Judgment BRAJ NANDAN PRASAD SINGH, J. 1. Broad features of the prosecution case, which have been fairly spelt out in the judgment of the Court below, can be recapitulated with brevity. A police case had been registered on behest of Asharfi Sah (PW 9) with accusation that at about 7.30 a.m. on 4th November. 1988. as Rama Shankar Sah and Nathu Sah were closing the passage of drainage with earth, Ram Sakhi Devi (deceased) registered protest when there was exchange of abuses between them, pursuant to which on exhortation made by Nathu Sah to assault, Rama Shankar Sah (both hereinafter referred to as the appellant) ran for assault when Ram Sakhi Devi on being chased, suffered injuries at the hands of said Rama Shankar Sah, the appellant, when he pierced bhala in the right side of her chest near the house of Bhola Choudhary, and dropped on the ground. Though all endeavours were made to save the life of the injured, after she was taken for medical aid, she succumbed to the injuries. The fardbeyan of Asharfi Sah, husband of the deceased, was recorded by the Police Officer of Mirganj Police Station at 10 hours on 4th November, 1988 near Ravi X-ray at Mirganj, pursuant to which. First Information Report was registered and investigation followed. During investigation, the Investigating Officer visited place of occurrence, recorded statement of witnesses, prepared inquest over the dead body of the deceased, sent the dead body to mortuary for post mortem examination and on conclusion of investigation, laid charge sheet before the Court. In the eventual trial that followed, the State examined altogether 11 witnesses, who were husband of the deceased, some of those, who claimed to have witnessed the incident, some who turned volte face to the State, and some of those who were quite formal in nature and had simply brought some documents on the record. The State also examined doctor who held autopsy over the dead body. 2. The State also examined doctor who held autopsy over the dead body. 2. The defence of the appellants both before the Court below and this Court had been plain denial of entire allegations attributed to them, and they ascribed their false implication, However, defence did not chose to examine any witness, and the Trial Court, while negativing assertions made on behalf of the appellants, rejecting plea of innocence, recorded finding of guilt convicting the appellants under Section 302/34, Indian Penal Code (IPC) and sentenced them to suffer rigorous imprisonment for life which is under challenge in this appeal. 3. Volume of arguments were pressed on behalf of the appellants obviously to assail the findings recorded by the Court below and to counter the allegations attributed to the appellants, and the foremost criticism that were sought to be made by the learned counsel for the appellants was that though Asharfi Sah (PW 9) claimed to have witnessed the incident, projecting himself to be an ocular witness, if narration made by Sukanth Choudhary (PW 1) and Kailash Sah (PW 2) was to be given any credence, they had excluded presence of Asharfi Sah during material time of incident, and in that backdrop, assertions made by Asharfi Sah giving ocular account of the incident, has to be discarded in entirety. Yet, it is urged that though recitals made in the fardbeyan of Asharfi Sah did suggest a place near the house of Bhola Choudhary, to be the place of occurrence, but the ocular account given by other witnesses did not project the place, in front of the house of Bhola Choudhary, to be the place of occurrence and on these premises it is urged that since prosecution was guilty of introducing distorted version also about place of occurrence, and also because the Investigating Officer had not been examined at trial, the place of occurrence remained ambiguous, and on this score too, the prosecution case was unworthy of credence. The other criticism which is sought to be made against the finding recorded by the Court below was that though the witnesses were making narrations with sustained consistencies that Ram Sakhi Devi suffered injuries in the process of being chased by the appellants, in the posture of the deceased about receipt of injury in process of being chased is taken into consideration. in all probability Ram Sakhi. in all probability Ram Sakhi. Devi should have sustained injuries on the back, instead of chest, which has been the prosecution version. Non-examination of the Investigating Officer was also taken to be a ground to suspect the bona fide of the prosecution version, and yet. it is urged with all stress that the defence was prejudiced also on this score, as though attention of some of the witnesses was drawn by the defence, that could not be placed on the record due to non-examination of the Investigating Officer. As for the genesis of the incident, criticism was that though recitals made in the fardbeyan of Asharfi Sah was that the incident followed, when appellants were filling earth in drain in the courtyard of Asharfi Sah, contrary to these assertions made in the fardbeyan, the maker of it was stating at trial that incident followed after the appellant were closing the passage of drain. 