Judgment O. N. Asthana, J. 1. This is the criminal appeal against the judgment and order of 2nd Additional Sessions judge, Vaishali at Hajipur dated 30th september, 1994 in Sessions trial No.47 of 1984/18 of 1987 (State versus lalu Sah and another) where the learned Additional Sessions Judge held both these accused-appellants guilty for the offence punishable under Sec.302 read with Section 34, I. P. C. and awarded the sentence of life imprisonment and a fine of rs.1,000/- (one thousand), and in default of fine a further sentence of three months, rigorous imprisonment. 2. Briefly the prosecution case is that on 19th April, 1982 at 6.30 P. M. In the evening Rameshwar Mahto went to the house of the accused lalu Sah @ Rajendra Sah to take back his chuhadani (mouse trap)which he gave to Laiu Sah three days back; the accused Lalu Sah did not return and started abusing rameshwar; while Rameshwar was returning to his house accused Lalu sah armed with musal (heavy wooden log for pounding the rice)and his brother the accused Gopal sha armed with lathi arrived there and surrounded Rameshwar near pokhara (small pond) on eastern Bhinda (mud-mound or small height) opposite in the east of Bhatauli Math, and on exhortation given by the accused Lalu Sah both these accused-appellants assaulted Rameshwar, and the accused Lalu Sah assaulted with the iron portion of the musal on the head of Rameshwar and thereby rameshwar sustained head injuries and blood also oozed out and rameshwar became unconscious and the other accused Gopal Sah gave the lathi blow on the back of rameshwar; a couple of villagemen assembled there besides the son of, rameshwar named Dewari Mahto p. W.7 ; and Dewari Mahto successfully snatched the musal from the hand of the accused Lalu Sah and it was produced at the Police Station while Dewari Mahto went there. 3. Along with unconscious father rameshwar the informant son Dewari mahto arrived at the Area Police out-post and gave his report about the occurrence at 8 P. M. same day. This fardbeyan of the informant is exhibit-1. The injured Rameshwar mahto was taken to the nearby Lalganj state Dispensary where the doctor bandaged the head injury and advised to take the injured Rameshwar Mahto to the District Hospital. This fardbeyan of the informant is exhibit-1. The injured Rameshwar mahto was taken to the nearby Lalganj state Dispensary where the doctor bandaged the head injury and advised to take the injured Rameshwar Mahto to the District Hospital. Injured Rameshwar Mahto was brought to the District Hospital, hajipur and the Doctor finding the injury to be serious referred the case of the Patna Medical College. The injured Rameshwar Mahto was brought to the Patna Medical College for operation and the treatment etc. but Rameshwar Mahto died next day on 20th April, 1982 while he remained unconscious all along. 4. The prosecution has examined thirteen witnesses. Further the Court examined Saddique Ali, Hospital Assistant C. W.1 for the formal proof of the post-mortem report Exhibit-4, as the Medical College Hospital Doctor died. 5. The prosecution witnesses amarnath Mahto P. W.3, Dwarika das P. W.5, Satya Narain Mahto P. W.6 and Dewari Mahto P. W.7 are the witnesses of fact. Smt. Khakhiya Devi p. W.11 has been tendered by the prosecution. The other witnesses are of formal nature. Satya Narain mahto P. W.6 stated in the court that he was at a distance and hearing the hulla (loud noise) at the place of occurrence he arrived there, and he could simply see that some persons were running away at a distance, and that Rameshwar was lying unconscious at the place of occurrence near the pond on eastern bhinda with injuries on his head. 6. Amar Nath Mahto P. W.3 stated on oath that he was going that way to purchase soap from the shop of Lakhpati Shah and he heard hulla coming from the eastern side of the Math and he went there and he saw that the accused Gopal Sah and Lalu Sah were quarreling with rameshwar Mahto relating the return of chuhadani and the accused Gopal sah assaulted with his danda and the other accused Lalu Shah assaulted with musal on the head of Rameshwar and Rameshwar fell down, and dewari Mahto, Satya Narain Mahto, dwarika Das and others were there, and Dewari Mahto with the help of ram Anup and others snatched away musal from the hands of accused lalu Sah and the accused persons run away from the place of occurrence, and the injured Rameshwar was taken to the Police out-post and hospital in conscious condition. This witness stated further that he put his signature on the seizure list (Exhibit-2) when the Investigation Officer came to the village same night, and he also gave his statement to the Investigation Officer. Learned Advocate for the appellants urged that this witness did not tell the Investigation officer that he was going to purchase soap and that he could not tell specifically whether the Investigation officer prepared seizure list or not and thus the deposition of this witness be not believed. Regarding of the statement by the Investigation officer is a preparation of the note of the relevant statement for the purpose if the actual occurrence has been seen by the witnesses or what part of the occurrence was seen by this witness and because this witness did not tell the Investigation Officer and the Investigation Officer did not write that this witness was going to purchase the soap does not affect the credibility of this witness P. W.3. 