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2017 DIGILAW 228 (ALL)

BIJENDRA v. STATE OF U. P.

2017-01-17

ARVIND KUMAR MISHRA I, BALA KRISHNA NARAYANA

body2017
JUDGMENT : (Delivered by Hon'ble Bala Krishna Narayana, J.) 1. Accused-appellant Bijendra has preferred this appeal u/s 374 (2) of Cr.P.C. against the judgment and order dated 23.3.1993 passed by Special Judge Muzaffarnagar in S.T. No. 328 of 1982, State Vs. Bijendra, convicting the accused-appellant u/s 302/34 I.P.C. and sentencing him to rigorous imprisonment for life. 2. The prosecution story as unfolded by the written report of the incident (Ext.Ka.1) and as testified later by the prosecution witnesses of fact produced during the trial is that while P.W.1 Tahir and his uncle Abdul Aziz on their way to Khadar on 13.1.1992 where they were going to recover their amount which was due to them form certain persons in connection with the sale of their cattle, were passing through the jungle of Kanawali at about 1:30 P.M., three persons armed with lathi, danda, tabal and country-made pistol stopped Abdul Aziz (deceased) and P.W.1 Tahir and asked them to part with all their belongings forthwith on which Abdul Aziz, who had recognised one of them as Bijendra exclaimed that why he was behaving with him in such a manner despite being his old acquaintant. On being recognised, accused-appellant Bijendra exhorted his other two companions to kill Abdul Aziz. Immediately after the extortion, accused-appellant Bijendra struck a lathi blow on Aziz but somehow P.W.1 Tahir managed to escape from the scene of occurrence, raising cries for help. In the meantime, the remaining two unknown accused also started beating Abdul Aziz. Hue and cry raised by P.W.1 Tahir attracted P.W.2 Yasin, P.W.3 Riyasat Ali, Qasim and many other persons to the place of occurrence who witnessed the same. The accused ran away, leaving Abdul Aziz in an injured condition. P.W.1 Tahir arranged a buffalo cart from nearby village Yogendra Nagar and put the injured Abdul Aziz into the buffalo cart with the help of P.W.2 Yasin, P.W.3 Riyasat Ali and Qasim for taking him to the hospital. However, Abdul Aziz succumbed to the injuries received by him at the hands of the accused-appellant and his two companions on way to the hospital at village Sikri. However, Abdul Aziz succumbed to the injuries received by him at the hands of the accused-appellant and his two companions on way to the hospital at village Sikri. Leaving behind the dead body of his uncle Abdul Aziz at the "chaupal" of village Sikri, P.W.1 Tahir went to his village and returned from there, with the village Pradhan back to the place where he had left the dead body of the deceased in the custody of P.W.2 Yasin, P.W.3 Riyasat Ali and Qasim from where he went to P.S. Bhopa and on his dictation, one Mohd. Nadim, S/O Israt, scribed the written report of the incident (Ext.Ka.1) outside the P.S. Bhopa which was lodged by him at the same police station on 13.1.1992 at 7:45 P.M. P.W.4 Head Moharrir Harsaran Sharma on the basis of the written complaint (Ext.Ka.1) registered the case at crime no. at 18 of 1992 at 7:45 P.M. against accused-appellant Bijendra and his two other unknown companions. P.W.4 Head Moharrir Harsaran Sharma noted extract of the F.I.R. (Ext.Ka.2) in the G.D. (Ext.Ka.3). 3. P.W.7 S.O. Manoj Kumar Kaushik started the investigation of the case on 13.1.1992. He recorded the statements of P.W.4 Head Moharrir Harsaran Sharma, P.W.1 Tahir, P.W.2 Yasin, P.W.3 Riyasat Ali, Qasim and Nadim etc. On 14.1.1992, P.W.7 S.O. Manoj Kumar Kaushik visited the place of occurrence and prepared the site plan (Ext.Ka.11). He collected blood stained and plain earth from the scene of occurrence and prepared recovery memo (Ext.Ka.12). He sealed the blood stained and plain earth in two different packets. The same were produced during the trial and marked as material (Ext.Ka7 and Ext.Ka8). 