4. Certain variations in the evidence of none else but Asharfi Sah (PW 9), about place where his fardbeyan was recorded by the police, was also highlighted at Bar and on these premises, too, it was urged that in view of ambiguity that has emerged in his evidence, the fardbeyan must be treated to be a tainted document. Non-examination of Surendra Lal and Rajendra Lal, who were projected as eye-witnesses right from inception of the quarrel, with regard to drainage, and also non-examination of those large number of persons who thronged to the place of occurrence at the material time of incident, was also taken as serious infirmity in the prosecution case, as those, examined at trial, were interested persons entirely to the exclusion of independent witnesses, against whom possibly no finger could have been raised about their impartiality. Non- examination of the doctor who allegedly examined the injured in Hathua Hospital, and declared him dead, was also highlighted at Bar to urge that even the doctor who was of vital significance was left out to be examined. Non- examination of the doctor who allegedly examined the injured in Hathua Hospital, and declared him dead, was also highlighted at Bar to urge that even the doctor who was of vital significance was left out to be examined. Yet it is urged that though it was admitted even by the prosecution witnesses that Ram Shankar Sah too suffered injury in the same transaction, the prosecution had failed to explain injuries on his person and on this score too the prosecution case had to be disbelieved and the finding of the Trial Court recorded against the appellants had to be negatived, and the last argument was that taking the version of the prosecution to be true, in the backdrop of the narrations made by witnesses, regard being had to the circumstances in which the deceased suffered injuries on her person, conclusion which can possibly be drawn was that all that happened was in spur of moment and also in heat of passion, which did not attract mischief of Section 302, IPC and in that view of the matter, the allegations attributed to the appellants will come within the mischief of Section 304, Part II of the Penal Code. 5. Before we bestow our anxious consideration to the lucid arguments canvassed at Bar, we consider it appropriate to analyse evidences on record, and while evaluating the testimony of the witnesses, we find Asharfi Yadav (PW 9) reiterating his earliest version about the appellants closing passage of drain which flows out of the courtyard of his house, when his wife registered protest, pursuant to which on exhortation made by Nathu Sah, another appellant, Rama Shankar Sah having brought bhala from his house, chasing her, pierced it in her right side of chest near the house of Bhola Choudhary, Sukath Choudhary and Bali Choudhary, when she dropped on the ground. After Shanti Devi bandaged her wound, he took his wife for medical assistance to Hathwa, but by that time she had succumbed to the injuries. The witness states that while he was returning from Hathwa, he happened to meet Police Officer where his statement was recorded and the dead body of his wife was brought to the Police Station. 6. After Shanti Devi bandaged her wound, he took his wife for medical assistance to Hathwa, but by that time she had succumbed to the injuries. The witness states that while he was returning from Hathwa, he happened to meet Police Officer where his statement was recorded and the dead body of his wife was brought to the Police Station. 6. Other witness of significance, on whom Trial Court too had placed reliance was Sukath Choudhary (PW 1) and this witness stated to have witnessed the incident from his house, when the appellants had picked up a quarrel with the deceased, pursuant to which, chasing the deceased. Rama Shankar Sah on being exhorted by Nathu Sah, pierced bhala in her chest and it was Shanti Devi who had bandaged her wound with torn piece of her wearing apparel, and while the injured was being taken to Hathwa hospital, she succumbed to the injuries. 7. Now we may advert to the narrations made by other witness and he happens to be Kailash Sah (PW 2), the other eye-witness on whom the Trial Court had placed reliance. This witness too hails from village Harkhauli and stated to have witnessed quarrel between the deceased and the appellants with regard to drainage, pursuant to which, Rama Shankar Sah, having brought bhala from his house, on behest of Nathu Sail, pierced it in the chest of the deceased who dropped injured in the ground. Though the injured was taken to Hathwa hospital, she was dead. 8. Now we may come to the finding of the doctor, Dr. Tirtha Nand Singh (PW 10). who, while holding autopsy over the dead body of the deceased, stated to have noticed following injuries on her person : (1) An incised perforating wound on front of right side of chest, just above nipple 2-1/2" x 1/2" x deep to hollow viscus. On dissection, the doctor noticed penetrating wound passing obliquely and internally from right to left side of thorax involving inter coastal muscle pleura and right side of lung to right side of antreum of heart. The wound of heart measuring 3/4" x 1 /4" x deep to hollow viscus. The whole thorax cavity was full of blood with clotted blood on lower part of chest. The wound of heart measuring 3/4" x 1 /4" x deep to hollow viscus. The whole thorax cavity was full of blood with clotted blood on lower part of chest. In opinion of the doctor, death of the deceased was due to spontaneous profuse haemorrhage inside the thorax cavity, and shock caused by sharp penetrating weapon, and the injury, in his estimation was sufficient in ordinary course of nature to cause death. 