7. The other witness of fact dwarika Das P. W, 5 is a Pujari in bhatauli Math. This Math is situate ten yards or about in the west of the place of occurrence. Obviously this witness Dwarika Das would have been at the Math in the evening hours. This witness Dwarika Das has stated on oath that he heard the exchange of words between these two accused persons Lalu Sah and Gopal sah on one side and Rameshwar on the other side and that accused Lalu sah assaulted with musal on the head of Rameshwar and the accused gopal Sah assaulted with lathi on the waist of Rameshwar and Rameshwar fell down there at the place of occurrence in unconscious state. Learned Advocate for the appellants urged that this witness stated that rameshwar was lash (dead-body) at the place of occurrence and it is, therefore, doubtful if he saw the occurrence. Further learned counsel for the appellants pointed out that this witness P. W.5 could not tell in cross-examination whether the blood had fallen down on the cot on which the injured Rameshwar was placed. In the village in common parlance lash or unconscious body are equated. Further the observation if the blood from the head injury oozed and fell down on the cot to make it red was not the expected observation by a witness like Dwarika das P. W.5. In the village in common parlance lash or unconscious body are equated. Further the observation if the blood from the head injury oozed and fell down on the cot to make it red was not the expected observation by a witness like Dwarika das P. W.5. Only the son who remained all along with the injured up to the Hospital could notice this. Lastly the learned Advocate for the appellants urged that this witness dwarika Das P. W.5 is a biradari man of the informant and his late father Rameshwar and thus his deposition be taken as biastlone and be not taken into consideration. Now this elderly man Dwarika Das aged 75 years became Pujari of the temple. He is not closely related by the blood or by marriage with the informant and his family. There is nothing to doubt the deposition of dwarika Das, P. W.5. When he made the deposition in Court of Session after eight years he told the court that his vision has become weak. In the evening at 6.30 P. M. in the middle of April there remains sunlight in Bihar. Obviously there was enough light for Dwarika Das to see the occurrence where these accused-appellants made the assault on rameshwar. 8. Dewari Mahto P. W.7 is the informant son of the deceased rameshwar. This witness Dewari mahto stated on oath that he heard the loud voice of the exchange of words of these accused-appellants and his father while he was at his house situate at a few steps in the north west of the Math and he arrived at the place of occurrence in the east of the pond. This witness Dewari mahto stated on oath that he heard the loud voice of the exchange of words of these accused-appellants and his father while he was at his house situate at a few steps in the north west of the Math and he arrived at the place of occurrence in the east of the pond. This witness stated on oath that he saw that Khakhiya devi-sister of the accused-appellants provided musal and lathi to these accused-appellants and the accused appellant Lalu Sah assaulted with musal on the head of his father rameshwar and the other accused gopal Sah assaulted with lathi on the back of his father and his father rameshwar became unconscious and fell down at the place of occurrence in the north-east Bhinda corner of the pond and he snatched musal from the hand of the accused Lalu sah and thereafter he brought his injured father on the cot to the nearby police Out-post and he brought that musal to the Police Out-post and handed it over to the Police Officer making the statement relating the occurrence and thus lodged this first information report. Soon he brought his injured father to the nearby Lalganj state Dispensary where the head injury of his father was bandaged and lie was directed by the Doctor to take his injured father for treatment to the District Hospital, hajipur. The Doctor of the District hospital directed him to take his injured father immediately to Patna medical College Hospital for the treatment, and he brought his injured father on jeep taxi to the Medical college Hospital and his father remained unconsciously all along and died in the Medical College and hospital in unconscious state. 