due to long incarceration during the trial, no separate sentence has been passed for the offence under Section 27 of the Arms Act. 2. We have heard arguments of Mr. Navneet Sahay, learned Amicus Curiae appearing for the appellant and Mr. Manoj Kumar Mishra, learned A.P.P. appearing for the State. 3. The factual matrix giving rise to this appeal is that on 31.03.1996 at about 3:00 P.M. one Dilip Kumar Bose was returning along with Ramdhani Yadav on the Scooter bearing No. BR-17A-3939 from his own garage situated at Chirkunda. The Scooter was being driven by Ramdhani Yadav. It is further alleged that when they reached to Maithan More near Tempo Stand, the road was jammed, therefore, Scooter was stopped on the road. In the meantime, accused Shashi Singh being armed with dab ( nko ) along with 5-6 persons arrived and gave a dab blow on the neck of Ramdhani Yadav. The accused persons also assaulted to the informant, Dilip Kumar Bose with dab ( nko ) causing grievous injuries on his hand, wrists and arm and Ramdhani Yadav has sustained severe injuries. 4. The fardbeyan of the informant was recorded by S.I. Sivil Paswan on 31.03.1996 at 17:00 P.M. at State Dispensary, Chirkunda. The motive behind the occurrence is alleged that towards west side of Sanjay Chowk, 17 Kattha land was belonging to one Sardarji, which was purchased by Ramdhani Yadav through registered sale deed. The said land was illegally possessed by Shashi Singh, who has constructed a hotel on the said land, when Ramdhani Yadav requested to Shashi Singh to remove his temporary Hotel, then it was removed and land was levelled by Ramdhani Yadav on 30.03.1996 at about 11:00 A.M., Thereafter, this occurrence took place. 5. The said land was illegally possessed by Shashi Singh, who has constructed a hotel on the said land, when Ramdhani Yadav requested to Shashi Singh to remove his temporary Hotel, then it was removed and land was levelled by Ramdhani Yadav on 30.03.1996 at about 11:00 A.M., Thereafter, this occurrence took place. 5. On the basis of fardbeyan of the informant, FIR was registered as Chirkunda (Kumardhubi O.P.) P.S. Case No. 69 of 1996 for the offences under Sections 147, 148, 149, 307, 324, 341 of the I.P.C. Later on, Section 302 of the I.P.C. and Section 27 of the Arms Act was added after death of Ramdhani Yadav. 6. The case was investigated by S.I. Civil Paswan, who after conclusion of investigation, submitted charge sheet against the above-named appellants for the offences under Sections 302, 307, 324, 379, 34 of the I.P.C. and Section 27 of the Arms Act. After taking cognizance, the case was committed to the court of Sessions, where S.T. No. 378 of 1996 was registered. 7. The charge under Section 302/34 and 307/34 of the I.P.C. was framed against all the appellants for causing murder of Ramdhani Yadav and attempting to cause murder of Dilip Kumar Bose. Appellant – Arvind Singh was additionally charged under Section 27 of the Arms Act. 8. In course of trial, altogether eight witnesses were examined by the prosecution. P.W.-1 : Nandlal Yadav (Eye-witness). P.W.-2 : Heera Yadav (Eye-witness). P.W.-3 : Deonath Yadav (Eye-witness). P.W.-4 : Dilip Kumar Bose (Informant) (Declared Hostile). P.W.-5 : Swarath Yadav (Eye-witness). P.W.-6 : Dr. Shashi Bhushan Prasad Singh has examined the injured-cum-informant. P.W.-7 : Dr. Binod Kumar has proved the P.M. Report of the deceased Ramdhani Yadav as Exhibit-3. P.W.-8 : S.I. Sivil Paswan is the Investigating Officer of this case. Apart from oral testimony of above witnesses, following documentary evidence have been adduced by the prosecution:- Exhibit-1 : Signature of Dilip Kumar Bose on the fardbeyan. Exhibit-2 : Injury Report of Dilip Kumar Bose, written and signed by Dr. Shashi Bhushan Singh. Exhibit-3 : Post-mortem report of deceased Ramdhani Yadav, written and signed by Dr. Binod Kumar. Exhibit-4 : Fardbeyan written by Sri. S. Paswan and signed by Dilip Bose. Exhibit-5 : Report prepared by I.O. while referring the injured Dilip Kumar Bose to medical treatment. Exhibit-2 : Injury Report of Dilip Kumar Bose, written and signed by Dr. Shashi Bhushan Singh. Exhibit-3 : Post-mortem report of deceased Ramdhani Yadav, written and signed by Dr. Binod Kumar. Exhibit-4 : Fardbeyan written by Sri. S. Paswan and signed by Dilip Bose. Exhibit-5 : Report prepared by I.O. while referring the injured Dilip Kumar Bose to medical treatment. Exhibit-6 : Formal F.I.R. Exhibit-7 & : Forwarding note of the I.O. of this case forwarding the 7/1 fardbeyan to Chirkunda P.S. for institution of this case. Exhibit-8 : Inquest report written and signed by ASI S.N. Mandal in carbon copy. Exhibit-9 : Challan referring the dead body to Hospital for conducting post-mortem examination. 