Judgment S.N.Pathak, J. 1. The aforesaid Criminal Appeal and Criminal Revision have been heard analogous, as both of them have been preferred against the common judgment dated 23rd September, 1999 passed by the 4th Additional Sessions Judge, Bhagalpur, in Sessions Trial No. 411 of 1994. Appellant Ram Udit Choudhary was convicted for the offence u/s. 304 (Part II) Indian Penal Code, 1860 and was sentenced to undergo R.I. for 5 years. 2. First, I shall take up the aforesaid appeal. Sessions Trial No. 41 of 1994 originated on the fardbeyan of P.W. 1 (Ext-1) on the allegations contained therein that on 5.12.1992 at about 8.00 p.m., the informants brother Smriti Narayan Choudhary (the deceased) was sitting at his Darwaja on a cot and his licensed rifle was kept by his side. The informant herself was cooking food inside the house. On hearing alarm, she came out of the house and saw that her brother was being assaulted. At the Darwaja, there was one Bal Krishna Choudhary (P.W. 3), Indu Devi (P.W. 2), Narayan Choudhary (P.W. 6) and Pankaj Choudhary (P.W. 7), the convict Ram Udit Choudhary took out lathi from the hand of Anuj Choudhary (acquitted) and started assaulting the brother of the informant who fell unconscious and fell down on the cot itself. The accused persons who were accompanied by one Shaligram Choudhary as well fled away, after making firing from the rifle. The deceased was carried first to Narayanpur for treatment where one Dr. Sahni referred the deceased to P.M.C.H., Patna, where he was carried on the same day, but he succumbed to his injuries on 6th December, 1992 at 12.00 noon. The informant became busy in cremation of his brother etc. So the informant filed a written report at the P.S. on 8th December, 1992 at 10.00 a.m. The defence of the accused-appellant that developed through the cross-examination of the P.Ws. is that the deceased was a man of doubtful character and he was having amorous liaison with the wife of one Mohan Choudhary and he was chastised by the latter. On the day of occurrence, he was under intoxication and was moving with rifle in search of Mohan Choudhary and villagers attempted to disarm him and in course of scuffle, he sustained injury by falling on a stone slab/piece. On the day of occurrence, he was under intoxication and was moving with rifle in search of Mohan Choudhary and villagers attempted to disarm him and in course of scuffle, he sustained injury by falling on a stone slab/piece. A further story was developed to the effect near the house of Mukhiya, when Mohan Choudhary was sighted by the deceased who climbed a wall and wanted to shoot at Mohan Choudhary but missed his target, and fell down from the wall and received injury on falling on a stone slab. 3. The trial Court, on the basis of the evidence of nine witnesses, held the accused-appellant guilty, as stated above, and convicted and sentenced him. Out of the aforesaid witnesses, P.W. 4 Nawal Kishore Choudhary and P.W. 5 Dhananjay Kumar Choudhary were tendered. P.W.9 was a formal witness. He brought on the record the P.M. Report (Ext. 4). The Doctor who held the P.M. Examination was not examined because he had gone out of India, as it was stated by P.W. 9. Out of the rest of the P.Ws., P.W. 1 Manjushree Jha was the informant, P.W. 2 Indu Devi, P.W. 3 Bal Krishna Choudhary, P.W. 6 Sri Narain Choudhary and P.W. 7 Pankaj Kumar Choudhary, all were present at the spot when the deceased was sitting on a cot. So all these witnesses, including the informant, claimed to be the eye-witnesses to the occurrence. As per their evidence combined with statement in the written-report (Ext-1), the story of occurrence, in substance, was that three persons, namely, Ram Udit Choudhary, Anuj Choudhary and Shaligram Choudhary approached the Darwaja of the informant, abusing the deceased. Anuj Choudhary was having lathi in his hand and Ram Udit Choudhary and Shaligram Choudhary were unarmed. However, P.W. 3 added that Ram Udit Choudhary was having a pistol in nis hand and he handed it over to Anuj Choudhary and took the lathi from the hand of Anup Choudhary. Thereafter, Ram Udit Choudhary dealt two lathi blows on the head of the deceased. Before that Shaligram Choudhary had picked up the rifle kept by the side of the deceased. After assaulting the deceased, all the three accused persons fled away and in course of flight, they fired from the rifle. Villagers chased them on account of, which the rifle was thrown and it was brought back by Bal Krishna Choudhary. 4. Before that Shaligram Choudhary had picked up the rifle kept by the side of the deceased. After assaulting the deceased, all the three accused persons fled away and in course of flight, they fired from the rifle. Villagers chased them on account of, which the rifle was thrown and it was brought back by Bal Krishna Choudhary. 4. The learned Sessions Judge, on the basis of aforesaid evidence, held that the prosecution had proved its case beyond all reasonable doubts, but since the intention of the assailant Ram Udit Choudhary for murder was not proved, he was exonerated of the charge u/s. 302, Indian Penal Code, 1860 and was held guilty under Sec. 304 (Part II), Indian Penal Code, 1860 because the Court held that it was, at least, in the knowledge of the assailant that the injury which he was inflicting upon the deceased could result in his death in the ordinary course of nature. Since no appeal has been filed seeking enhancement of sentence or annulling the findings of facts by the Court, I think this appeal filed by the convict is confined to challenging the order of conviction. 