9. Learned Advocate for the appellants pointed out that this informant P. W.7 did not mention in the first information report that he was at his house and he came hearing the loud exchange of words, and he also did not mention in the first information report that the sister of the accused-appellants handed over musal and lathis to the accused-appellants and this omission makes the prosecution case doubtful. These are not material facts of the prosecution case, and their omission in the first information report does not discredit the prosecution case in any way. These are not material facts of the prosecution case, and their omission in the first information report does not discredit the prosecution case in any way. Learned Advocate for the appellants pointed out that this witness has stated at one place in the cross-examination that night was dark and thus it was dark when the occurrence took place. This inference is not possible. All the prosecution witnesses have narrated specifically on oath the time of the occurrence to be 6.30 p. M. in the evening. Further this time also finds mention in the first information report. We also find that this witness-informant Dewari Mahto p. W.7 has stated specifically in paragraph 64 in cross-examination that sun was going to set when the occurrence took place. Obviously there was light when this occurrence took place. 10. In defence the accused-appellants examined Binda Tiwary D. W.1. He is a formal witness. He has proved the filing of the complaint by these accused-appellants against suhag Singh and Bir Chandra Das (P. W.8 from the side of the prosecution ). Further the accused-appellants have filed the documents of the case before the Magistrate which shows that Birjan Das and Bir Chandra Das were on litigating terms with these accused-appellants. Birjan Das is the father of Ram Anup Das P. W.4. This witness Ram Anup Das has been declared hostile by the prosecution. Bir Chandra Das P. W.8 is only a formal witness and he simply proved the seizure list. Thus no enmity has been shown to be there between these accused-appellants and the witnesses of fact Amar Nath mahto P. W.3, Dwarika Das P. W.5 and Dewari Mahto P. W.7. 11. Learned Advocate for the accused-appellants urged that there has been delay in the first information report, the place of occurrence is not established and the manner of occurrence has not been established; that the circumstances are to consistent with the prosecution case the musal has not been produced; the blood from the alleged place of occurrence and the blood-stained musal have not been sent to the chemical analyst for his report if it was human blood; that the prosecution has not examined the doctor and has not examined the Investigation officer in the case; and that the independent witnesses have not been examined by the prosecution and thus the prosecution case seems much doubtful. 12. 12. According to the prosecution the occurrence took place in the evening at 6.30 P. M. on 19th April, 1982. Within half an hour the report was lodged relating this occurrence at the Police Out-post. The formal first information report was recorded same night at 11 P. M. on 19th April, 1982 at the Area Police Station situate eight kilometres away. Obviously the report has been lodged promptly at the Police Station. Nothing has been brought on record by way of suggestion or otherwise to show if the Investigation Officer was in any way hostile to these accused-appellants. Learned Advocate for the appellants pointed out that the records show that the first information report was sent from the Police station next day on 20th April, 1982 and it was seen by the Chief Judicial magistrate on 21st April, 1982 while the Court and the office of the Chief judicial Magistrate was ten kilometres away from the Police Station. Further the learned Advocate for the appellants made the reference to the decisions reported in AIR1976 supreme Court 2423, 1990 P. L. J. R.378, 1992 P. L. J. R.219 and 1993 Cr. L. J.2578 and urged that in these cases the delay of more than twelve hours, and two days to three days were considered to be fatal to the prosecution case. It is always a question of fact if there was any deliberate delay and this delay and had been utilised or would be really utilised for concocting a false case. The mere fact in itself that the Chief judicial Magistrate had seen this first information report on 21st April while the occurrence took place in the evening on 19th April in itself alone is no ground to hold that the prosecution case is a concocted version. Here the first information report relating the case was lodged earliest at the nearby Police Outpost within one and half hour and in the routine course it was taken down formally in the records of the Police station situate eight kilometres away within three hours at 11 P. M. on the same night. The delay in despatch or in seeing the first information report by the Chief Judicial Magistrate does not affect the correctness of the first information report. 13. The delay in despatch or in seeing the first information report by the Chief Judicial Magistrate does not affect the correctness of the first information report. 