Judgment A.K.Sinha, J. 1. The appellant, namely, Manoj alias poman Yadav has been convicted under Section 302 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for life. He has further been convicted under Section 392 of the Indian Penal Code read with section 398 of the Indian Penal Code and sentenced to undergo rigorous (sicimprisonment?) for seven years and has also been convicted under Section 27 of the Arms Act for which he has been sentenced to undergo rigorous imprisonment for three years. All the sentences were ordered to run concurrently. 2. Fard bayan of the informant, namely, Saket Devi wife of the deceased was recorded in Emergency Ward of the Sadar Hospital, Munger on 19.10.96 at 9.30 p.m, by S.I. U.L Singh of Kotwali P.S. The prosecution story as disclosed in the fardbayan is that at about 8.00 a.m. the deceased, namely Dashrath Mandal came on his motorcycle bearing no. BR-8-5 1684 and after parking his motor cycle outside his house he came inside the house. At that very time the appellant alongwith Rabish Yadav and an unknown man came to the house of the informant and demanded the motor cycle and on refusal they tried to flee away with the motor cycle of the informants husband which was objected by the husband of the informant whereupon, the appellant took out a country made pistol and fired upon the abdomen of the informants husband who fell down injured. On hearing the sound of firing the neighbours assembled, so the culprits fled away leaving the motor cycle, The informant claimed to identify the culprits in the iight of the electric bulb which was burning there out of whom she clearly identified the appellant and Rabish Yadav and also claimed to identify the unknown man who was with them. The informant with the help of her Dewar Manoj other villagers brought the deceased the hospltal for treatment where the fardbayan was recorded as informants husband was not in a position to speak. On the basis of the fardbayan the police registered a case under sections 393,397 307, 324/34 of the Indian Penal Code read with Section 27 of the Arms Act against the appellant and his associates. The deceased was referred to P.M.C.H.for treatment where he died and the case was converted under Section 302 of the indian Penal Code. On the basis of the fardbayan the police registered a case under sections 393,397 307, 324/34 of the Indian Penal Code read with Section 27 of the Arms Act against the appellant and his associates. The deceased was referred to P.M.C.H.for treatment where he died and the case was converted under Section 302 of the indian Penal Code. Cognizance was taken in the case under Sections 302, 392,397,398,of the Indian Penal Code and 27 of the Arms Act and the case was committed to the Court of Sessions for trial. The appellant and accused Rabish Yadav both faced trail The appellant was convicted and sentenced in the manner stated above and accused Rabish Yadav was also convicted under Section 392 of the Indian Penal Code read with Section 398 of the Indian Penal Code and was sentenced to undergo regorous imprisonment for seven years. 3. Accused Rabish Yadav is not the appellant before us. 4. In order to prove the charges the prosecution examined seven witness and one Manoj Kumar Mandal was examined as a Court witness. The defence also examined one witness, namely, Banu Kumar, who has stated that on 22.11.96 at 11.00 a,m. Dashrath Mandal and Pappu Yadav came at Basudeopur O.P. and he left the police station after receiving notice under Section 107 Cr.P.C. and Dashrath and Pappu remained at the O.P. D.W. 1 has admitted that there is no proof that he had received any such notice and has been suggested that at the instance of the accused he has falsely deposed in the case. 5. P.W. 2 Saket Devi is the wife of the deceased and the informant of the case. She has fully supported the prosecution story by stating that on the alleged date of occurrence her husband came from the market and went in the room to perform Navratra Pooja when he heard the sound of the motor cycle being brought down from the stand, so, he came out of the house. She also followed her husband. P.W. 2 saw that three persons were taking away the motorcycle of her husband and her husband tried to stop them on which accused Doman Yadav (appellant) fired from his pistol causing injury on the abdomen of her husband. She stated that accused Rabish was also present there and she could not identify the third man, who has come with them. She stated that accused Rabish was also present there and she could not identify the third man, who has come with them. Thereafter all the culprits fled away by firing in the air. P.W. 2 has stated that with the help of the Dewar and other villagers she brought her husband to the hospital where the S.I. of Police of Kotwali P.S. came and recorded her statement on which she signed after understanding the contents. She has proved her signature (Exhibit-1) on the fard bayan and also identified the appellant and Rabish Yadav who jointly faced the trial. Further evidence of P.W. 2 is that the doctor of Munger Hospital had referred her husband to Patna where her husband died In course of treatment. It appears from her cross-examination that the deceased died after 52 days at Patna, where he was admitted for his treatment and after performing the last rites she returned back home alongwith her Dewar (C.W. 1). P.W. 2 has stated that the police had not recorded the statement of Manoj in her presence and her statement was recorded at Munger Hospital in the night and the condition of her husband was very critical. She maintained to say that when her husband came out of the house she also came out of the house and was at a distance 2-3 steps from her husband and both of them came on the road when the accused persons were removing the motorcycle. The distance between the accused and her husband was about 3-4 steps and immediately after the occurrence she raised hue and cry on which her mother-in-law (P.W. 1) and Dewar (C.W, 1) came out of the house and they also raised alarm on which the villagers assembled. P.W. 2 has stated that her father-in-law was a teacher who died before her marriage and she denied the suggestion that her husband used to quarrel with the mother-in-law and Dewar for money received from the Govt. after the death of her father-in-law. She has also denied that there was any difference between her and the deceased for the aforesaid reason and that she did not take her husband to the hospital and her husband was actually brought to the hospital by the villagers and after long gap her Dewar Manoj tutored her to give statement before the police. She has also denied that there was any difference between her and the deceased for the aforesaid reason and that she did not take her husband to the hospital and her husband was actually brought to the hospital by the villagers and after long gap her Dewar Manoj tutored her to give statement before the police. P.W. 2 was cross-examined at length but her evidence on the point of occurrence has remained intact and nothing has been elicited in her evidence, save and except, some wild suggestions, which may render her evidence unworthy of placing credence. 6. P.W. 1 Babu Devi is the mother of the deceased who has deposed that immediately after the occurrence she came out of the house and went near her son who was injured by fire arm and on enquiry her son disclosed that Doman has fired upon him and accused Rabish yadav and one unknown man was present with Doman. She also testified that she saw all the three culprits fleeing away on the road in the light of the electric bulb burning there. She noticed that the motorcycle was lying at some distance. She raised alarm on which many villagers assembled and thereafter her daughter-in-law with the help of her youngest son and villager took away Dashrath Mandal to hospital and from there he was referred to Patna where he died..in her cross-examination, P.W. 1 has denied that her husband had married twice and the deceased was the son of his first wife. She has stated that her daughter-in-law was present near her son before she arrived and her son Manoj reached after her It appears that she alongwith her son had reached simultaneously after the incident of firing and both had raised alarm on which the neigbours assemDled. P.W.1 has stated that she had not gone to the hospital alongwith the deceased and there was no dispute of the kind between the deceased and her son Manoj before the occurrence. She has also denied the suggestion that the wife of Dashrath used to live separately and she alongwith Manoj and wife of the deceased had formed a group against him. She has also denied the suggestion that the wife of Dashrath used to live separately and she alongwith Manoj and wife of the deceased had formed a group against him. P.W. 1 has stated that she made statement before the police that she had seen Doman and Rabish fleeing away while they were looking back in the moonlit night as also in the light of the electric bulb and at that time both of them were firing and she had raised alarm by shouting that Doman and Rabish have killed her son but the I.0. (P.W. 5) has denied that she made such statement be fore him. She has also admitted that her son Dashrath died after 52 days and she had also gone to Patna tn see her son but returned back home after one day to take care of the children. She has stated that the shot hit on the left side of the abdomen of her son and at the time of occurrence her son was wearing Lungi and sandow Ganjee and shot passed through and through and came out from the back and from both the site of injury blood was coming out. She has further stated that she had no enmity with the appellant or accused Rabish Yadav from before and denied the suggestion that her son was a criminal and was killed