9. On the other hand, the case of defence is denial from occurrence and false implication due to land dispute. The defence has also examined two witnesses namely, Lalan Kumar Jha, who has proved Exhibit-B and D.W.-2, Upendra Thakur, a Saloon Owner near the place of occurrence. The defence has also adduced following documentary evidences: Exhibit-A : Paragraph no. 27 of the case diary. Exhibit-B : Application written by prisoner Hiralal Yadav (P.W.-2) on 08.07.1998 from Jail Custody. Exhibit-C : Certified copy of order sheet dated 13.11.1986 of Govindpur P.S. Case No. 275/1986. Exhibit-D : Certified copy of F.I.R. of Govindpur P.S. Case No. 275/1986. Exhibit-E : Certified copy of order-sheet of G.R. Case No. 1645/1991 (Kulti P.S. Case No. 260 of 1991). Exhibit-F : Certified copy of F.I.R. of Kulti P.S. Case No. 260 of 1991. Exhibit-F/I : Certified copy of order dated 10.11.2000 in G.R. Case No. 1645 of 1991. Exhibit-G : Certified copy of charge sheet of Kulti P.S. Case No. 260/1991. 10. On the basis of oral and documentary evidence adduced by the parties, the learned trial court arrived at conclusion that the prosecution has been able to prove the charges levelled against the accused persons beyond all shadow of reasonable doubt and passed the judgment of conviction and sentence of the appellants. 11. 10. On the basis of oral and documentary evidence adduced by the parties, the learned trial court arrived at conclusion that the prosecution has been able to prove the charges levelled against the accused persons beyond all shadow of reasonable doubt and passed the judgment of conviction and sentence of the appellants. 11. Learned Amicus Curiae appearing for the appellants has submitted that the impugned judgment and order suffers from error of law and fit to be set aside on the following grounds: (i) The learned trial court has failed to consider that the eye-witnesses i.e. P.W.-1, 2, 3 & 5 are interested and close relatives of the deceased and their statements shows that none of them were present at the place of occurrence, their statements are full of contradictions and discrepancies. (ii) The trial court has failed to consider that the genesis of the occurrence, as alleged by prosecution and even the place of occurrence is not reliable as the I.O. in his statement said that it was north of temple of Bajrang Bali by the side of the road, whereas in the F.I.R. he has described it at the tempo stand Maithan More. (iii) Neither the post-mortem report nor the inquest report of Ramdhani Yadav shows any injury caused by bullet or pistol. Hence, the allegation that the deceased was fired by Pistol is absolutely false and fabricated one. (iv) The witnesses of the inquest report i.e. Ram Prasad Yadav and Manik Ram Jaiswal were not examined by the learned trial court, hence inquest report is also unreliable. (v) Independent witnesses of occurrence i.e. Anwar Sheikh and Kanhai Singh have not been examined by the prosecution. (vi) No specific allegation of murder on any one of the appellants was alleged, but even then, they were convicted under Section 302 of the I.P.C. and even without aid of Section 34 of the I.P.C., which is not permissible in law. 12. Per contra, learned APP appearing for the State refuting the aforesaid contentions raised on behalf of the appellants has submitted that the learned trial court has very wisely and aptly analyzed and appreciated in threadbare manner the evidence adduced by both the parties and arrived at right conclusion. The impugned judgment and order suffer from no illegality or infirmity, calling for any interference. This appeal has no merits and fit to be dismissed. 13. The impugned judgment and order suffer from no illegality or infirmity, calling for any interference. This appeal has no merits and fit to be dismissed. 13. We have gone through the record of the case along with impugned judgment in the light of contentions raised on behalf of respective parties. 14. It appears that altogether 08 witnesses were examined by the prosecution to substantiate the charges levelled against the accused persons. 15. P.W.