4. Inquest on the cadaver of deceased Abdul Aziz was conducted on 14.1.1992 by P.W.5 S.I. Madan Lal Sharma prepared the inquest report of the deceased (Ext.Ka.4), letters addressed to R.I. (Ext.Ka.9 and Ext.Ka.7), letter addressed to C.M.O (Ext.Ka.8) and the diagram of the dead body of the deceased (Ext.Ka.5). After concluding the inquest, P.W.5 S.I. Madan Lal Sharma put the dead body in a sealed cover and handed over the same to Constables Omprakash and Rajeshwar Prasad under challan (Ext.Ka.6) for being taken to the hospital for conduction of postmortem. 5. The postmortem on the dead body of the deceased Abdul Aziz was conducted by P.W.6 Dr. After concluding the inquest, P.W.5 S.I. Madan Lal Sharma put the dead body in a sealed cover and handed over the same to Constables Omprakash and Rajeshwar Prasad under challan (Ext.Ka.6) for being taken to the hospital for conduction of postmortem. 5. The postmortem on the dead body of the deceased Abdul Aziz was conducted by P.W.6 Dr. Ashok Kumar Jain on 14.1.1992 at 4 P.M. On external examination, the P.W.6 found that deceased was aged about 55 years and had died about half a day back. The deceased was a man of average built. His hair was grey. Rigor mortis was present all over the body. On internal dissection, P.W.6 noted following anti-mortem injuries on the body of deceased Abdul Aziz:- Terminal phalanx of right little finger amputated. L.W. 1/2cm x 1/2cm x muscle over down of right hand. L.W. 3cm x 1cm x through & through over upper top. L.W. 2cm x 1cm x muscle below left nostril. L.W. 5cm x 2cm x bone over right eye-brow underlying skull fractured. L.W. 4cm x 1.5cm x bone over forehead in midline near hairline. L.W. 2cm x 1/2cm x bone x 1.5cm above left eye brow. Multiple L.Ws. In an area 13cm x 12cm x bone over right occipital area & left ear also torn. Multiple L.W. In an area 18cm x 11cm x bone covering parts of right & left parietal area. Both frontal bones, right parietal and adjoining area of right temporal bone fractured. 6. In the opinion of P.W.6 Dr. A.K. Jain, who had prepared the postmortem report of the deceased (Ext.Ka.10), Abdul Aziz, he had died as a result of shock due to anti-mortem head injuries. 7. After concluding the investigation, P.W.7 S.O. Manoj Kumar Kaushik submitted chargesheet (Ext.Ka.13) against the accused Bijendra. 8. Since the offence mentioned in the chargesheet was triable exclusively by a Court of Session, the concerned Chief Judicial Magistrate committed the case for trial of the accused to the Court of Sessions Judge, Muzaffarnagar where it was registered as S.T. No. 328 of 1992, State Vs. Bijendra and made over for trial to the Court of Special Judge, Muzaffarnagar. The learned Special Judge, Muzaffarnagar, after hearing the accused on the point of charge, on the basis of material on record, framed charge u/s 302/34 I.P.C against accused-appellant no.1, who pleaded not guilty and claimed trial. 9. Bijendra and made over for trial to the Court of Special Judge, Muzaffarnagar. The learned Special Judge, Muzaffarnagar, after hearing the accused on the point of charge, on the basis of material on record, framed charge u/s 302/34 I.P.C against accused-appellant no.1, who pleaded not guilty and claimed trial. 9. The prosecution, in order to prove its case against accused-appellant, examined as many as seven witnesses, of whom P.W.1 Tahir, P.W.2 Yasin, P.W.3 Riyasat Ali were examined as eye witnesses of the occurrence while P.W.4 Head Moharrir Harsaran Sharma, P.W.5 S.I. Madan Lal Sharma, P.W.6 Dr. Ashok Kumar Jain and P.W.7 S.O. Manoj Kumar Kaushik were produced as formal witnesses. 10. The accused-appellant in his statement recorded u/s 313 Cr.P.C., alleged that a false report had been lodged against him. He further stated that one Surat Singh, S/O Harchand, R/O village Yogendra Nagar who was litigating against his uncle Kanak Singh was inimical towards him. It was at his instance that P.W.1 and other witnesses of the incident had falsely implicated him in the present case. The accused-appellant filed certified copy of plaint of original suit number 53/91-92 instituted by Surat Singh against Kanak Singh u/s 229B of U.P. Z.A. & L.R. Act ( Ext.Kha.1). The accused-appellant however did not lead any oral evidence in his defence. 