by some unknown man. The statement of P.W. 1 to the effect that she immediately came out and saw her son in sitting position having received fire arm injury on his abdomen and he disclosed that the appellant had fired upon him has virtually remained unchallenged and the attention of the I.O. was not drawn to this statement so as to elicit any contradiction. Therefore, the unchallenged testimony of P.W. 1 corroborates the evidence of P.W. 2, who has stated that she saw the appellant firing upon the deceased. The evidence of P.W. 1 is relevant under Section 6 of the Evidence Act, inasmuch as she immediately came out of the house on hearing the sound of firing and saw the deceased in injured condition and at that time the deceased had not become unconscious and disclosed the name of the appellant as his assailant, who fired upon him. 7. The evidence of P.Ws. 7. The evidence of P.Ws. 1 and 2 finds corroboration from the evidence of Manoj Kumar Mandal (C.W. 1), who has deposed that when his brother came out of the house on hearing the sound of getting down the motor cycle from the stand, he also came out of the house and saw that the appellant alongwith Rabish Yadav and unknown man were fleeing away with the motor cycle of his brother and when his brother tried to snatch the motercycle the appellant fired upon his brother with his pistol causing injury on his abdomen and his brother sat down holding his abdomen and his sister-in-law started raising hue and cry on which the villagers assembled. He further stated that he clearly identified the culprits in the electric light which was burning in front of the house and he brought his brother to Munger hospital and the doctor referred him to Patna and his brother died in course of treatment. He has stated that police recorded his statement at Patna and when the statement of his sister-in-law was being recorded at Munger Hospital, his brother was unconscious. He has stated in his cross-examination that his statement was recorded only once after the death of his brother. It appears that Pirbahore Police at Patna had recorded the statement of this witness on which he had signed and his signature has been marked as Exhibit-A and his statement was attested by his brother-in-law Ajay Kumar Mandal, who also put his signature. C.W. 1 has given the detailed description of the P.O. land which is a road situated at a distance of ten steps from his house and at the time of occurrence has was present inside the house and came out when he heard the altercation going on between his deceased brother and the culprits. He has stated that he followed his sister-in-law who came out first from the house. He denied to have stated that he saw the culprits running away and stated that all the three accused were at a distance of 10-15 yards from him when he saw them. He denied the suggestion that he gave any statement to Munger Police on 22.11.96. On the point of occurrence evidence of this witness also has remained quite unshaken. 8. He denied the suggestion that he gave any statement to Munger Police on 22.11.96. On the point of occurrence evidence of this witness also has remained quite unshaken. 8. The evidence of the informant as well as P.W. 1 and C.W. 1 who are witnesses on the point of occurrence stands corroborated by Dr. Rajendra Choudhary P.W. 4), who examined the deceased at Sadar Hospital, Munger at 8.45 p.m. on the date of the alleged occurrence. He found following injuries on the person of the deceased Dashrath Mandal : 9. "I. One circular wound lacerated 1/2" diamater deep abdominal cavity with inverted margin edge blackened 2" left to lateral lumber 4 vertebra. II. One lacerated oval wound 1-1/2" diameter on left sub coastal region in mid clavicle line with everted margin abdominal cavity deep." 10. The aforesaid injuries were caused by fire arm but the nature of the injury was not mentioned by the doctor as the injured was referred to P.M.C.H. The age of the injury was within six hours. P.W. 4 has proved the injury report (Exhibit-4) granted by him. In cross-examination, P.W. 4 has stated that the shot might have been fired from the distance of about three feet from the pistol which makes his evidence probable because there was blackening at the site of the injury no. I. He further stated that profuse bleeding had been caused. There is nothing worth comment in his evidence. 11. P.W. 6 Dr. Arvind Kumar Singh conducted autopsy on the dead body of the deceased at 12.45 p.m. on 11.12.96 at P.M.C.H., Patna and he found the following ante mortem injuries on the person of the deceased : I. Three small openings on both the flanks of abdomen 1/2" in diameter. II. One colostomy seen on right flank of abdomen. III. Two bed sore (active) on back of buttock 2" x 2" and 1" x 1". IV. Two healed ulcer seen on back of scapular region. V. One wound 1-1/2" x 1" over back of right abdomen close to mid line seen 2" above illiac crest margin smooth and infected. 