-1 : Nandlal Yadav has claimed to be eye-witness of the occurrence. According to him, on 31.03.1996 at about 3:15 PM, he was sitting at the Khatal of Mahtoji near Maithan More, meanwhile, he heard hulla of Dilip Bose that Shashi is assaulting him then he rushed towards the place of occurrence and saw that Shashi Singh and Raju Singh assaulted Ramdhani Yadav by dab, Arbind Singh holding a pistol and shot fire upon the Ramdhani Yadav. Ramdhani Yadav fell down and became unconscious. The motive behind the occurrence is alleged that a land was purchased by Ramdhani Yadav for running Hotel, which was already illegally occupied by Shashi Singh. After purchase the land was got vacated from Shashi Singh and land was levelled by Ramdhani Yadav. Hence, this occurrence took place. He has further stated that Ramdhani Yadav died during course of treatment. He has witnessed to the seizure list also. Blood-stained earth was seized in his presence. He has also signed over the seizure list. According to him, other witnesses Prahalad Singh, Hira Yadav, Swarath Yadav, Debnath Yadav have also arrived at the place of occurrence. In his cross-examination, this witness admits that inspite of knowledge of the occurrence, he did not go to Kumardubi O.P. or Chirkunda police station for giving information of the occurrence. Both the places are situated at a distance of within 2 Km from the place of occurrence. He also admits that after occurrence, he brought the injured Ramdhani Yadav to hospital on rickshaw and returned to his home at 4:30 PM. He also saw the police at the place of occurrence while returning, but did not tell about the occurrence. He has also reiterated that about 3:25 PM, he lifted the injured Ramdhani Yadav under injured condition from the place of occurrence with the help of 5-6 persons and went to nursing home. He also saw the police at the place of occurrence while returning, but did not tell about the occurrence. He has also reiterated that about 3:25 PM, he lifted the injured Ramdhani Yadav under injured condition from the place of occurrence with the help of 5-6 persons and went to nursing home. He also re-affirmed that Raju and Shashi Singh jointly gave 10-11 blows of dab to Ramdhani Yadav and Arbind Singh fired once on Ramdhani Yadav. He also states that Ramdhani fell down only after receiving bullet injury. The fire was shot from distance of 2½ - 3 ft. 16. P.W.-2 Hira Yadav has also corroborated the testimony of P.W.-1 and is eye-witness of the occurrence. On 31.03.1996 at about 3:15 P.M. he heard hulla and rush towards Maithan More Chowk near Hanuman Temple where he saw that Shashi Singh and Raju Singh were assaulting Ramdhani Yadav by dab and Arbind Singh shot fire upon Ramdhani Yadav. Thereafter, they fled away. He also assisting in lifting the injured to hospital. He further clarified that he heard hulla of Dilip, who has sustained injuries on his hand. He further admits that he has lodged a criminal case against Shashi Singh in the year 1994 and all the accused persons are related to each other as own brothers. He did not report the occurrence to the police and he has also not gone to hospital along with the injured Ramdhani Yadav. In his cross-examination, he reiterates that Ramdhani Yadav fell down only after receiving bullet injury prior to that he has been assaulted by dab. He is leader of labours. He has been cross-examined at length, but nothing has been elicited by defence to discredit his testimony. He has denied the suggestion of the defence that he has not seen the occurrence and being a member of Yadav community and labour leader, he is giving false evidence. 17. P.W.-3 Debnath Yadav is also an eye-witness of the occurrence. According to him, on 31.03.1996, at about 3:00 PM, he had gone to Chirkunda Tall by Truck No. BR-14N-8898 along with Swarath Yadav and Anwar Sheikh. When they reached near Kumardubi Hanuman Temple, then they saw Dilip Bose was running under injured condition and told that Shashi has assaulted. This witness further proceeded and saw Shashi Singh and Raju Singh were thrashing Ramdhani Yadav by dab. When they reached near Kumardubi Hanuman Temple, then they saw Dilip Bose was running under injured condition and told that Shashi has assaulted. This witness further proceeded and saw Shashi Singh and Raju Singh were thrashing Ramdhani Yadav by dab. Meanwhile, Arbind Singh shot bullet on Ramdhani Yadav, due to which, he fell down and accused persons fled away. He further deposed that he along with Swarath Yadav, Anwar Sheikh, Nandlal Yadav and Kanhai Yadav and Hira Yadav brought Ramdhani Yadav to the clinic of Dr. Das, thereafter to Dhanbad Medical Hospital but in course of treatment, Ramdhani died at about 8:00 PM. He also admits regarding the dispute for removal of hotel of accused persons from the land of the deceased. In cross-examination, this witness admits that just after the occurrence and till next day 10:00 AM, he did not disclose to the police about the occurrence. 18. P.W.