11. The learned Special Judge, after considering the submissions advanced before him by the learned counsel for the parties and scrutinising the evidence on record, both oral and documentary, convicted the accused-appellant u/s 302/34 I.P.C and awarded him the aforesaid sentence. Hence this appeal. 12. Sri Ambrish Kumar, appearing as Amicus Curiae on behalf of appellant Bijendra castigated the prosecution story on the ground that no man of even ordinary prudence in the normal course of human behaviour or in his normal senses would dare to rob a person who is previously acquainted to him, in broad daylight without making any effort to conceal his face and it is apparent that the complainant and the other two witnesses who were produced by the prosecution to prove the charge against accused-appellant at the trial had given false evidence against him at the behest of Surat Singh, who was involved in civil litigation with the accused-appellant. He next submitted that the testimony of P.W.1 Tahir was liable to be discarded by the Trial Court on the ground of his being a close relative of the deceased and hence being an interested witness whereas the presence of P.W.2 and P.W.3 at the place of occurrence at the time of incident, who are chance witnesses, is highly unnatural and doubtful and thus the reliance placed by the Trial Court on the evidence of P.W.1 and P.W.3 for the purpose of convicting the accused-appellant after disbelieving the evidence of P.W.2 rightly on the ground that his presence at the time and place of occurrence was extremely doubtful and per-se illegal and unwarranted. He also submitted that the medical evidence on record does not fully corroborate the ocular version. There is an inordinate and unexplained delay on the part of the complainant in lodging the F.I.R. The F.I.R. in this case is ante-timed. Investigation in this case was faulty and unfair. Such being the state of evidence, the recorded conviction of the accused-appellant and the sentence awarded to him cannot be sustained and are liable to be set-aside. The impugned judgment and order which suffers from errors of facts and law cannot be sustained and are liable to be set-aside. 13. Per contra Sri J.K. Upadhyay, learned AGA submitted that P.W.1 Tahir in his evidence recorded before the Trial Court fully supported the prosecution case as spelt out in the F.I.R. which was corroborated in all material particulars by P.W.3 Riyasat Ali in his evidence tendered during the trial. There is no major discrepancy in the medical evidence vis-a-vis the ocular testimony. The conviction of the accused-appellant recorded by the Trial Court is based upon cogent evidence and the sentence awarded to him is supported by relevant considerations. The presence of both the eye-witnesses, P.W.1 and P.W.3, at the place of incident and their having witnessed the crime, is fully established. The impugned judgment and order do not suffer from any illegality or infirmity, requiring any interference by this Court. 14. The only question which arises for our consideration in this appeal is that whether the prosecution has been able to prove its case against the accused-appellant beyond all reasonable doubts or not. 15. The impugned judgment and order do not suffer from any illegality or infirmity, requiring any interference by this Court. 14. The only question which arises for our consideration in this appeal is that whether the prosecution has been able to prove its case against the accused-appellant beyond all reasonable doubts or not. 15. The record shows that the prosecution in order to establish the charge framed against accused-appellant had examined seven witnesses, of whom P.W.1 Tahir, P.W.2 Yasin and P.W.3 Riyasat Ali were examined as eye-witnesses of the occurrence. Besides Dr. A.K. Jain, who was examined by the prosecution as P.W.6 proved the postmortem report (Ext.Ka.10). P.W.5 S.I. Manoj Kumar Sharma proved the inquest report (Ext.Ka.4), letters addressed to R.I., CMO photo lash and challan lash as (Ext.Ka.5, 6, 7, 8 & 9). P.W.4 Head Moharrir Harsaran Sharma proved the check F.I.R. (Ext.Ka.2) and the relevant G.D. Entry (Ext.Ka.3). P.W.7 S.O. Manoj Kumar Sharma proved the Recovery Memo of recovery of plain and blood stained earth from the crime scene, site plan of the place of the incidence and the chargesheet (Ext.Ka.12,11 and13 respectively). 