JUDGEMENT PRABHAT KUMAR SINHA and BRAJ NANDAN PRASAD SINGH, JJ.:- The sale appellant stands convicted under section 302 of the Indian Penal Code (hereinafter referred to as 'the Code') and under section 27 of the Arms Act, sentenced to imprisonment for life for the former offence and rigorous imprisonment for five years for the latter in Sessions Trial no. 230 of 1994 under the judgment recorded by the Session Judge, Sitamarhi 2. This is a case in which the appellant is charged with murdering his own brother and informant is none other than his own mother and the prosecution case has b en mainly supported by the parents of the accused. 3. The case of the prosecution, in brief, as coming out from the fardbayan (Exhibit-3) on which formal first information report (Exhibit-4) was drawn up, is that on 13.6.1994 in the morning a quarrel had ensued in between Ramadhar Singh and Shiv Balak Singh about plucking of mangoes at which the deceased had gone and reconciled their differences. After that the deceased, Sunil Singh, came back to his house where he was confronted by the appellant, his brother, who questioned his action in going to reconcile the difference between the aforesaid two. The appellant is said to have told him, on the reply given by the victim, that he was not the one to interfere in their quarrels, threatening to kill him. Saying this he allegedly took out a pistol, pointed it at Sunil Singh and said that he would kill him and fired which hit him in chest and Sunil Singh died of the injury suffered, as aforesaid. The informant has claimed that her son, Hari Shanker Singh was a person of bad character and he used to assault inmates of the house and only a day back he had abused his family members while demanding money. It was claimed that the appellant since some time had gone in favour of Ramadhar Singh, one of the persons who had quarreled on the plucking of mangoes. 4. The defence of the appellant in the trial court, as coming out from his examination under section 313 of the Code of Criminal Procedure was that he had not done anything but the deceased was assaulted by Shiv Balak Singh and Ramadhar Singh and was killed by the firing of Ramadhar Singh. 4. The defence of the appellant in the trial court, as coming out from his examination under section 313 of the Code of Criminal Procedure was that he had not done anything but the deceased was assaulted by Shiv Balak Singh and Ramadhar Singh and was killed by the firing of Ramadhar Singh. Witnesses have been suggested that the deceased was killed by someone - else but because there was bad blood between his parents and the appellant, he was falsely implicated. 5. Coming to the evidence in the case, a total of seven witnesses have been examined. P.W.1 is Dhaneshwar Manjhi, a labourer who had claimed to be working near the place of occurrence and claimed in his evidence that when the appellant fired upon the deceased the shot had passed through him and had hit him on his leg thereby also injurying him. P.W.2 is Nagina Devi, the informant herself and the next witness is Kuleshwar Singh, her husband. P.W.7 is I. Lakra, the Investigating Police officer. P.W.7 is I. Lakra, the Investigating Police officer. P.Ws 4 and 5, Jai Shanker Singh and Ram Pukar Singh, did not support the prosecution case and were declared hostile by the prosecution which also cross-examined them P.W.6, Sita Saran Singh, was tendered for cross-examination but nothing of importance has come from his cross-examination. 6. Now a glance over the evidence of witness P.W.1, as stated earlier, had claimed to be present at the time of occurrence who said in his evidence that while he was working there he received a fire arm injury and then he moved towards the place where firing had taken place and found Sunil Singh dead. Witness claimed that Hari Shanker Shanker Singh, the appellant, had fired upon him. This witness further said that he was treated by a private doctor which doctor however, has not been examined. He had seen the pistol in the hands of Hari Shanker Singh. He also said that Sunil Singh earlier had gone to reconcile the differences in between Ramadhar Singh and Shiv Balak Singh who had quarreled relating to mangoes, and also claimed that Hari Shanker Singh was siding with Ramadhar Singh. He had seen the pistol in the hands of Hari Shanker Singh. He also said that Sunil Singh earlier had gone to reconcile the differences in between Ramadhar Singh and Shiv Balak Singh who had quarreled relating to mangoes, and also claimed that Hari Shanker Singh was siding with Ramadhar Singh. In so far as this witness is concerned, it was pointed out by the learned counsel for the appellant that in cross-examination witness had said that when he received the fire arm injury he fell unconscious and gained senses after an hour where after he was taken for treatment. Learned counsel has submitted that since he has claimed to have fallen unconscious immediately after receiving the fire arm injury, he could not have seen the appellant with pistol which he has claimed to have seen when after receiving injury he moved towards the place of occurrence. However, in cross-examination this witness also had said that verbal dual in between the deceased and the appellant had taken place in his presence at the Darwaza of one Lachu Singh. He also clarified that the exit of all the persons were contiguous. He also claimed that Sunil Singh was going out with bicycle when the appellant had accosted him. He also testified that Hari Shanker Singh had asked Sunil as to why he had assaulted Ramadhar Singh, and at the spot the deceased was killed. Even if it be taken that the witness had fallen unconscious on receiving the fire arm injury, yet he has fully supported what had preceded just before the killing of Sunil Singh and to that extent his evidence has not been disturbed in cross-examination. 