-4 Dilip Kumar Bose is the informant-cum- injured in this case. According to him, he along with Ramdhani Yadav (since deceased) was going to Sanjay Hotel and when they reached near Kumardubi Maithan More, then road was jammed. He was pillion rider and Ramdhani was driving the scooter. Due to jam, scooter was stopped, meanwhile, 5-7 persons surrounded to them armed with lathi and dab. When this witness sustained injuries, he fled away from the scooter and the accused persons started assaulting to Ramdhani Yadav by dab and lathi. This witness is immediate eye witness of the occurrence, but has failed to disclose the name of any accused persons or to identify them. He has further stated that due to injury, he straight forward went to Taaldanga Hospital for his treatment. He further disclosed that there was land dispute between Shashi Singh and Ramdhani Yadav and he has heard in the hospital from the member of mob that Shashi Singh might have assaulted to Ramdhani Yadav. He has identified his signature on the fardbeyan. This witness has been declared hostile by prosecution and denied suggestion of prosecution that he has joined with the accused persons, as such giving false evidence, rather in his cross-examination by defence, he admits Ramdhani Yadav was running U.P. Hotel where this witness along with Debnath Yadav, Swarath Yadav and Anwar Sheikh were also residing, who were not present at the time of occurrence. Nandlal Yadav, Kanhai Yadav and Hira Yadav were also not seen at the time of occurrence. 19. P.W.-5 Swarath Yadav : This witness has also claimed to be eye witness of the occurrence. He was also behind the Scooter of Ramdhani Yadav at the time of occurrence and further stated that at about 3:00 PM near Maithan More, Bajrang Bali Temple, he saw that the Dilip Bose was running under injured condition raising alarm that Shashi has assaulted him. Thereafter, this witness alighted from tempo and saw that Arbind Singh was holding a revolver and Raju Singh and Shashi Singh were assaulting indiscriminately to Ramdhani Yadav by dab. Meanwhile, Arbind Singh shot bullet, due to which Ramdhani Yadav fell down and accused persons fled away. Ramdhani Yadav was brought to Das Nursing Home, thereafter to Dhanbad Central Hospital, where he died at about 8-8:30 PM. Dilip Bose got treatment at Chirkunda. According to him, the occurrence was also seen by Debnath Yadav, Anwar Sheikh, Kanhai Singh, Nandlal Yadav, Hira Yadav and others. He is brother of Ramdhani Yadav. This witness has been cross-examined at length, but nothing material has been elicited to discredit his aforesaid testimony. 20. P.W.-6 Dr. Shashi Bhushan Singh, Medical Officer, Chirkunda . He has deposed on 31.03.1996 at about 4:00 PM. He examined the injured Dilip Kumar Bose on police requisition and found following:- (i) Three incised wound 3” x 1/3” muscle deep 2” x 1/3” muscle deep and 3” x 1/8” muscle deep on right shoulder. (ii) Incised wound 2” x ½” muscle deep on the right wrist. (iii) Incised wound 3” x ½” muscle deep on the right forearm. All the injuries are simple in nature caused by sharp cutting instrument such as dab. The age of injuries within 12 hours. He has proved the injury report Exhibit-2. 21. P.W.-7 Dr. Binod Kumar : He has conducted autopsy of the dead body of the deceased Ramdhani Yadav, aged about 38 years on 01.04.1996 at about 11:00 P.M. The dead body was brought and identified by Hawaldar Fateh Mohammad Khan and found following ante mortem injuries:- (i) Incised wound 2” x ½” x bone deep anteroposterioty placed on the middle line of upper portion of occipital bone area. (ii) Incised wound 6” x 1” x bone deep on the middle portion of occipital bone. The wound was horizontally placed. (ii) Incised wound 6” x 1” x bone deep on the middle portion of occipital bone. The wound was horizontally placed. (iii) Incised wound 6” x 1 ½” x bone deep on the lower portion of occipital bone area. This wound was also horizontally placed. (iv) Incised wound 3” x 2” x muscle deep to bone deep on the right temporal region of head. Mastoid pinna almost completely cut at root and found attached with 1/5” stain of skin and soft tissues. (v) Three incised wound found obliquely placed in one line on the left scapular region 2” x 1” x muscle deep on the left end side 1” x 1/3” x muscle deep on the middle and 4” x 1 ¼” x muscle deep on the lower side which was extending to the posterior boarder of left exilla (Accipit). (vi) Incised wound 2” x 1/10 x skin deep on the upper interior aspect of left arm. (vii) Incised wound 3” x 1/8” to 1/8” to 1/10” x skin deep on outer posterial aspect of left elbow. (viii) Incised wound 1” x ¼” x muscle deep on the medial palmer side of right thumb at its root. (ix) Incised wound 1 ½” x ¾” x bone deep on the upper outer side of right leg. (x) Tattooing was seen on left side of neck, front of left shoulder and upper part front