16. Before proceeding to analyse the oral evidence on record, we consider it appropriate to first adjudicate upon the objection raised by the learned counsel for the appellant that the evidence of P.W.1 Tahir is liable to be discarded on the ground of his being a close relative of the deceased and hence highly interested in seeing the accused-appellant convicted for the murder of his uncle Abdul Aziz. 17. The aforesaid issue is no longer res integra but has been settled by a catena of discussions of the Apex Court. 18. On the point of interested witnesses, the Hon'ble Supreme Court in State of U.P. v. Jagdeo, 2003 Cr LJ 844 (SC) observed that only on the ground of interested or related witnesses, their evidence cannot be discarded. 19. Hon'ble Supreme Court in Waman and others v. State of Maharashtra, 2011 Cr LJ 4827 has observed in paragraph No. 9 which reads as follows: "In Balraje @ Trimbak v. State of Maharashtra, 2010 (70) ACC 12 (SC), this Court held that mere fact that the witnesses were related to the deceased cannot be a ground to discard their evidence. Hon'ble Supreme Court in Waman and others v. State of Maharashtra, 2011 Cr LJ 4827 has observed in paragraph No. 9 which reads as follows: "In Balraje @ Trimbak v. State of Maharashtra, 2010 (70) ACC 12 (SC), this Court held that mere fact that the witnesses were related to the deceased cannot be a ground to discard their evidence. It was further held that when the eye-witnesses are stated to be interested and inimically disposed towards the accused, it has to be noted that it would not be proper to conclude that they would shield the real culprit and rope in innocent persons. The truth or otherwise of the evidence has to be weighed pragmatically and the Court would be required to analyse the evidence of related witnesses and those witnesses who are inimically disposed toward the accused. After saying so, this Court held that if after careful analysis and scrutiny of their evidence, the version given by the witnesses appears to be clear, cogent and credible, there is no reason to discard the same." 20. Thus what follows from reading of the aforesaid law reports is that relationship cannot be a factor to affect the credibility of a witness. The evidence of a witness cannot be discarded solely on the ground of his relationship with the victim of the offence. The plea relating to relatives' evidence remains without any substance in case the evidence has credence and it can be relied upon. In such a case the defence has to lay foundation if plea of false implication is made and the Court has to analyse evidence of related witnesses carefully to find out whether it is cogent and credible. The same view has been reiterated in State of U.P. v. Naresh and others, 2011 (75) ACC 215 (SC). 21. We now proceed to assess and appraise the ocular evidence of P.W.1 Tahir and P.W.3 Riyasat Ali excluding that of P.W.2 Yasin which had been rightly excluded by the Trial Court from consideration. 22. P.W.1 in his evidence recorded before the Trial Court, has deposed that on the date and at time of occurrence, he along with his uncle Abdul Aziz was passing through the jungle of Yogendra Nagar while on way to Khadar to realise their money from certain persons. 22. P.W.1 in his evidence recorded before the Trial Court, has deposed that on the date and at time of occurrence, he along with his uncle Abdul Aziz was passing through the jungle of Yogendra Nagar while on way to Khadar to realise their money from certain persons. They were stopped by three persons near village Kanawali, armed with lathis, tabal and country-made pistol and asked by them to hand over their belongings to them. He further stated that after his uncle Abdul Aziz recognized one of the culprits as accused-appellant Bijendra and requested him to desist from robbing him as both of them were familiar and known to each other, accused-appellant Bijendra exhorted his companions not to spare Abdul Aziz as he had