12. Time elapsed since death since 6-18 hours and the cause of death was due to septicemia (infection). IV. Two healed ulcer seen on back of scapular region. V. One wound 1-1/2" x 1" over back of right abdomen close to mid line seen 2" above illiac crest margin smooth and infected. 12. Time elapsed since death since 6-18 hours and the cause of death was due to septicemia (infection). As regards the nature of weapon used, P.W. 6 has stated that due to surgical interference and infective process opinion regarding the nature of weapon used could not be given by him which can be obtained from the concerned Surgeon. He has proved the post mortem report (Exhibit-5). In cross-examination, P.W. 6 has stated that he did not find any injury which by itself was sufficient to cause death of the deceased. 13. It would, therefore, appear that the evidence of P.W.6,who has examined the evidence of P.W. 4, who has examined the injuries of the deceased when he was first brought for treatment at Munger Hospital. The deceased admittedly died after 52 days and there was surgical interference between the period and it is also clear from the evidence of P.W. 6 that he found certain injuries as a result of the surgical interference and the death of deceased was caused due to septicemia (infection). 14. P.W. 3 Nanlal Singh is the S.I. of Police posted at Kotwali P.S., who received O.D. slip from Munger Sadar Hospital on which he went there and recorded the fardbayan (Exhibit-2) of the informant at 9.30 p.m. He also issued the injury report (Exhibit-3). He has stated that the injured Dashrath Mandal was unconscious. 15. P.W. 5 Mohan Lal Gupta was entrusted with the investigation of the case who visited the place of occurrence. According to him place of occurrence is a road situated adjacent to the house of the deceased where he found Rajdoot motor cycle BR-8-5 1684. He has given the detailed description of the P.O. land and has stated that he also prepared the sketch map of the P.O. land. He also arrested the appellant and accused Rabish Yadav and recovered pistol from their possession for which a separate case under Section 25(1)A of the Arms Act was instituted by him. P.W. 5 conducted part investigation and after his transfer the investigation was completed by P.W. 7 Moti Lal Prasad. He also arrested the appellant and accused Rabish Yadav and recovered pistol from their possession for which a separate case under Section 25(1)A of the Arms Act was instituted by him. P.W. 5 conducted part investigation and after his transfer the investigation was completed by P.W. 7 Moti Lal Prasad. P.W. 5 has stated that he did not meet with the informant and did ,not seize the motor cycle, in question, and also did not seize the blood. He also did not meet with the injured. He did not go to Patna as according to him he did not feel the necessity of it. He stated that besides blood marks he did not find any significant thing at the place of occurrence. He also did not mention the time when he went to the place of occurrence and stated that the date and time of his departure can be found mentioned in the station diary which he can produce. He further stated that he had not recovered the pistol from the accused but had seen that later on and he was not the investigating officer of Kotwali P. S. Case no. 602 of 1996 which was registered under the Arms Act. 16. P.W. 7 Moti Lal Prasad is the second I.O. of this case who has stated that he recorded the statement of Dashrath Mandal deceased on 22.11.96 and obtained the inquest report and the post mortem report after getting the information regarding the death of Dashrath Mandal He has stated that he was not known Dashrath Manda! from before and he not examine the injuries of Dashrath Mandal when he recorded his statement at Basudeopur O.P. He has denied the suggestion that the man who gave his statement as Dashrath Mandal was not actually Dashrath Mandal. It may be pointed out here that there was no basis for P.W. 7 to say that he recorded the statement of Dashrath Mandal since he was not known to Dashrath Mandal from before and he had not noticed any injury on his person, so, it is just possible that some body else might have given statement before him stating his name as Dashrath Mandal. There are evidences on record to show that Dashrath Mandal remained at P.M.C.H., Patna, in connection with his treatment where he ultimately died. So, the question of his giving statement at Basudeopur on 22.11.96 did never arise. There are evidences on record to show that Dashrath Mandal remained at P.M.C.H., Patna, in connection with his treatment where he ultimately died. So, the question of his giving statement at Basudeopur on 22.11.96 did never arise. P.W. 7 also did not ask the name of other persons, who had accompanied Dashrath Mandal when the alleged statement was recorded by him. P.W. 7 has admitted that he received inquest report and post mortem report by post on 23.12.96 and nobody had informed him about the death of Dashrath Mandal. He further stated that he submitted chargesheet under (s/cSection ?) 