and left side of chest. Tattooing was more thick on the left side of neck. One stitched wound seen in front of middle of left clavicle bone. (xi) Punctured wound ¼” x 1” x cavity deep seen on the right side lower part front of chest at the anterior axillary line. Margins were lacerated and averted. On dissection :- Body of sternum obliquely fractured. Right side 3rd to 5th ribs at the cartilage broken. Achymosis was seen in the soft tissues in 2” to 2.1/2” wide starting from left mid clavicular region to injury no. 11. Soft tissues (inter costal muscle between 3rd to 5th ribs on right side costal cartridge region). Lower portion anterior aspect of right lung showed ½ diameter lacerated track from left rib clavical region to injury no. (ii) which indicate that it was caused by a fire arm projectile. Chambers of the heart were empty. Stomach contained about four gram partially digested rice, pulse and vegetable matter. Urinary bladder was empty. Lower portion anterior aspect of right lung showed ½ diameter lacerated track from left rib clavical region to injury no. (ii) which indicate that it was caused by a fire arm projectile. Chambers of the heart were empty. Stomach contained about four gram partially digested rice, pulse and vegetable matter. Urinary bladder was empty. All the internal organs were pale. Opinion:- The death was caused due to hemorrhage and shock as a result of aforementioned incised wounds caused by heavy sharp cutting weapon such as Dab. Tattooing were caused by a fire arm within tattooing range and the wound of entrance of the projectile (a bullet, was at the left mid clavicular region which was stitched by the treating surgeon and the wound of exits of the same bullet was injury no. 11). Injury No. 10 and 11 may be caused by fire at pistol. Time elapsed since death was between 12 to 18 hours before the time of P.M. examination. He has proved the Post-mortem report as Exhibit-3. In his cross-examination, this witness categorically stated that the weapon of offence was not produced before him. Hence, he has not mentioned specific name of any weapon used in causing the aforesaid injuries. 22. P.W.-8 S.I. Sivil Paswan is the I.O. of this case. According to his evidence, on 31.03.1996, he was working as an Officer-in-Charge of Kumardubi Beat House. On that day at about 16:05 P.M. he received message that some occurrence of assault has been taken place near the Maithan More and injured persons are admitted in Seva Sadan Nursing Home. He along with other police personnel proceeded for verification of the above occurrence and reached at Government Hospital, Chirkunda, where he recorded the statement of injured Dilip Kumar Bose (P.W.-4). He has proved the fardbeyan of the injured Dilip Kumar Bose as Exhibit-4. He also issued requisition for injury report of Dilip Kumar Bose, which is marked as Exhibit-5. He has further proved the formal FIR as Exhibit-6 and forwarding report for registration of case as Exhibit-7 & 7/1. The charge of investigation was undertaken by him. He visited to place of occurrence on 31.03.1996, which is situated at Maithan More near Bajrang Bali Temple and noticed huge blood at the place of occurrence. He seized blood stained earth from the place of occurrence and prepared seizure list. The charge of investigation was undertaken by him. He visited to place of occurrence on 31.03.1996, which is situated at Maithan More near Bajrang Bali Temple and noticed huge blood at the place of occurrence. He seized blood stained earth from the place of occurrence and prepared seizure list. In course of investigation, he has recorded statement of witnesses Anwar Sheikh, Debnath Yadav, Swarath Yadav, Nandlal Yadav, Kanhai Singh Yadav, Hira Yadav and other. Thereafter, at about 21:00 hours, he got information that one of the injured Ramdhani Yadav has been died in the Seraidhella Hospital. He deputed ASI S.N. Mandal for preparation of inquest report of the deceased. Certified copy of which has been marked as Exhibit-8 and dead body Challan as Exhibit-9. He received the post-mortem report of deceased and injury report of Dilip Kumar Bose and after conclusion of investigation submitted charge sheet against accused Shashi Singh, Arbind Singh and Raju Singh for the offence under Section 307 /302/379/324/34 of the I.P.C. and Section 27 of the Arms Act. The attention of this witness has been drawn towards the statement of injured Dilip Kumar Bose recorded under Section 161 of Cr.P.C., wherein Dilip Kumar Bose has specifically stated the name of the accused person, who assaulted him as well as to Ramdhani Yadav. In his cross-examination, he admits that the place of occurrence was inspected at