recognised him whereupon accused-appellant Bijendra and his two companions started beating Abdul Aziz with lathis, tabal, etc. In the meantime, P.W.1 managed to run away from the scene of occurrence, raising shouts of help which attracted the attention of P.W.2 Yasin, P.W.3 Riyasat Ali, Qasim and several other persons who upon coming to know about the occurrence, immediately rushed to the crime scene together with P.W.1 and on reaching there, he as well as the witnesses, witnessed the accused-appellant Bijendra and his associates beating his uncle Abdul Aziz. 23. It is noteworthy that P.W.1 was cross-examined at great length but he remained consistent throughout on the fact that he was present at the place of incident at the time his uncle was severely beaten by the accused-appellant and his companions. He consistently stated that the accused-appellant Bijendra was known to him since before the occurrence and neither accused-appellant nor his other companions had covered their faces. It is also significant to state that there is nothing in the evidence of P.W.1 which may discredit his testimony or even remotely suggest that he was not present at the scene of occurrence along with Abdul Aziz when the accused started beating Abdul Aziz with lathis, tabal, etc. Thus, the presence of P.W.1 Tahir at the time and place of occurrence is established beyond any shadow of doubt. No suggestion of any previous enmity between him and the accused-appellant Bijendra or any other reason was suggested to P.W.1 Tahir to show that either P.W.1 was inimical towards the accused-appellant or he harboured any animosity towards him. Thus, the presence of P.W.1 Tahir at the time and place of occurrence is established beyond any shadow of doubt. No suggestion of any previous enmity between him and the accused-appellant Bijendra or any other reason was suggested to P.W.1 Tahir to show that either P.W.1 was inimical towards the accused-appellant or he harboured any animosity towards him. Although a faint suggestion of false implication of the accused-appellant Bijendra in the present case at the behest of one Surat Singh, resident of Yogendra Nagar, with whom Kanak Singh, real uncle of the accused-appellant Bijendra was litigating was given by the defence counsel to P.W.1 but P.W.1 denied the same by deposing that he neither knew Surat Singh of Yogendra Nagar nor he had any knowledge about the pending litigation between Surat Singh and accused-appellant's uncle. 24. P.W.3 Riyasat Ali has corroborated the testimony of P.W.1 Tahir in all material particulars including place, time and manner of assault, identity of the accused and the weapons used by the accused in assaulting the deceased. The total assessment of the testimony of P.W.3 Riyasat Ali leads to the conclusion that he was present at the time of occurrence at the place of incident and he had a fair opportunity to identify the accused at the scene of occurrence. His testimony does not suffer from any material infirmity which may discredit him or render his evidence unreliable. 25. It is true that there are certain contradictions in the statements of P.W.1 and P.W.3, which have been referred to and dealt with by the Trial Court in paragraphs 18,19 and 20 on pages 13,14 and 15 of its impugned judgment but which on a careful and critical appraisal do not appear either to effect the core of the prosecution case or in any way discredit the testimony of the P.W.1 and P.W.2 with regard to the time, place and manner of assault, identity of the accused and weapons used. The contradictions pointed out by learned counsel for the appellant in the statements of P.W.1 Tahir and P.W.3 Riyasat Ali refer to the post-incident conduct of the witnesses. Inconsistencies in the testimony of P.W.1 and P.W.3 highlighted by the learned counsel for the appellant can be attributed to lapse of memory. 26. The contradictions pointed out by learned counsel for the appellant in the statements of P.W.1 Tahir and P.W.3 Riyasat Ali refer to the post-incident conduct of the witnesses. Inconsistencies in the testimony of P.W.1 and P.W.3 highlighted by the learned counsel for the appellant can be attributed to lapse of memory. 