5. It was submitted before me by the appellants lawyer that the non-examination of the Doctor at Narayanpur was fatal to the veracity of the prosecution case as also in proving the fact that the deceased had received injuries in the manner as alleged by the prosecution. It was next submitted that non-examination of the Doctor who held the autopsy was also a fatal infirmity in the prosecution case in proving the death of the deceased on account of injuries, he allegedly sustained. It was still further submitted that the recovery of rifle of the deceased from near the house of the Mukhiya Diwakar Choudhary, also raised doubt regarding the alleged occurrence at the Darwaja of the deceased, instead it supported the defence version that the deceased sustained injury near the house of the Mukhiya by falling on a stone slab. Non-examination of the parents of the deceased as also the son of the informants sister as also the neighbours of the deceased by the I.O. or in Court, during the course of trial, were further doubtful, circumstances which remained unexplained. The delay in reporting the case to the police by three days was an inordinate delay and, therefore, it also cast serious doubt on the prosecution case. 6. The delay in reporting the case to the police by three days was an inordinate delay and, therefore, it also cast serious doubt on the prosecution case. 6. So far as the interestedness of the witnesses is concerned, of course, this circumstances of the case is very much present, but interestedness in itself cannot be a good ground for disbelieving the evidence of the prosecution. Evidence, as it is on the record, is to be considered and from the same it has to be gathered whether the prosecution proved its case, unless it is otherwise disbelieved or is shaken by other circumstances on the record. The evidence of prosecution is not to be approached from the angle of what it ought to be. Of course, non-examination of the neighbours or the parents of the deceased was, prima facie, raising some doubt, but that was the negligence committed by the I.O. of the case and, so the informants case cannot suffer on the ground of slip shod investigation done by the I.O.-It is to be noted that the alleged occurrence took place at 8.00 p.m. on 5th December, 1992 and the deceased was immediately carried to Narayanpur from where he was referred to P.M.C.H., Patna and on the same night, he was brought to P.M.C.H., Patna. A Police Officer from Pirbahore P.S. was sent to P.M.C.H. and the statement of Bal Krishna Choudhary was recorded on which his signature was exhibited (Ext-2). So when the informant returned to her village taking the dead body of the deceased, of course, the family members would be engaged in cremation etc. and when Bal Krishna Choudhary had given his statement at P.M.C.H., Patna, the family members would be content in reporting the occurrence to the Police at the earliest opportunity available and so there was no question of making a further report on 6th or 7th December, 1992. However, they might have learnt that no case was registered and then there was an occasion to lodge a written report at Birpur which gave rise to the present F.I.R. (Ext. 3). In a case of serious injury upon the victim, the family members would be in anxiety to save the life of the injured first and, therefore, any omission in reporting the matter to the police by way of first option is ruled out. 3). In a case of serious injury upon the victim, the family members would be in anxiety to save the life of the injured first and, therefore, any omission in reporting the matter to the police by way of first option is ruled out. So the circumstances of the case will explain the delay in lodging the case before the police. So far the contention of the appellants lawyer that the rifle of the deceased was found abandoned near the house of the Mukhiya and so it gave a probability of belying the story of actual place of occurrence, I am of the opinion that the suggestion thrown to the P.Ws. was denied and there was no evidence on behalf of accused. So this defence version in itself would not render the prosecution evidence or its case unreliable. I shall make further comments upon the throwing of rifle by the accused and the same being recovered from near the house of Mukhiya at a later stage in different context, while taking up the revision. So far non-examination of Dr. Sohani who referred the victim to P.M.C.H., there is no case of the prosecution that Dr. Sahni had administered any first aid to the victim or that he had treated him. So his non-examination was not fatal to the prosecution case. Of course, it might have added a further convicting circumstance to the prosecution story, but his non-examination would not render the same unbelievable. I am of the opinion that the trial Court rightly held the accused-appellant guilty. So far as his conviction u/s. 304 (Part-II), I.P.S. is concerned, here also, I find no reason to disagree with the finding of the trial Court, because, admittedly, two Lathi blows were hurled without there being any intervening circumstance. So the intention on the part of the appellant to cause murderous assault upon the deceased was, of course, ruled out. But however, it must be in his knowledge that the injuries which he was inflicting on the head of the deceased, might result in his death in the ordinary course of nature. So he was rightly convicted u/s. 304 (Part II), Indian Penal Code, 1860 The sentence was only of five years which was also not stringent as to invite any interference from this Court. 7. In the result, this appeal is dismissed. 8. Now, I shall take up the revision for consideration. So he was rightly convicted u/s. 304 (Part II), Indian Penal Code, 1860 The sentence was only of five years which was also not stringent as to invite any interference from this Court. 7. In the result, this appeal is dismissed. 