about 18:45 hours, but seizure list, which was prepared on the spot in connection with blood-stained earth, is not with him. His attention has also been drawn towards para-27 of the case diary, wherein he has mentioned the time of death of Ramdhani Yadav on 31.03.1996 at about 5:50 PM, which is marked as Exhibit-A by the defence, which has been clarified by this witness by stating that from the details obtained from hospital, he has mentioned the facts at para-27 of the case diary. He further states that along with post-mortem report, police information was also submitted by Central Hospital, which shows that Malick Ram Jaiswal and Ram Prasad Yadav have admitted the Ramdhani Yadav to hospital and there was no mention about fire arm injury. He also admits that in the inquest report, the opinion of cause of death is sharp cutting weapon by bhujali and there is no mention of use of fire arm. He also admits that in the inquest report, the opinion of cause of death is sharp cutting weapon by bhujali and there is no mention of use of fire arm. He also admits that nearby the place of occurrence, there was a Medico Shop and other local shopkeepers were not interrogated. He also admits that during investigation, he did not saw injured Ramdhani Yadav or his dead body. The defence has drawn the attention of this witness only towards evidence of witness Debnath Yadav, who has not stated before him that when he reached the place of occurrence, Dilip Kumar Bose was running in injured condition. His attention has also been drawn towards the statement of Dilip Kumar Bose (informant), who had stated before him that he identified the accused Shashi Singh, who was armed with dab along with 5- 7 persons and assaulted to Ramdhani Yadav. Thereafter, he came to know that other accused persons were Arbind Singh and Raju Singh. He has denied the suggestion of defence that he has conducted table work investigation, which is defective in nature and without any sufficient evidence and ascertaining the truth, he has submitted charge sheet against innocent persons. 23. The defence has also examined two witnesses to prove the innocence of accused persons. 24. D.W.-1 Lalan Kumar Jha : He has stated that Hira Yadav is also doing labour Leadership in Weki Refectories. The letter written by Hira Yadav to the Court has been marked as Exhibit-B. In cross-examination, he has stated that he has come to depose in this case on the instruction of Ravi, brother of accused Arbind Yadav. He did not know whether accused Arbind Yadav has threatened Hira Lal for writing letter to the Court. 25. D.W.-2 Upendra Thakur : He is running a Barber Shop near the place of occurrence. On 31.03.1996 at about 3½ PM, he heard hulla near Stand. He saw Ramdhani Yadav in injured condition. He did not hear the names of assailant of Ramdhani Yadav. He had never seen the accused near the place of occurrence. In cross-examination, he has stated that he has not been summoned by the Court. He has deposed in this case only on the request of Ravi Singh, brother of Arbind Singh. He has denied the suggestion of prosecution that he has given false evidence under influence of accused. 26. He had never seen the accused near the place of occurrence. In cross-examination, he has stated that he has not been summoned by the Court. He has deposed in this case only on the request of Ravi Singh, brother of Arbind Singh. He has denied the suggestion of prosecution that he has given false evidence under influence of accused. 26. We have meticulously examined the oral as well as documentary evidence of the parties as discussed above. The star witness of this case appears to be informant Dilip Kumar Bose (P.W.-4), who at the time of alleged occurrence was accompanied with the deceased as pillion rider on the scooter, which was being driven by the deceased. The place of occurrence is alleged to be Maithon More near Tempo Stand, where the road was blocked / jammed. Hence, scooter was stopped on the road. There is clear cut allegation in the FIR that the appellant Shashi Singh armed with dab along with 5-6 unknown persons arrived and gave a dab blow on the neck of Ramdhani Yadav and other accused persons also assaulted to the deceased and in the course of incident Dilip Kumar Bose (informant) has also sustained injuries on his wrists and arm. In his evidence, during trial Dilip Kumar Bose, informant-cum-injured eye witness of the occurrence (P.W.