7. P.W.2 is the informant who had testified about Sunil Singh intervening in quarrel in between Ramadhar Singh and Shiv Balak Singh. In her statement she said that Sunil Singh came to his house followed by the appellant who asked the victim as to why he had intervened in the quarrel between the two. This witness said that appellant also told Sunil Singh that he would kill him and saying this the appellant fired from his fire arm hitting in the chest of Sunil who fell down there and expired She has supported that the shot also had injured Dhaneshwar Manjhi. This witness said that appellant also told Sunil Singh that he would kill him and saying this the appellant fired from his fire arm hitting in the chest of Sunil who fell down there and expired She has supported that the shot also had injured Dhaneshwar Manjhi. As pointed out on behalf of the appellant, she also had said that her husband had gone to the police station, also saying that her statement was recorded by the Police Officer on which she had signed (Exhibit-1). In cross-examination she had said that in the earlier quarrel between the two others Sunil was called by Shiv Balak Singh and appellant was then sitting at the door of Ramadhar Singh. She said that Sunil came back to his house, took his meal and when he started going outside, this occurrence had taken place. She has claimed that on hearing verbal dual between the two she also had come to the place of occurrence. She has also said that Sunil was about two steps away when the appellant had taken out his pistol. She also had tried to stop him but he immediately fired upon his brother. She also claimed that at the door blood also had fallen. At that time, according to this witness, only her husband as a witness was present. She was suggested that Sunil was killed elsewhere but since they were tired of the appellant, he was implicated which she denied. So far occurrence is concerned, nothing significant was taken from this witness in cross-examination. 8. P.W.3 is the father of the appellant. He also has supported that when Sunil was going out with a cycle, the appellant had accosted him and has asked why he had assaulted Ramadhar Singh. He said that thereafter the appellant placed the fire arm at his chest saying that he would kill him, where after he fired which hit on the left side of the chest of deceased. The deceased fell down and the shot came out of his body and hit Dhaneshwar Manjhi, below his knee. He has also stated that Hari Shanker Singh earlier also used to trouble them. 9. In cross-examination he admitted that the appellant had separated since a partition had already taken place in the family. He also claimed that he had no personal quarrel with the appellant. He has also stated that Hari Shanker Singh earlier also used to trouble them. 9. In cross-examination he admitted that the appellant had separated since a partition had already taken place in the family. He also claimed that he had no personal quarrel with the appellant. He also denied the suggestion that earlier the appellant was given poison in the milk, or that in the year 1993 he had filed a dacoity case against the appellant. He also said that he was at his 'Darwaza', near the place of occurrence. According to this witness blood also had fallen down and that the appellant had killed from a distance of two cubits. 10. This witness further said that after death of his son he had gone to the police station and had informed the police about the occurrence where after the Police Officer came to his house, visited the dead body and on the statement of his wife, instituted the case. He also said that he had given verbal information at the police station. He also denied the suggestion that the deceased was killed elsewhere. 11. P.W.4 is Jai Shanker Singh, the third son of the informant, who only said that when he came to house from the field, he found Sunil Singh dead at the 'Darwaza' but he did not know who had killed him. 12. P.W.7, the Investigation Officer, said that on receiving information about the occurrence he had gone to the house of Nagina Devi and had recorded her fardbayan at 10.45 A.M., and registered the case. He also prepared the inquest report of the dead body, which is Exhibit-2, where after he sent the dead body for post mortem. This witness has also described the place of occurrence. In that context he referred the situation of the house of the informant. He claimed that at the spot on the ground he had found blood and had seized the blood stained soil but he admitted that he had not sent that for forensic examination. He also admitted that he had not taken statement of Ramadhar Singh, or Shiv Balak Singh. He admitted that Kuleshwar Singh, P.W.3, had told him that appellant used to threaten them for money and had sold the land of his share. He also said that this witness had not said that the same shot had also injured the knee of P.W.1. 13. He admitted that Kuleshwar Singh, P.W.3, had told him that appellant used to threaten them for money and had sold the land of his share. He also said that this witness had not said that the same shot had also injured the knee of P.W.1. 13. This is all the evidence on record. 14. The learned counsel for the appellant has raised several points, the most important amongst them being that the doctor, who had conducted the post mortem examination on the dead body was not examined nor the post mortem report was brought on the record as evidence which was a lacuna that had prejudiced the defence, also in view of the fact that P.W.2 has claimed that the deceased had taken meal just before the occurrence hence that fact could have been verified only from the post mortem report. It was also argued that those two persons, who had quarreled which the deceased had gone to reconcile, have not been examined hence adverse inference should be drawn on that account. It was submitted that though blood was seized but that was not sent for forensic examination. The next point of the learned counsel was that P.W.2 had admitted that the husband had gone to police station and the husband, P.W.3, in his statement has claimed that he had earlier told about incident to the police still his statement was not recorded as 'fardbayan' which should have been recorded and treated as the first information report. The learned counsel also has pointed out certain Contradictions in the statement of P.W.3 from the statement given before the police which have already been referred to above. 