Judgment MADHAVENDRA SARAN, J. 1. This appeal has been preferred against the judgment of conviction and order of sentence dated 12.3.2004 passed by Shri A.K. Jain, Additional Sessions Judge-VI, Siwan, in S. Tr. No. 500/96 arising out of Hussainganj P.S. Case No. 272 of 1995 whereby the appellant Sunain Sah Turha @ Sunainjee Turha has been convicted for the offence under Section 304 Part II (in short as the Penal Code) and sentenced to undergo rigorous imprisonment for seven years. 2. Shortly stated the prosecution case is that on 22.12.1995 at about 11.30 a.m. informant Singari Devi gave her fardbeyan before the police to the effect that on the same day at about 8.00 a.m. her husband Bishram Pandit was irrigating wheat field of one Surendra Sah and the water was flowing through the land of Sudama Sah and the appellant through a nala (drain). Near about 9.00 a.m. appellant Sunain Sah came and asked to stop the machine and he broke the nala and told that water will not flow through his land. A heated exchange took place between the two and thereafter the appellant pressed the neck of Bishram Pandit with force due to which he fell down and became unconscious. The informant came there making noise on which several persons reached there and saw that the husband of informant was dead. On seeing the people coming the appellant left the scene and fled away. It is said that Surendra Sah Turha and other persons witnessed the occurrence. On the basis of fardbeyan of the informant, the police registered Hussainganj P.S. Case No. 272/95 dated 22.12.1995 under Section 302 of the Penal Code and after concluding investigation submitted charge-sheet on the basis of which the learned Chief Judicial Magistrate, Siwan by order dated 20.5.1996 took cognizance. The case was latter on committed to the Court of Session. After trial the appellant was convicted and sentenced as mentioned above. Against the said conviction and sentence the appellant has preferred the present appeal before this Court. 3. The defence of the appellant was total denial of the alleged occurrence and false implication of the case. 4. In support of the charge, the prosecution examined in all seven witnesses who are PW 1 Vijay Pandit, PW 2 Urmila Devi, PW 3 Jagarnath Pandit, PW 4 Dr. 3. The defence of the appellant was total denial of the alleged occurrence and false implication of the case. 4. In support of the charge, the prosecution examined in all seven witnesses who are PW 1 Vijay Pandit, PW 2 Urmila Devi, PW 3 Jagarnath Pandit, PW 4 Dr. Bikram Singh Chauhan, PW 5 Singari Devi (Informant), PW 6 Shankar Mishra and PW 7 Jugal Kishore Prasad. 5. PW 1 stated before the Court that on 22.12.1995 at about 9.00 a.m. he was going to see his field and when he reached near the door of Bishram Pandit he found that his boring machine was in operation. He also found that an altercation was going on between Bishram Pandit and Sunain Jee Turha. According to this witness Sunain Jee Turha pressed the neck of Bishram Pandit who became senseless and fell down. This witness went near Bishram Pandit and found him dead. Accused thereafter fled away from the scene of occurrence. In cross examination at paragraph-8 this witness stated that he found mark of swelling on the neck of the deceased. He also found abrasion on the neck. 6. PW 2 Urmila Devi is daughter of the deceased. She deposed before the Court that it was 9.00 a.m. when she was standing at the door of her house. Her father Bishram Pandit was also there when accused Sunain Sah Turha came and asked her father to stop the boring. He also demolished the drain and told that water will not pass through his field. A quarrel took place and thereafter near the boring Sunain Jee Turha pressed the neck of her father due to which he died. In cross examination this witness stated that the occurrence took place at a distance of 10 to 15 steps from the house. 7. PW 3 narrated the incident and stated before the Court that he was coming back after watching his maize field. He saw an altercation going on between Sunain Jee Turha and Bishram Pandit near the boring, Sunain Jee Turha pressed the neck of Bishram Pandit who died instantly. 8. PW 5 is the wife of deceased Bishram Pandit. She is also the informant of this case. She stated before the Court that she was standing at the door of her house. Her husband started the boring. The field of Surendra Sah was being irrigated. 8. PW 5 is the wife of deceased Bishram Pandit. She is also the informant of this case. She stated before the Court that she was standing at the door of her house. Her husband started the boring. The field of Surendra Sah was being irrigated. The water was flowing through the field of accused Sunain Sah Turha. At about 9.00 a.m. the accused came and demolished the drain and also told that water will not pass through his field. A quarrel between her husband and accused took place and thereafter the accused pressed the neck of her husband who fell down, became senseless and died. The police came at 11.00 a.m. and recorded her fardbeyan. 