-4) has failed to identify any of the miscreants including Shashi Singh, rather he states that 5-7 unknown persons surrounded them armed with lathi and dab. The accused persons assaulted Ramdhani Yadav by dab and lathi and when this witness also sustained injuries, he fled away from the place of occurrence and went to Taldanga Hospital for his treatment where his fardbeyan was recorded by police. This witness has been turned hostile as regards the identification of miscreants involved in commission of the crime. So far occurrence is concerned, it finds corroboration from the evidence of P.W.-6 Dr. Shashi Bhushan Singh, Medical Officer, Chirkunda, who has examined injured Dilip Kumar Bose (informant) and found three injuries on his right shoulder, right wrist and right forearm. All the injuries are found simple in nature caused by sharp cutting weapon such as dab. So far occurrence is concerned, it finds corroboration from the evidence of P.W.-6 Dr. Shashi Bhushan Singh, Medical Officer, Chirkunda, who has examined injured Dilip Kumar Bose (informant) and found three injuries on his right shoulder, right wrist and right forearm. All the injuries are found simple in nature caused by sharp cutting weapon such as dab. P.W.-4 in his cross-examination admits in clear terms that Ramdhani Yadav (deceased) was running U.P. Hotel where he along with Debnath Yadav, Swarath Yadav and Anwar Sheikh were residing but at the time of occurrence, Nandlal Yadav, Kanhai Yadav and Hira Yadav were also not seen. 27. It appears that P.W.-8 S.I. Sivil Paswan (I.O.), who has also recorded the fardbeyan (Exhibit-4) of Dilip Kumar Bose (P.W.-4) at the Government Hospital on the same day i.e. 31.03.1996 at about 16:05 PM and his re- statement also, wherein he has specifically stated the name of all the three accused persons, who assaulted him as well as to Ramdhani Yadav (deceased). The other eye-witnesses Nandlal Yadav (P.W.-1), Hira Yadav (P.W.-2), Debnath Yadav (P.W.-3), Swarath Yadav (P.W.-5) have also claimed to be eye-witness of the occurrence, although their presence at the relevant time has been denied by the star witness P.W.-4 Dilip Kumar Bose. But on that account alone credibility of aforesaid eye witnesses cannot be disputed. The evidence of each and every witness requires to be tested on touch stone of truthfulness as per their testimony as a whole. 28. On scrutinization of evidence of other eye-witnesses namely, P.W.-1 Nandlal Yadav, P.W.-2 Hira Yadav, P.W.-3 Deonath Yadav and P.W.-5 Swarath Yadav, we find that they have consistently corroborated the prosecution story as an eye-witness of the occurrence. Some of them also lifted the injured Ramdhani Yadav and brought him to Nursing Home of Dr. Das, thereafter to Dhanbad Medical Hospital, where he died in course of treatment. These witnesses have also proved the specific overt act of each of the appellants, particularly fire arm shot by appellant Arbind Singh, which also finds corroboration from the evidence of P.W.-7, who conducted autopsy on the dead body of the deceased. These witnesses remained intact in their cross-examination. The defence has attempted to disbelieve them only on account of not making any report to the police officers after the occurrence or disclosing the same to any other person. These witnesses remained intact in their cross-examination. The defence has attempted to disbelieve them only on account of not making any report to the police officers after the occurrence or disclosing the same to any other person. In this connection, it is observed that the FIR was already lodged on the basis of fardbeyan of another injured of the same occurrence namely, Dilip Kumar Bose (P.W.- 4). No material contradictions of the above eye-witnesses have been pointed out by the defence nor the attention of Investigating Officer has been drawn towards any contradictions appearing in the evidence of P.W.-1, P.W.-2, P.W.-3 & P.W.-5. P.W.-4 himself sustained injuries also finds corroboration from the evidence of P.W.-6, who has medically examined the injured Dilip Kumar Bose. 29. Learned counsel for the appellant has laid much emphasis on Exhibit-A i.e Para-27 of the case diary, wherein the Investigating Officer (P.W.-8) has admitted that from the details obtained from the Hospital that one Malick Ram Jaiswal and Ram Prasad Yadav have admitted the deceased Ramdhani Yadav in the Hospital. At that time, there was no mention about the firearm injury caused to the deceased. In the inquest report also firearm injury was not opined. 30. In our considered view above omission in the inquest report or at the time of admission of the injured person, the weapon used in causing injuries might not be exactly opined unless and until the physical and clinical examination is conducted by the concerned Doctor. The non-interrogation by the Investigating Officer with the said Malick Ram Jaiswal and Ram Prasad Yadav also can’t be fatal for the prosecution case merely because some of the witnesses, who might happen to be helpful in arriving at some concrete conclusion, but thereby the independent evidence of other witnesses cannot be materially affected. 