394 of the Indian Penal Code, He admitted that below paragraph no. 25 of the case diary he mentioned that the investigation is in progress and he had gone to the house of the accused but did not record the statement of any witness. The conduct of P.W. 7, who is the second I.O. or the cases goes to show that he had not conducted the investigation properly. Possibilities can not be ruled out that he came in league with accused and in order to help the accused persons committed the acts of omission and commission and in order to damage the prosecution case he recorded the statement of fake Dashrath Mandal on 22.11.96. The conduct of the I.O. simply demonstrates the indiscipline and callousness on the part of the police officer investigating the serious case like murder. 17. The Court out of his own anxiety to do justice in the case called for the bed head ticket from P.M.C.H. and has referred about the entries made in the bed head ticket in para 25 of his judgment. The Court found that deceased was admitted as indoor patient on 20.10.96 and was never discharged and ultimately shown dead on 10.12.96. It was also observed by the trial Court that there is no case of the defence that the deceased was discharged and re-admitted at P.M.C.H. on any day. Of course, the observation and finding of the learned trial Court has been seriously challenged by the learned counsel appearing for the appellant on the ground that the bed head ticket has not been properly marked exhibit and as such the Court could not have treated that as evidence in the case and any observation or finding given on the basis of bed head ticket called for by the Court is illegal. Even if there is substance in the submission of the learned counsel the evidence of P.W. 2 clearly shows that P.W. 2 remained with her husband at Patna alongwith her Dewar Manoj and after the death of the deceased she returned back home from Patna after performing the last rites. It is established from the evidence of P.W. 6 that the deceased died after 52 days due to septicemia and he had also developed bed shore and he remained continuously at Patna for his treatment. Therefore, the question of his returning back home before 22.11.96 is an absurd story created by P.W. 7, in order to damage the case of the prosecution. It is settled principle of law that the prosecution case cannot be rejected on the ground of irregularity or illegality committed by the Investigating Officer if it is proved by the evidence of trustworthy witnesses. Therefore, the illegalities and irregularities in conducting the investigation of the case committed by the I.O. cannot form the basis to rest the veracity of the prosecution case. 18. From the discussions of the evidence of the witnesses as referred to above, it would be found that P.W. 2 is an actual eye witness to the occurrence who saw the appellant firing upon her husband with pistol. P.W. 2 was subjected to lengthy cross-examination but she remained unshaken on the point of occurrence and the overt acts committed by the appellant. The evidence of P.W. 2 find corroboration from the medical evidence of both the doctors as also by the evidence of P.W. 1 and C.W. 1. The fardbayan of the informant was recorded with promptitude by P.W. 3, who recorded the statement of the informant after 1-1/2 hours of the alleged occurrence. As such, no doubt can be entertained as regard the statement made by the informant in her fardbeyan where she made categorical statement in respect of the place of occurrence and the manner in which the occurrence of firing took place. She also categorically stated that it was the appellant who fired upon her husband causing injury on his abdomen and the shot passed through and through from his back. It is also evident from the statement made by the witnesses that there was no animosity or dispute between the deceased and the appellant. She also categorically stated that it was the appellant who fired upon her husband causing injury on his abdomen and the shot passed through and through from his back. It is also evident from the statement made by the witnesses that there was no animosity or dispute between the deceased and the appellant. As such, there appears no reason why the informant will falsely implicate the appellant as the main assailant in her fardbayan which was recorded within 1-1/2 hours of the occurrence. 