JUDGMENT : ARVIND KUMAR MISHRA-I, J. 1. By way of instant appeal, challenge has been made to the validity and sustainability of the judgment and order of conviction dated 05.08.1991 passed by the V-Additional Sessions Judge, Azamgarh, in Session Trial No.63 of 1988 State Vs. Sheo Lochan and others, arising out of Case Crime No.34 of 1987 under Sections 304 read with Section 34 I.P.C., Police Station-Kopaganj, District-Azamgarh, whereby the accused appellants have been sentenced to undergo ten years rigorous imprisonment coupled with fine Rs.500/each, in default of payment of fine, they will have to undergo additional two months imprisonment. 2. Heard Sri Sanjay Kumar Singh, learned amicus curiae for the appellants, Sri Om Narain Tripathi assisted by Sri Subhash Chandra Dubey, learned A.G.As. for the State and perused the record. 3. The prosecution story as unfolded from the record appears to be that the informant PW1 Ram Briksha Rajbhar lodged the oral report at Police Station Kopaganj, District Azamgarh on 15.03.1987 at 9:20 p.m. with the averments that the accused appellants came to the door of Tufani, uncle of the informant around 7 p.m. on 15.03.1987 and started abusing Tufani due to which objection was raised whereupon the accused-appellants started assaulting Tufani with Lathi and Danda and after hearing noise, Sati Ram and Raghunath arrived on the spot and intervened but the accused-appellants kept on beating Tufani till he fell down on the ground in unconscious state. Upon arrival of a number of villagers and the informant, the accused-appellants made their escape good. 4. The first information report was lodged at 9:20 p.m. on the day of the occurrence i.e. 15.03.1987. This case was noted in the Check FIR at Case Crime No.34 of 1987 under Section 308 IPC, Police Station Kopaganj, District Azamgarh and relevant entries were made in the concerned general diary whereby the case was also registered against the accused-appellants under aforesaid section of IPC at aforesaid case crime number at aforesaid police station. 5. However, the record reflects that during course of the night subsequent to the lodging of the first information report, the injured was taken to the Primary Heath Centre, Kopaganj, the very same day where he was examined by Dr. C. Rai PW6 at 10:00 p.m. wherein the following injuries were noted on the person of Tufani: 1. 5. However, the record reflects that during course of the night subsequent to the lodging of the first information report, the injured was taken to the Primary Heath Centre, Kopaganj, the very same day where he was examined by Dr. C. Rai PW6 at 10:00 p.m. wherein the following injuries were noted on the person of Tufani: 1. Lacerated wound 4 cm x 1.5 cm x bone deep on the back of right side scalp, 7 cm back of right ear, clotted blood present. 2. Lacerated wound 4 cm x 1 cm x bone deep on the mid of scalp, 10 cm above right ear, clotted blood present. 3. Lacerated wound on the base of right ear 1 cm x 1/3 cm x 1/4 cm deep, clotted blood present. 4. Upper left incisor tooth broken out from socket. Bleeding present. 5. Contusion on right upper arms 6 cm x 3 cm, 11 cm above elbow joint. 6. The state of the injured Tufani was unconscious and was not responding to any stimuli. All injuries were kept under observation and the injured was referred to the district hospital, Azamgarh. 7. It is further gathered that during course of the treatment of the injured Tufani and the investigation, the injured Tufani succumbed to his injuries around 1:00 a.m. on 16.03.1987. Therefore, the case was altered from Section 308 I.P.C. to Section 304 I.P.C. and the Investigating Officer along with police personnel conducted inquest of the deceased Tifani on 16.03.1987 at P.H.C. Kopaganj. Inquest report is Ext. Ka4. 8. In the opinion of the prosecution witnesses and the Investigating Officer, it was thought proper to send the body for post mortem examination in order to ascertain cause of death of the deceased Tufani. Thereafter, relevant papers were prepared and the body of the deceased was sent to mortuary Azamgarh for conduction of post mortem examination. Post mortem examination was conducted by Dr. Abdul Haleem PW5 on 17.03.1987 at 3.00 p.m. wherein the following ante mortem injuries were noted by the doctor: 1. One stitched lacerated wound 3 cm x 0.5 cm x bone deep on right side of head, 15 cm above middle of right eyebrow. 2. One stitched lacerated wound 3 cm x 0.5 cm x bone deep on the right side of back of head, 8 cm to right ear. 3. One stitched lacerated wound 3 cm x 0.5 cm x bone deep on right side of head, 15 cm above middle of right eyebrow. 