15. As already seen, the most important witnesses to the occurrence in this case are none other than the parents of the appellant. It has been argued that since the parents did not have congenial relationship with the appellant, there was chance that they could have falsely implicated him. 16. In so far as the evidence of P.Ws. 2 and 3 is concerned, we find their evidence credible on the face of it as no serious contradiction in their statements has been pointed out. They have testified as to the place of occurrence which has been supported by the Investigating Police Officer. Both have said that it was the appellant who had fired shot which had hit the deceased, who died as result there of. They have testified as to the place of occurrence which has been supported by the Investigating Police Officer. Both have said that it was the appellant who had fired shot which had hit the deceased, who died as result there of. 17. Though medical report is not on the record but Exhibit-2 the inquest report, prepared by the Investigating Police officer has been brought in evidence. This witness had observed, in Exhibit-2, that on the left side of the chest there was a wound which appeared to be caused by fire arm and on the left side of the back he also found a hole like wound. As per inquest report, tie claimed that the death was caused by fire arm. 18. Therefore, there, is sufficient and trustworthy ocular evidence on the record that proves that the deceased was accosted by the appellant, armed with a country made pistol or revolver for intervening in tile quarrel between Ramadhar Singh and another, for which a verbal dual had taken place and soon thereafter the appellant has put his fire arm on the chest of the deceased and had fired, killing him. The occurrence had taken place in the house of the informant who and her husband were present there, hence were natural witnesses. Having already lost a son it was not likely that they, particularly the mother, would have falsely implicated their another son thereby shielding a third person who might have been the real assailant. 19. Medical evidence is not the sole, determining evidence about commission of an offence such as murder. It is just one of the evidence which mayor may not support ocular evidence. But if the ocular evidence is sufficient, credible and believable, in that case even if the medical report is on the record, but contradicts such ocular evidence, the ocular evidence must prevail upon the medical evidence. However, it will appear from the lower court records that despite attempts the doctor could not be examined and the post mortem report could not be brought on the record. In such circumstance, if the ocular evidence is found to be trustworthy and sufficient to bring home the charge against the accused then, notwithstanding absence of another evidence, that of the doctor, the charge can be held to have been proved. In such circumstance, if the ocular evidence is found to be trustworthy and sufficient to bring home the charge against the accused then, notwithstanding absence of another evidence, that of the doctor, the charge can be held to have been proved. This way we find that because of absence of the evidence of the doctor or the post mortem report, the prosecution case will not suffer in view of the evidence that has been brought on the record in this case. 20. Though the Investigating Officer has failed to record the statements of Ramadhar Singh and Shiv Balak Singh, but we do not think that non-examination of those two witnesses who were not on the point of actual occurrence, would cause any dent in the prosecution case. 21. Though the blood stained soil, which is said to have been seized, was not sent for forensic examination but in view of the evidence on record that also will not prove fatal to the prosecution case. 22. In so far as not treating the statement of the husband at the police station as first information report is concerned, it may also be noticed that soon after receiving the information of occurrence, which is said to have taken place at about 9.00 A.M. the Police Officer had proceeded to the place of occurrence and soon thereafter he had recorded the statement of the informant at the spot. From Exhibit-4, the formal first information report it would appear that the police station was about nine kilometers away from the place of occurrence. Hence, it must have taken time for the husband to reach the police station and the Police Officer to accompany him back to the place of occurrence. Therefore, it will appear that the Police had acted in quite earnest and soon after receiving the information the Police officer had proceeded towards, the place of occurrence and had recorded the fardbayan of the informant at 10.45 A.M. 23. What was the reason as to why the statement of the husband was not recorded at the police station has not come in evidence. But, from Exhibit-3 it will appear that the wife had also stated - “Hamara Admi Bhi Dusre Ka Naam Kahne Kah Rahe The Lekin Ham Sahi Kahi Hoon." 'Hamara Aadmi' generally Means the husband. What was the reason as to why the statement of the husband was not recorded at the police station has not come in evidence. But, from Exhibit-3 it will appear that the wife had also stated - “Hamara Admi Bhi Dusre Ka Naam Kahne Kah Rahe The Lekin Ham Sahi Kahi Hoon." 'Hamara Aadmi' generally Means the husband. May be that the Police Officer for some reason had not thought it proper to record the statement of the husband and had thought it fit to proceed to the place of occurrence and to record first information report there after viewing the situation at the spot. In any case, the Police officer had not caused any delay in proceeding to the place of occurrence as is apparent from the evidence, hence this point raised by the learned counsel for the appellant would not be fatal the prosecution case. 24. In view of the discussions aforesaid, we find that prosecution had brought on the record cogent and sufficient evidence to bring home the charge against the appellant beyond reasonable doubts. In view of that the order of conviction and that of sentence awarded to the appellant by the learned trial court cannot be interfered with. 25. In the result, this appeal fails and is dismissed.