9. The rest witness who deserves consideration, though not of vital significance, is Umesh Pathak (PW 4), who states to have carried the injured to Hathwa hospital on a trekker with bleeding injury on her person, and as for identity of the injured, the witness states that people were staling her to be wife of Asharfi Sah. Hriday Singh (PW 3) was a witness to the preparation of the inquest report which was prepared on 4th November, 1988 in front of the shop of Ravi X-ray. This witness hails from a village which situates at a distance of five kms. from Mirganj, and presence of this witness during preparation of inquest report appears to be most probable. Now, we may notice narration made by some witnesses who had turned volte face to the State, and they happened to be Rajendra Prasad (PW 5) and Dhananjay Shankar Saran (PW 6). Some witnesses were tendered by the State and narration of their testimony too deserves consideration. Satya Narayan Bhagat (PW 7) and Bhola Choudhary (PW 8) were tendered by the State and our attention has been drawn by the learned counsel for the appellants towards narrations made by these witnesses during cross-examination about they having not witnessed the incident, notwithstanding that they were suggested to be ocular witnesses lo the incident by the maker of the fardbeyan. We may refer to Hridya Singh (PW 3) and Raghubansh Singh (PW 11) too who were quite formal and had brought some documents on the record. There being nothing material in their evidences, they do not merit much consideration. This is all the evidence that has been adduced on behalf of the State. 10. Now. we may appreciate contentions raised at Bar on behalf of the appellants. There being nothing material in their evidences, they do not merit much consideration. This is all the evidence that has been adduced on behalf of the State. 10. Now. we may appreciate contentions raised at Bar on behalf of the appellants. Taking narration made by Kailash Sah (PW 2), we find witness stating that preceding quarrel, or flow of water in drain, Asharfi Sah was not in the village, as he had gone, two days earlier, and it was only in the evening, that he came to his village when he was informed by him about the incident. It was on these premises that the learned counsel urges for exclusion of testimony of Asharfi Sah among eye-witnesses. We would have given credence to such narration made by the witness which appear to be stray statement, apart from the fact that entire narration has to be taken into consideration in totality instead of stray statement made by a witness, we find one more reason for rejection of the argument made on this score. Since fardbeyan of Asharfi Sah was recorded by the Police Officer as early as at 10 a.m. on 4.11.1988 at Mirganj. stray narration made by this witness that preceding the incident. Asharfi Sah was not available in the village loses all its significance. Now, we may advenr to some narrations made by Sukath Choudhary (PW 1). This witness too states that about 200 persons had thronged to the place of occurrence, and it was only after the deceased dropped to the ground on receipt of injuries, that Kailash Sah. Bhola Choudhary and even Asharfi Sah happened to reach there. Now, testing credibility of this witness on narrations made by him about presence of Asharfi Sah and Kailash Sah during material time of incident, on own showing, witness says that about 200 people had thronged to the place of occurrence, and it looks quite unusual for a person to assess availability of a person at a given time in the mob. In a mob where 200 persons had assembled, it looks quite dilficult to assess as to who reached earlier or after the incident, and on this score too we would negate the argument made at Bar about exclusion of Asharfi Sah in view of stray narrations made by Sukath Choudhary (PW 1). 11. In a mob where 200 persons had assembled, it looks quite dilficult to assess as to who reached earlier or after the incident, and on this score too we would negate the argument made at Bar about exclusion of Asharfi Sah in view of stray narrations made by Sukath Choudhary (PW 1). 11. Though recitals of fardbeyan did suggest that the injured shortly after receipt of injury dropped near the house of Bhola Choudhary, narration made by other witnesses including Sukath Choudhary and Asharfi Sah. (PW 9) would manifestly suggest that houses of Bhola Choudhary, Sukanth and Kailash are almost contiguous and in the same vicinity, and once location of houses in this order is accepted, argument about the State introducing distorted version about the place of occurrence does not hold good. We have noticed Kailash Sah (PW 2) stating that assault took place near drainage between Asharfi Sah and the appellants, when appellants also assaulted the deceased with fists and slaps on her back. Admittedly, this was not the place of occurrence to which the prosecution witnesses referred to in their evidences. To us. it seems that shortly after inception of the quarrel, assault on deceased by appellants on her back might have taken place near the drainage, pursuant to which after the deceased was being chased by Nathu Sah. she suffered injuries near house of Bhola Choudhary and Sukanth Choudhary when appellant Rama Shankar Sah pierced bhala in her chest and our view in fortified from statements further made by the witnesses. The witnesses state that after about 2-3 hours of this assault, the deceased had sustained assault when she dropped to the ground. True it is that we have noticed that the Investigating Officer has not been examined at trial and admittedly, we feel that had Investigating Officer been examined. some of the questions which of course are of no vital significance, would not have remained unanswered, but for that reason too we do hot find that for failure of the State to examine the Investigating Officer, the entire narrations of the ocular witnesses, if they do not suffer infirmity, has to be discarded. 