13. Relating the place of occurrence the learned Advocate for the appellants urged that the deceased went to the house of the accused-appellants and this house is at a distance from the place of occurrence, and some exchange of words might have taken place there at the house of the accused-appellants and that the occurrence would not have taken place near the pond, and the prosecution has not made the efforts to establish the place of occurrence by sending the blood-stained mud if any to the chemical analyst. The deposition of the prosecution witness amar Nath Mahto P. W.3 shows that the house of the accused-appellants was four toggles (hundred feet) in the east of this place of occurrence. The deposition of Dwarika Das P. W.5 shows that the Math is situate fifteen feet in the west of this place of occurrence. The deposition of the informant P. W.7 shows that this house is situate in the south-west of the math at a distance of three hundred to four hundred feet and the house of the accused-appellants is situate at a distance of about one thousand feet from the house of the informant. Thus the place of occurrence, math, the house of the accused-appellants and the house of the informant are nearby. The distance of the house of the accused-appellants from the place of occurrence was not so far as to doubt the probability of this occurrence. 14. It appears from the evidence of the prosecution witnesses that the blood-stained mud was collected by the Investigation Officer though dwarika Das P. W.5 stated that he saw that the accused Lalu Sah made the efforts to erase the blood drops rubbing them by his feet. It was a head injury. The head-injury does not bleed much outside. But some drops would have fallen the place of occurrence. Learned Advocate for the appellants has drawn attention to the decisions reported in 1976 Supreme court 2263 and 1992 B. L. J.215 and contended that the non-examination of the blood-stained mud and weapon of assaults create doubt in the prosecution case. Such inference were to be drawn where there are no eye-witness to the occurrence or if eye-witness of the occurrence are of doubtful character. Such inference were to be drawn where there are no eye-witness to the occurrence or if eye-witness of the occurrence are of doubtful character. Here we find that the depositions of the eye-witnesses amar Nath Mahto and Dwarika Das are trustworthy. In view of the eyewitness account of the occurrence by the independent and reliable prosecution witnesses the absence of the report of the chemical examiner does not go to create any doubt in the prosecution case. 15. Learned Advocate for the appellants pointed out the circumstances why the persons who arrived there did not rush to snatch musal and lathi before the assaults, and why the prosecution witnesses did not get hold of these accused-appellants after the assaults. Usually even the persons who witnesses the occurrence are unconcerned for the affairs of others. Further the people act and react differently in different situations. It is likely that the persons who assembled nearly or at a distance could not visualise that the accused persons would be really making the assaults or they were a bit unconcerned about it; and they did not happen to be bold enough to rush forward and to arrest the accused persons at the spot. These alleged circumstances do not create any doubt in the prosecution case. 16. The doctor who performed the post-mortem died and thus he could not be examined in the trial. Learned Advocate for the appellants referred to a decision reported in 1979 Cr. L. J. (NOC) 19 and suggested that the prosecution should have examined another Doctor in the case, which should have given an opportunity to the accused-appellants and their advocate to put the question relating the seriousness of the assault and the seriousness of the injuries, etc. Here the witnesses of fact established that the physical assault was made on the head by the accused-appellant Lalu Sah by musal and the injured Rameshwar became unconscious at the spot where the fell down. Obviously the head injury was the cause of unconsciousness of this injured Rameshwar and the depositions of the prosecution witnesses established that the injured rameshwar did not regain consciousness, and rameshwar died in unconscious state next day and he remained unconscious all along till he reached the moment of his death. 17. Obviously the head injury was the cause of unconsciousness of this injured Rameshwar and the depositions of the prosecution witnesses established that the injured rameshwar did not regain consciousness, and rameshwar died in unconscious state next day and he remained unconscious all along till he reached the moment of his death. 