31. It is stoutly argued by learned Amicus that all the eye- witnesses are interested witnesses; hence, their testimony cannot be believed. In this connection, it is trite that merely interestedness of witness is not sufficient to discard their testimony otherwise inspiring confidence. 31. It is stoutly argued by learned Amicus that all the eye- witnesses are interested witnesses; hence, their testimony cannot be believed. In this connection, it is trite that merely interestedness of witness is not sufficient to discard their testimony otherwise inspiring confidence. Here in this case, nothing has been brought on record that P.W.-1, P.W.-2, P.W.-3, P.W.-4 & P.W.-5, who are witnesses of occurrence have any animus against the appellants to get their conviction at any cost, rather their presence on the spot appears to be quite natural and their testimony has not been demolished through any contradiction or discrepancies drawing attention towards the statement under Section 161 of the Cr.P.C. at the time of examination of Investigating Officer (P.W.-8). Therefore, above point of argument cannot be legally sustained. Some minor discrepancies are bound to happen in the evidence of ocular witnesses. It cannot be expected from eye-witnesses to re-produce every minute and details of the occurrence with all exactitude. 32. Further argument of learned Amicus regarding non- examination of Anwar Sheikh and Kanhai Singh Yadav as an independent eye-witness of the occurrence also does not affect the prosecution story and testimony of other eye-witnesses. 33. In the instant case, the genesis and manner of occurrence clearly goes to show that all the appellants have acted in concerted manner and committed the offence in furtherance of their common intention as is discussed by the learned trial court at para-15 of the judgment. 34. Learned Amicus has pointed out that while holding guilt of the appellants and sentencing them with aid of Section 34 of the I.P.C. has not been resorted. 35. We are not convinced with the above argument in view of specific charges against the appellants for the offence under Section 302 read with Section 34 of the I.P.C. and discussion of evidence in the light of charges as well as findings recorded by the learned trial court, which clearly indicates to applicability of Section 34 of the I.P.C. against the appellants. 36. We have also given anxious consideration towards the defence evidence particularly Exhibit-A & B which are itself not sufficient to disprove the prosecution story. Similarly, Exhibit-C to G showing criminal cases and previous enmity also cannot be considered as tools for false implication of the appellants due to previous criminal cases. 37. 36. We have also given anxious consideration towards the defence evidence particularly Exhibit-A & B which are itself not sufficient to disprove the prosecution story. Similarly, Exhibit-C to G showing criminal cases and previous enmity also cannot be considered as tools for false implication of the appellants due to previous criminal cases. 37. In view of aforesaid discussion and reasons and thoughtful consideration of all the aspects of the case, we do not find any error of law in the impugned judgment of conviction and sentence of the appellants passed by the learned trial court. 38. We further do not find any legal substance in the point of argument raised on behalf of the appellants and no merits in this appeal. Accordingly, this appeal is dismissed 39. Appellants are on bail. They are directed to surrender within two months from the date of this judgment to undergo the sentence awarded to them, otherwise the learned trial court shall be at liberty to take all coercive steps for securing the attendance of the appellants and issue their conviction warrants for undergoing the sentence awarded to them. 40. Pending I.A., if any, stand disposed of. 41. We take this opportunity to appreciate the assistance rendered by Mr. Navneet Sahay, learned Amicus Curiae and direct the Member Secretary, High Court Legal Services Committee to extend the stipulated fees of Rs. 7,500/- to Mr. Navneet Sahay within a period of four weeks from the date of receipt / production of a copy of this order. 42. Office is directed to ensure that a copy of this order is served upon Member Secretary, High Court Legal Services Committee. 43. Let a copy of this judgment along with trial court record be sent back to the court concerned for information and needful.