12. Now, we may notice some arguments which though appear to be quite alluring, are devoid of merit. 12. Now, we may notice some arguments which though appear to be quite alluring, are devoid of merit. The witnesses were making emphatic assertion at trial that when Nathu Sah was chasing the deceased, Rama Shankar Sah holding bhala came from opposite direction, when he pierced it in the chest of the deceased and in the backdrop of this situation, presence of the injury on the chest of the deceased was not an unusual feature of the prosecution case and that apart even the finding recorded by the doctor leads us to believe the receipt of the injury from the front side. A good deal of arguments were addressed to the Court also about made of assault being not in conformity with the findings recorded by the doctor and to espouse the logic, it is contended that taking the posture of the assailant and also the deceased, when bhala was pierced in the chest of the deceased by the assailant, positive findings recorded by the doctor about the features of the injuries, make the witnesses unworthy of credence and on this score too. we find that the finding recorded by the doctor was with the tune of narrations made by the ocular witnesses. Both Sukanth Choudhary (PW 1) and Asharfi Sah (PW 9) stated that the assailant pierced bhala obliquely, raisin his hands upward on the deceased and without, losing any time, we must say that similar was the positive finding of the doctor about feature of the injury who says that on dissection, he noticed penetrating wound passing obliquely and internally from right to left side of thorax, involving inter coastal muscle pleura and right side of lung to right side of antreum of heart. Though at some place statements were made by Asharfi Sah about recording of fardbeyan at Police Station, without loss of any time, the witness states about his statement having been recorded at Mirganj, where he met the Police Officer and that also gets corroborated from the fardbeyan itself which shows recording of fardbeyan near Ravi X-ray at Mirganj. Though at some place statements were made by Asharfi Sah about recording of fardbeyan at Police Station, without loss of any time, the witness states about his statement having been recorded at Mirganj, where he met the Police Officer and that also gets corroborated from the fardbeyan itself which shows recording of fardbeyan near Ravi X-ray at Mirganj. There are yet other reasons which persuades us to believe Asharfi Sah, that his fardbeyan was recorded near Ravi X-ray at Mirganj, as the witness says that though Police Officer asked some questions at the Police Station too from him, but he could not say as to whether those statements were recorded at the Police Station after he reached there in the company of the Police Officer from Mirganj. 13. Though defence had not chosen to examine either the appellant about receipt of injury by him or the doctor, to fortify defence, contention about receipt of injury by Rama Shankar Sah in the same transaction, we do find Kailash Sah (PW 2) stating that Rama Shankar Sah during assault, fell on the ground that suffered injuries, and also lost his teeth, and if narration made by this witness was taken to be true, the prosecution cannot possibly be blamed for not explaining injury on the person of Rama Shankar Sah, and that apart, even if it is assumed that Rama Shankar Sah suffered injury in the same transaction which remained unexplained by the State, in view of authoritative decision of the Apex Court, reported in 2001 (2) East Cr C 231 (SC) : AIR 2001 SC 2328 . Takahji Hiraji v. Thakore Kubersing Chaman Singh and others, failure to explain injury by the State did not negate the prosecution case, where evidences were clear and cogent and Court can distinguish truth from falsehood, and on this score too. we find that the argument advanced on behalf of the appellants, did not hold good. Now. as for genesis of the incident, we have noticed that on this score too, prosecution cannot be alleged to have introduced distorted version about genesis of the incident, as both in the fardbeyan and also in the evidence of PW 1, the genesis of incident was about closing the passage of drain. No other case was sought to be made at trial which was not in the earliest version of Asharfi Sah. No other case was sought to be made at trial which was not in the earliest version of Asharfi Sah. Certain part of evidence of Sukanth Sah (PW 1) and Asharfi Sah (PW 9) was sought to be impeached, there being no such parallel statement made by the witnesses during investigation before the police. Attention of Asharfi Sah (PW 9) was drawn about variations about place where his wife dropped on the ground on receipt of injury. His attention has been drawn about there being variations with, regard to Rama Shankar Sah committing overtact, alleged to him on having brought bhala from his house, and we must say that as for the first criticism about variation with regard to place where the deceased dropped on receipt of injury, we have noticed that in fact there is no variation, as