8. Now, I shall take up the revision for consideration. This revision has been filed by Manjushree Jha, the informant of the case, against accused Anuj Choudhary and Shaligram Choudhary who were acquitted by the impugned judgment. These two persons along with convicted accused Ram Udit Choudhary (appellant of Cr. Appeal No. 264/99) were charged under Secs. 302/34, Indian Penal Code, 1860 The Sessions Judge, on the basis of evidence, held that no overt act was committed by Anuj Choudhary or Shaligram Choudhary (the O.P. in this Revision) and, hence common intention to commit murder of the deceased was not proved. It was submitted before me by the revisionists lawyer with all force at his command and with vehemence that the opinion of the Sessions Judge, regarding absence of common intention of all the three accused, who had conjointly appeared at the house of the deceased, was erroneous and not warranted by the circumstances on the record. It was submitted that Shaligram Choudhary had picked up the rifle of the deceased, the moment the three accused reached there in order to facilitate the crime. So Shaligram Choudhary had, of course, committed overt act. Anuj Choudhary was having a lathi in his hand and he handed it over to Ram Udit Choudhary (convict). So, Anuj Choudhary had also committed overt act. It was next submitted by the revisionists lawyer that as per the evidence of P.W. 3 Bal Krishna Choudhary, the convict Ram Udit was having a pistol in his hand and Shaligram had picked up the rifle of the deceased, but firearms were not used by the deceased so that their intention to kill the deceased need not be exposed. I shall comment upon this contention of the revisionists lawyer hereinbelow but, however, at this stage, the submission that Anuj and Shaligram had committed overt act in order to share their common intention with the convict, is for consideration. I shall comment upon this contention of the revisionists lawyer hereinbelow but, however, at this stage, the submission that Anuj and Shaligram had committed overt act in order to share their common intention with the convict, is for consideration. In this connection, it is to be noted that as per the admitted evidence, Ram Anuj who was having lathi in his hand did not himself hand over the lathi to Ram Udit Choudhary nor did he utter any word, instigating the convict to assault the deceased with lathi. It was rather Ram Udit himself who took the Lafft/from the hand of Anuj and handed over his pistol to anuj, if at all he was having a pistol in his hand. So the evidence does not point to an overt act on the part of Anuj Choudhary. So far as Shaligram Choudhary is concerned, it was attributed to him that he had picked up the rifle of the deceased. The question is whether this part of the story can be accepted without a pinch of salt. The evidence is that the accused persons had come to the house of the deceased abusing him. Besides the same, at the Darwaja of the deceased, there were Bal Krishna Choudhary, Indu Devi, Narayan Choudhary and Pankaj Choudhary. In such a circumstance, I do not think the deceased, who was having his rifle by his own side, would not pick up his rifle in order to save himself and would rather allow his rifle to be picked up by Shaligram Choudhary, himself being rendered defenceless. Moreover, when there were already three male persons besides the deceased himself, it is not understandable how they will allow Shaligram Choudhary to pick up the rifle of the deceased in a smooth and facile manner, without any protest either from the deceased or even from these persons. If it is to be believed that Ram Udit Choudhary was having a pistol in his hand and other accused were having lathi a natural apprehension in the mind of the deceased and others present at the door would arise and, therefore, I do not think they will allow Shaligram Choudhary to pick up the rifle of the deceased, in the manner as alleged by the prosecution. This doubtful circumstance apart there is another doubtful circumstance. This doubtful circumstance apart there is another doubtful circumstance. Evidence of the prosecution is that the rifle of the deceased was thrown near the house of the Mukhiya and then it was picked back by Bal Krishna Choudhary. The accused-persons had fired from this rifle while flying away. There is no case of the prosecution that any empty cartridge (Khokha) was scattered at the P.O. or that the rifle was shown to the I.O. or it was seized by him. In such a circumstance, the story regarding the rifle does not appear to be convincing. So the overt act against Shaligram Choudhary regarding picking up of the rifle does not appear to be convincing. Evidently, there was no evidence on the record that the three accused persons had assembled together at any point of time before the alleged occurrence and they had planned and conspired among themselves to execute the plan of murder of the deceased. So meeting of minds among the three accused was not proved. The alleged overt acts which have been pointed out, in the submissions of the revisionists lawyer, also do not appear to have been established on the basis of the evidence on the record. As far as the contention of the revisionists lawyer that the accused persons were so clever as not to expose their intention by using fire-arm, I am of the opinion that this is a piece of argument consisting of ingenuity of the Advocate. No common man or even the assailant, who is not habituated to crime, can be supposed to be so clever as not to leave a trace of his criminal intent, while committing a particular offence. 9. As a result of the aforesaid discussion upon the evidence on the record, I am of the opinion that the trial Court rightly acquitted the opposite party of this revision. So the judgment of the trial Court does not merit any interference by this Court. 10. In the result, the revision is dismissed.