9. PWs 6 and 7 are the two police officers who participated in the investigation. PW 6 recorded the fardbeyan of the informant which has been marked as Ex-hibit-2. Formal FIR is Exhibit-3. It appears that PW 7 after concluding investigation submitted charge-sheet. 10. PW 4 Dr. Bikram Singh Chauhan on 22.12.1995 was posted as Civil Assistant Surgeon at Sadar Hospital, Siwan. On the same day at about 3.15 p.m. he examined Bishram Pandit and found the following : External injuryPeripheral synosis in all the fingers and toes. No other external injury was found. Internal Injury(a) Neck-fracture of hyoid bone and thyroid cartilage (b) Trachea congested (c) Lung congested with petichial haemorrhage. Cause of deathAsphyxia caused by throttling may be by pressing the neck by hands. Time since death within 24 hours. The post mortem report is Exhibit-1. 11 It appears that the appellant in defence examined one witness named Ganesh Prasad Sah (DW 1) who stated that Rajesh used to work as compounder of Dr. Bikram Singh Chauhan. 12. It has been contended by learned amicus curiae appearing on behalf of the appellant that Surendra Sah whose name is mentioned in the First Information Report as the person who had seen the occurrence but he was not examined by the prosecution during trial. He further contended that Rajesh Kumar who is compounder of PW 4 Dr. Bikram Singh Chauhan and also relative of deceased fabricated the post-mortem report in collusion with the doctor with a purpose to falsely implicate the appellant in the present case. He also drew attention of the Court towards some contradictions appearing in the evidence of prosecution witnesses 13. He further contended that Rajesh Kumar who is compounder of PW 4 Dr. Bikram Singh Chauhan and also relative of deceased fabricated the post-mortem report in collusion with the doctor with a purpose to falsely implicate the appellant in the present case. He also drew attention of the Court towards some contradictions appearing in the evidence of prosecution witnesses 13. It is the prosecution case that at about 9.00 a.m. when informants husband was irrigating wheat field of one Surender Sah, the appellant arrived and asked him to stop the boring machine and also uttered that water will not flow through his land. He also broke the drain. Exchange of hot words took place between them and thereafter the appellant pressed the neck of informants husband who became senseless, fell down and died. The police arrived at the scene of occurrence and recorded the fardbeyan of the informant at 11.30 a.m. PW 4 performed the post mortem examination on the dead body of Bishram Pandit on the same day at 3.15 p.m. at Sadar Hospital, Siwan and found fracture of hyoid bone and thyroid cartilage. He observed that the death took place due to asphyxia, caused by throttling. There is consistent evidence of PWs 1, 2, 3 and 5 that after some altercation the appellant pressed the neck of Bishram Pandit forcibly as a result of which he became senseless and died. It has to be kept in mind that improvement or contradiction are invariably found in the testimony of even wholly truthful witnesses when they are made to depose of the occurrence after gap of about one or two years, capacity of a human brain to retain minute of the occurrence varies from man to man. From the evidence of prosecution witnesses it is clear that the alleged incident took place near the boring of deceased Bishram Pandit. It is also clear that after some exchange of words the appellant pressed the neck of the deceased as a result of which he died. The evidence of doctor supports the prosecution case. 14. After examining the evidence this Court is now in a position to say that the findings recorded by the trial Court are not erroneous and contrary to the evidence on record. The view taken by the trial Court in convicting the appellant under Section 304 Part II of the Penal Code is quite reasonable. 14. After examining the evidence this Court is now in a position to say that the findings recorded by the trial Court are not erroneous and contrary to the evidence on record. The view taken by the trial Court in convicting the appellant under Section 304 Part II of the Penal Code is quite reasonable. The trial Court, therefore, has rightly convicted the appellant. This Court also finds from the evidence on record that though there was no intention on the part of the appellant to cause the death but the act was done with the knowledge that the same is likely to cause death. 15. Now coming to the question of sentence this Court finds that the sentence awarded to the appellant is not excessive one. 16. In the facts and circumstances of the case, the judgment of conviction and sentence passed by the trial Court is hereby affirmed. The appeal is accordingly dismissed. Appeal accordingly dismissed.