26. P.W.3 has deposed that on hearing the alarm raised by P.W.1 Tahir that his uncle was being killed, he had immediately rushed towards the scene of occurrence and on reaching there, he had seen three persons including accused-appellant Bijendra, beating Abdul Aziz by lathi, tabal and danda. In his cross-examination, he has remained consistent throughout about the details of the occurrence, especially with reference to his prior acquaintance with accused-appellant Bijendra, whom he had seen at the place of occurrence. He had also stated the purpose of his visit while passing through jungle of village Kanawali. 27. Upon a careful appraisal and scrutiny of the testimony of P.W.1 Tahir and P.W.3 Riyasat Ali, we find that both these witnesses have substantially and consistently corroborated the prosecution story in all material particulars. 28. Learned counsel for the appellant has also argued that the F.I.R. in this case (Ext.Ka.1) is an ante-timed and fabricated document. Learned counsel for the appellant has invited the attention of this Court to the over-writing discernible in Column No. 1 of the check F.I.R. (Ext.Ka.2) by which figure 9 appears to have been over-written after the figure 1 and letter 'P' has been over-written over the letter 'A' and submitted that the F.I.R. of the incident was actually lodged at 1:45 A.M. but later its time was altered to 19:45 P.M. by resorting to over-writing. There does not appear to be any merit in the aforesaid submission of the learned counsel for the appellant. P.W.4 Harsaran Sharma in his evidence has admitted over-writing in Column No.1 after the figure 9 and that formerly the time of the registration of the case was written as A.M. Letter 'P' was over-written over the letter 'A'. P.W.4 attributed the aforesaid errors to clerical mistakes which he had corrected by over-writing over the figure 9 and letter 'A'. The explanation furnished by P.W.4 appears to us to be satisfactory and convincing. P.W.4 attributed the aforesaid errors to clerical mistakes which he had corrected by over-writing over the figure 9 and letter 'A'. The explanation furnished by P.W.4 appears to us to be satisfactory and convincing. Moreover there is no over-writing in the extract of G.D. (Ext.Ka.3) which shows that the F.I.R. was registered at 19:45 P.M. Besides the inquest report (Ext.Ka.4) also indicates the time of the F.I.R as 19:45 P.M on 13.1.1992. There is no over-writing in the time of the F.I.R in the inquest report. The F.I.R accompanied the papers which were forwarded to the medical officer along with the dead body of the deceased. Thus, the over-writings in the F.I.R do not affect the credibility of the prosecution case. 29. Another circumstance which had been relied upon by learned counsel for the appellant in support of his contention that the F.I.R in this case is ante-timed is that P.W.4 Harsaran Sharma had admitted in his evidence that no F.I.R was registered by P.W.4 after the check F.I.R (Ext.Ka.2) on the basis of written report of the (Ext.Ka.1) was registered and hence there was a strong possibility of the F.I.R being ante-timed. The aforesaid submission of the learned counsel for the appellant is also bereft of any merit. P.W.4 Harsaran Sharma was cross-examined by the defense counsel at great length, but he could not elicit anything from him which could even remotely suggest that the F.I.R in this case was not registered at the time recorded in the check F.I.R. and the G.D. Thus, in view of the above it is not proved that F.I.R. in this case was ante-timed. 30. The prosecution case has also been castigated by the learned counsel for the appellant on the ground of there being an inordinate and unexplained delay on the part of P.W.1 in lodging the F.I.R. of the incident. 