19. Learned counsel for the appellant, however, drew my attention to certain contradictions by pointing out that in the fardbayan the informant alleged that the culprits were demanding motor cycle from her husband whereas in the evidence the witnesses have stated that the deceased came out of the house on hearing the sound of the motor cycle getting down from its stand. These contradictions are of minor nature which hardly affect the prosecution case. It is possible that when the deceased came out of the house after hearing the sound of lifting the motor cycle the accused persons might have demanded the motor cycle. So, the informant made such statement in her fardbayan but there is consistent evidence that the accused persons started fleeing away with the motor cycle and when the deceased tried to snatch his motor cycle, the appellant fired upon him from his pistol. On close scrutiny of the evidence of P.Ws. on the point of occurrence, I do not find any material contradictions in their evidence. 20. Learned counsel appearing for the appellant, however, strongly argued before me that the case falls under the purview of section 304 Part II because the deceased died after 52 days due to septicemia as per the evidence of the doctor (P.W. 6). It was also submitted that the appellant had no intention to commit the murder because as per the F.l.R. the appellant had gone to the house of the deceased to demand the motor cycle and on his refusal while he was fleeing away with the motor cycle the deceased stopped him and in scuffle the appellant is said to have fired from his pistol. If the appellant would have fled away with the motor cycle, no occasion would have arisen to fire upon the deceased and at best the appellant would have been guilty for committing offence under Section 392 I.RC. If the appellant would have fled away with the motor cycle, no occasion would have arisen to fire upon the deceased and at best the appellant would have been guilty for committing offence under Section 392 I.RC. but as misfortune would have it, the scuffle ensured while taking away the motor cycle in course of which the incident of firing took place. 21. It is undisputed that the occurrence took place on 19.10.96 at 8.00 p.m. and the deceased died at P.M.C.H. on 10.12.96 i.e. after 52 days. P.W. 6, who conducted autopsy on the dead body has stated that the deceased died due to septicemta. In my view, death was not caused due to the injury caused by the appellant, rather, the deceased died due to septicemia and infection which may be the result of the carelessness on the part of the doctors or improper treatment of the deceased. The deceased who survived for more than 50 days could have survived if he would not have developed septicemia or infection. In such a case where the injury caused by the appellant is not the cause of the death of the deceased, who died due to some other reasons, that too, after 52 days, in my view, the case will fall under Section 304 Part II of the Indian Penal Code and not under Section 302 of the Indian Penal Code. In the case of Ramaswami V/s. State of Tamil Nadu [1982 (1) SCC Page 474], the mortal wound was caused by a single blow on the head. It was not fatal and the victim, for a time, survived in the hospital. Later surgery was done but, on account of infection, eventually he passed away 10 days later. In the circumstances, read in the light of the surrounding facts, the Apex Court was of the view that the offence was one under Section 304 Part II I.P.C. and not under Section 302 of the Indian Penal Code. Accordingly, the conviction of the appellant was converted from 302 I.P.C. to section 304 Part II I.PC. The principle enunciated in the aforesaid decision of the Apex Court is fully applicable in the facts and surrounding circumstances of the present case which is, rather on better footing because the deceased died after 52 days in course of treatment due to septicemia/infection. 22. The principle enunciated in the aforesaid decision of the Apex Court is fully applicable in the facts and surrounding circumstances of the present case which is, rather on better footing because the deceased died after 52 days in course of treatment due to septicemia/infection. 22. Having considered the facts and circumstances of the case, I am of the view that the prosecution had proved the charge under Section 304 Part II I.P.C. as also under Section 392 read with 398 of the Indian Penal Code and 27 of the Arms Act against the appellant beyond all reasonable doubt. Accordingly, the conviction of appellant under Section 302 I.P.C. is converted into 304 Part II I.P.C. and his conviction under other sections are upheld. Accordingly, the order of conviction and sentence is modified and the appellant is sentenced to undergo rigorous imprisonment for ten years under Section 304 Part II of the Indian Penal Code. The order of conviction and sentence as recorded by the trial Court under Section 392/398 of the Indian Penal Code and 27 of the Arms Act are upheld. 23. In the result, therefore, I do not find any merit in this appeal which stands dismissed with modification in the order of conviction and sentence as referred to above. The appellant who is in jail shall serve out the remaining part of the sentence. Bal Krishna Jha, J. 24 I agree.