2. One stitched lacerated wound 3 cm x 0.5 cm x bone deep on the right side of back of head, 8 cm to right ear. 3. One contusion 8 cm x 6 cm on the back side of head, 10 cm above middle of left eyebrow. 9. In the opinion of doctor, duration between the time of death and post mortem examination was noted about one day and cause of death was described as coma due to ante mortem injuries. Dr. Abdul Haleem PW5 has proved post mortem examination report as Ext. Ka13. 10. During course of the investigation, the Investigating Officer Gyanendra Nath PW4 recorded statement of various prosecution witnesses and prepared memo of blood stained Kathari Ext. Ka10, obtained copy of the post mortem examination report Ext. Ka13 and prepared site plan of the place of occurrence Ext. Ka2 on 17.03.1987. After completing the investigation, charge sheet Ext. Ka12 was filed by the Investigating Officer against the accused appellants. 11. Pursuant thereto, proceedings were committed to the court of Sessions from where it was transferred for conduction and disposal of the case to the trial court of IV-Additional Sessions Judge, Azamgarh who in turn heard both the sides on point of charge and was prima-facie satisfied with the case against the accused-appellants, accordingly, framed charge under Section 304 read with Section 34 IPC. Charge was read over and explained to the accused-appellants who abjured the charge and opted for trial. 12. In turn the prosecution was required to adduce its testimony. The prosecution produced in all six prosecution witnesses. A brief reference of whom entails hereinbelow. 13. The informant Ram Briksha Rajbhar PW1, Satiram PW2 and Raghunath PW3 are the witnesses of fact. Gyanendra Nath PW4 is the Investigating Officer who, apart from proving the part of the investigation, has also proved the Check FIR and the relevant general diary whereby the case was registered against the accused-appellants. Abdul Haleem PW5 conducted post mortem examination on the cadaver of the deceased Tufani, he has proved post mortem examination report Ext. Ka13. Dr. C. Rai has examined injuries on the person of the injured (then alive) Tufani on 15.03.1987 at Primary Heath Centre, Kopaganj, Azamgarh. 14. Abdul Haleem PW5 conducted post mortem examination on the cadaver of the deceased Tufani, he has proved post mortem examination report Ext. Ka13. Dr. C. Rai has examined injuries on the person of the injured (then alive) Tufani on 15.03.1987 at Primary Heath Centre, Kopaganj, Azamgarh. 14. Except as above, no other testimony was adduced by the prosecution. Consequently, evidence for the prosecution was closed and the statement of the accused-appellants was recorded under Section 313 Cr.P.C. wherein they gave various reasons for their false implication on account of enmity and stated that the incident, in fact, took place at the tube-well of Jaghdhari after he consumed liquor. 15. No evidence, whatsoever, was led by the defence. 16. The case was heard on merit by the learned trial Judge who after appraisal of facts and vetting merits of the case recorded finding of conviction against accused-appellants under Section 304 read with Section 34 IPC and sentenced each of them to ten years rigorous imprisonment coupled with fine Rs.500/-, in default of payment of fine, additional two months imprisonment. 17. Consequently, this appeal. 18. It has been contended on behalf of the accused-appellants that in this case, testimony of the prosecution witnesses is not consistent on the point of the incident that it was ever seen by them or that it occurred in their presence. Testimony of the prosecution witnesses on this point is vacillating and full of improvements and highly embellished. The place of the occurrence is not certain because testimony of the prosecution witnesses is apparent that the incident took place in front of the door of the house of the injured/deceased, whereas, there is no house shown in the site plan. But the incident was shown to have taken place near 'Madahi' (hut) which is not the place as testified by the prosecution witnesses. 19. It appears that none saw the incident which allegedly took place at the door of Tufani. 'Madahi' (hut) is not the place of occurrence, therefore, the place occurrence has changed. It has also come in the testimony of the prosecution witnesses that the incident took place in the darkness and the sun had set in and each witness of fact says that it was darkness when the incident took place. 