31. Record shows that the occurrence had taken place on 13.1.1992 at about 13:30 hours in the jungle of village Yogendra Nagar, Kanha Wali. The F.I.R of this case was registered on the same day at 19:45 hours at P.S. Bhopa. The distance between the place of occurrence and the P.S. Bhopa is about 17 kilometers. At first glance, the F.I.R in this case may appear to be belated. The F.I.R of this case was registered on the same day at 19:45 hours at P.S. Bhopa. The distance between the place of occurrence and the P.S. Bhopa is about 17 kilometers. At first glance, the F.I.R in this case may appear to be belated. But the delay in lodging the F.I.R has been satisfactorily explained by P.W.1 in his evidence tendered before the Trial Court which finds further corroboration from the testimony of P.W.3. A careful perusal of the evidence of P.W.1 and P.W.3 indicates that after the incident, they went to village Yogendra Nagar which was at a distance of 3-4 km from the crime scene from where they brought a buffalo cart in which they took the injured Abdul Aziz to the chaupal of village Sikri where Abdul Aziz died. After the death of Abdul Aziz P.W.1 Tahir went to his village Behra Thuru and returned from there to village Sikri with a tractor trolley by which he went to P.S. Bhopa to lodge the F.I.R. 25. Thus, it is established from the evidence of P.W.1 and P.W.3 and the facts and circumstances of this case that there was no unreasonable delay in lodging the F.I.R of the incident. 32. The conviction of the accused-appellant in this case has also been challenged by the learned counsel for the appellant on the ground that the investigation in this case was faulty and unfair which seriously prejudiced the cause of accused-appellant. The investigating officer of this case, P.W.7 Manoj Kumar Kaushik did not send blood stained and plain earth to the chemical analyst for obtaining test report. The documents prepared during the inquest including the photo lash (Ext.Ka.5) and challan lash (Ext.Ka.6) did not bear the number of the case crime and names of the accused, indicating that the F.I.R was not in existence till the time when these papers were prepared. 33. There is no force in the aforesaid submission of the learned counsel for the appellant inasmuch as the inquest report (Ext.Ka.4) not only bears the case crime number but also the sections of the I.P.C under which the case was registered. 34. The omission to mention crime number on Ext.Ka.5 and Ext.Ka.6 does not constitute a material infirmity and does not in any manner discredit the prosecution case. 34. The omission to mention crime number on Ext.Ka.5 and Ext.Ka.6 does not constitute a material infirmity and does not in any manner discredit the prosecution case. Moreover, after thoroughly examining the record, we do not find that the investigation in this case suffers from any material illegality, irregularity or infirmity. After going through the statements of the P.W.4 Harsaran Sharma, P.W.5 S.I. Madan Lal and P.W.7 S.O. Manoj Kumar Kaushik, the investigating officer of the case, their evidence appears to be quite dependable. No instance of any unfairness on the part of the investigating officer has been pointed out. The failure of the investigating officer to send blood stained and plain earth to the forensic expert cannot be a ground to doubt the place of occurrence mentioned in the F.I.R. in the face of the clinching evidence on record, both oral and circumstantial, to establish the place of occurrence. There is consistent oral testimony of P.W.1 and P.W.3 to the effect that the accused Bijendra and his two unknown companions had assaulted Abdul Aziz with lathi, danda, tabal and caused injuries to him as a result of which Abdul Aziz became unconscious in the jungle of Kanha Wali and later succumbed to his wounds. 35. On a wholesome and critical assessment, the evidence on record, both ocular and medical appears to be worthy of belief which establishes the charge levelled against the accused-appellant Bijendra u/s 302 read with Section 34 I.P.C. beyond reasonable doubt. The learned Trial Judge did not commit any illegality in convicting the accused-appellant for the offence u/s 302 I.P.C. and awarding life sentence to him. The recorded conviction of the appellant and the sentence awarded to him warrants no interference by this Court. 36. This appeal lacks merit and is accordingly dismissed. 37. There shall however be no order as to costs.