houses of Bhola Choudhary, Sukanth and Kailash Singh situated in the same vicinity, contiguous to each other and for the second criticism, it is quite immaterial, as there has been no variation about deceased sustaining injury with bhala by appellant Rama Shankar Sah. 14. We may now notice such argument advanced on this score. It seems that after there was exchange of abuses between the deceased and Nathu Sah, the other appellant Rama Shankar Sah, having brought bhala from his house, pierced it in the chest of the deceased and if this is considered to be true, argument about the incident having followed in spur of moment in heat of passion did not hold good. Now coming to the last limb of argument, we have noticed the witnesses stating that shortly after exchange of abuses between the deceased and Nathu Sah, other appellant, namely. Rama Shankar Sah, having brought bhala from bis house, pierced it in the chest of the deceased. Considering the prosecution case in this background, argument about incident having followed in spur of moment in the heat of passion did not hold good. Both Sukanth Choudhary (PW 1) and Kailash Sah (PW 2) hail from village Harkhauli and their houses are at a significant distance from the house of Asharfi Sah. They are neighbours and most probable witnesses. Occurrence took place at 7.30 a.m. on the 4th November, 198S and fardbeyan . Both Sukanth Choudhary (PW 1) and Kailash Sah (PW 2) hail from village Harkhauli and their houses are at a significant distance from the house of Asharfi Sah. They are neighbours and most probable witnesses. Occurrence took place at 7.30 a.m. on the 4th November, 198S and fardbeyan . of Asharfi Sah was recorded at Mirganj by the Police Officer at 10 a.m., near Ravi X-ray, and hence, there was no time for concoction or embellishment and we find that the prosecution was launched with all promptitude. 15. However, we may notice certain disturbing features of the prosecution case which have caught our attention. The accusations attributed to Rama Shankar Sah was about piercing bhala in the chest of the deceased, following which while she was being carried to Hathwa hospital, succumbed to the injuries. Narrations made by he witnesses, as we have found, were with sustained consistencies and free from infirmities. So far Nathu Sao was concerned, the prosecution has assigned twin role to this appellant. He was shown to have chased the deceased, and also exhorting the assailant. We have examined the prosecution evidences to determine the complicity of this appellant on these two premises and we notice that though Asharfi Sah (PW 9) was stating about Rama Shankar Sah having dealt blows on the deceased, on being exhorted by Nathu Sah. Kailash Sah (PW 2) did not assign such role to this appellant, as the prosecution version, about this appellant exhorting the assailant was conspicuously wanting in his evidence. Now. coming to the testimony of PW 1. though we find this witness stating about exhortation made by Nathu, pursuant to which Rama Shankar Sah dealt blows on the chest of the deceased with bhala, attention of this witness had been drawn by the defence, and as the Investigating Officer has not been examined at trial, we feel that narrations made by this witness on this score remained open to question, and if assignment of this role to this appellant about exhortation made, was excluded from consideration, the other role assigned to the appellant about chasing was not of much significance. No witness was stating about this witness having held arms with him, and that apart, even when there was exchange of abuses between the deceased and the appellant, no action is attributed to this appellant about committing any overtact either about assaulting the deceased or taking recourse to any action which can manifest his intention about killing of the deceased, and in this backdrop, we find that Nathu Sah cannot be saddled with accusation of sharing common intention with which the assailant was actuated or animated. In our considered view, Nathu Sah deserves benefit of doubt and as such has to be exonerated of the charges. 16. Notwithstanding that Rama Shankar Sah was assailant of the deceased, he was charged under Section 302/34. IPC along with Nathu Sah. We have noticed that explicit overtact has been attributed to Rama Shankar Sah by eye-witnesses about he being assailant of the deceased and there had been also corroboration of medical evidence about fatal injury inflicted by him. Independentally sufficient in ordinary course of nature to cause death, and hence we record his conviction under Section 302, IPC simpliciter and without multiplying decisions for conversion of conviction under Section 302. IPC. in absence of substantive charge under Section 300. IPC. we may refer to a decision of the Apex Court reported in 2002 (3) East Cr C 212 (SC) : AIR 2002 SC 2945 . Nallabothu Venkaiah v. State of Andhra Pradesh. 17. Having analysed evidences placed on the record and also rival contentions raised at Bar. while we give benefit of doubt to Nathu Sah and acquit him of the charges levelled against him, uphold the findings of guilt recorded by Court below in respect of appellant Rama Shankar Sah. and convict him under Section 302. IPC simpliciter. without altering the sentence imposed against him. Appellant Nathu Sah shall stand discharged from the liability of bail bond. Appeal in respect of Rama Shankar Sah is accordingly dismissed. PRABHAT KUMAR SINHA, J. 18 I agree.