17. Learned Advocate for the appellants urged that the Investigation officer has not been examined by the prosecution, and made the reference to the decision reported in 1987 B. B. C. J.340. The non-examination of the Investigating Officer in itself is no ground to presume that the prosecution case is doubtful or that prejudice has been caused to the accused in the trial. Here we find that all the alleged contradictions in the statement of the prosecution witnesses on oath as compared to the statements of these witnesses recorded by the Investigation Officer under Sec.161, Cr. PC, had been considered by the trial judge and the trial judge found that there were no material contradictions as to doubt the testimony of the prosecution witnesses. Besides it the learned Advocate for the accused-appellants has not drawn our attention to any other material fact before us so as to assume that any prejudice has been caused to the accused- appellants due to non-examination of the Investigation Officer. 18. Learned Advocate for the appellants urged that the deposition of Dewari Mahto P. W.7 shows that satya Narain Dwarika, Amar Nath, anup Das, Raghunath Singh happened to reach at the place of occurrence and they have not been examined by the prosecution. The prosecution has examined Dwarika das P. W.5. The prosecution has examined other witness Ram Anup das. He has been declared hostile by the prosecution. Raghunath Singh (P. W.2) has also been examined by the prosecution. He has been declared hostile. Amar Nath Mahto p. W.3 has been examined by the prosecution. Thus, it appears that the prosecution made all bona fide efforts to examine the prosecution witnesses who arrived at the scene of the occurrence. The witnesses who saw the whole occurrence have deposed about the occurrence. Those who reached late they deposed on oath whatever they saw. There is nothing to show that any independent witnesses has been deliberately suppressed by the prosecution. The eye-witnesses who saw the whole occurrence have narrated the prosecution case on oath as discussed above. 19. The witnesses who saw the whole occurrence have deposed about the occurrence. Those who reached late they deposed on oath whatever they saw. There is nothing to show that any independent witnesses has been deliberately suppressed by the prosecution. The eye-witnesses who saw the whole occurrence have narrated the prosecution case on oath as discussed above. 19. Lastly learned Advocate for the appellants urged that considering the facts and circumstances of the case these accused-appellants may not be held guilty for the commission of murder. Advocate for the accused-appellants brought to the notice that no previous enmity or ill-will was there between the accused- appellants and the deceased; and that the deposition of the prosecution witnesses show that the quarrel and the loud exchange of words were there between these accused-appellants on the one side and Rameshwar on the other side at the place of occurrence; that one assault only was caused by each of the accused-appellants and that musal with which fatal assault was caused on head had not been produced before the Court for the objective assessment as a weapon of assault, what was the size, width and weight and if really there was material iron ring at the edge of the musal, and considering all these facts it be safely inferred that these accused-appellants had no imminently to cause the death of Rameshwar and nor the accused-appellants had the knowledge that they were causing such imminently dangerous assault as to put the end of the life of rameshwar. 20. Considering the facts and circumstances of the case, We find that these accused-appellants had no intention to commit the murder of rameshwar and they were also not aware in all probability that they were going to cause an imminently dangerous injury to put an end to the life of Rameshwar. 21. Accused Gopal Sah was armed with lathi while his brother lalu Sah was armed with musal and they surrounded Rameshwar, and thus Gopal Sah was fully aware that his brother Lalu Sah was likely to cause the fatal assault on Rameshwar. Gopal Sah also assaulted with his lathi on Rameshwar. 22. Accordingly we modify the conviction of these accused-appellants from the offence under Sec.302 read with Sec.34 I. P. C. to Section 304 Part II read with Sec.34 i. P. C. We award the sentence of seven years, rigorous imprisonment to the accused-appellants. Gopal Sah also assaulted with his lathi on Rameshwar. 22. Accordingly we modify the conviction of these accused-appellants from the offence under Sec.302 read with Sec.34 I. P. C. to Section 304 Part II read with Sec.34 i. P. C. We award the sentence of seven years, rigorous imprisonment to the accused-appellants. The sentence of life imprisonment and a fine of rupees one thousand awarded by the trial judge stand modified in the manner indicated above. 23. In the result the appeal is dismissed with the above modification, of sentence. 24. Bail bonds of the accused-appellant Gopal Sah is hereby cancelled. Accused-appellant Gopal Sah shall be surrendering in the court of the trial judge to undergo the sentence. Appeal dismissed.