20. It has been contended next that there is deliberation before lodging of the first information report. It has also come in the testimony of the prosecution witnesses that the incident took place in the darkness and the sun had set in and each witness of fact says that it was darkness when the incident took place. 20. It has been contended next that there is deliberation before lodging of the first information report. The first information report is oral and the same was lodged after consultation with each other. There is no reason as to why the wife of the injured/deceased who accompanied the injured/deceased up to the police station did not lodge the first information report. Had the prosecution witnesses seen the incident they would have given clear description of the direction towards which the assailants made their escape good after commission of the crime. 21. It has been further contended that the motive behind the incident has not been properly proved by the prosecution witnesses. There is great variance in injuries noted in the injury report and the ante mortem injuries noted in the post mortem examination report. In the injury report, injury on the tooth has been specifically noted by Dr. C. Rai, PW6 whereas, Dr. Abdul Haleem PW 5 did not notice any such injury on the tooth in the post mortem examination report. Therefore, initial case of injury was not substantiated by the doctor in the post mortem examination report. 22. Lastly, it has been further contented that the Investigating Officer has not properly done the investigation and filed charge sheet against the accused-appellants in perfunctory manner. It is apparent from perusal of the first information report that each and every witness arrived on the spot after hearing the noise, that is to say, that after the incident had occurred and no one saw the victim being assaulted by anyone. Fact is that the incident was caused at the tube-well of Jagdhari by some unknown persons about whom nothing is known. 23. Learned A.G.A. has vehemently opposed the contentions so raised by learned amicus curiae for the accused-appellants and has submitted that the witnesses of fact were present on the spot and they have categorically described the manner and style of the incident wherein the injured/ deceased sustained injuries and the first information report was lodged promptly. 23. Learned A.G.A. has vehemently opposed the contentions so raised by learned amicus curiae for the accused-appellants and has submitted that the witnesses of fact were present on the spot and they have categorically described the manner and style of the incident wherein the injured/ deceased sustained injuries and the first information report was lodged promptly. There may occur minor contradictions in the testimonial account of the prosecution witnesses of fact but that alone would not be sufficient to throw away the case of the prosecution. The charge levelled against the accused-appellants has been proved beyond reasonable doubt. The laches committed by the Investigating Officer during course of the investigation would not be fatal to the prosecution's case. The trial court has judiciously recorded conviction and has awarded appropriate sentence. 24. I have also considered the rival submissions and taken into consideration rival claims. In view of above, the point for determination of this appeal relates to fact as to whether the prosecution has proved charge under Section 304 read with Section 34 I.P.C. beyond reasonable doubt? 25. Bare perusal of the contents of the first information report is indicative of fact that the incident, in fact, took place on 15.03.1987 around 7:00 p.m. when all the accused-appellants arrived at the door of the injured/deceased Tufani and extended abuse on him, when asked not to do so, they started assaulting the injured/deceased with 'Lathi' and 'Danda'. When alarm was raised by the injured, Sati Ram and Raghunath intervened but the assailants continued with the assault due to which the injured/deceased fell down on the spot and he was rendered unconscious. He was taken on the cot by Janaki, Prem, Jagnandan and the informant to the police station. 26. It has been described in the first information report that lot of blood oozed out from the head of the injured/deceased who was unconscious. Request was made for lodging the report and consequent action. 27. Pursuant thereto, medical examination of the injured/deceased was done at Primary Health Centre, Kopaganj on 15.08.1987 at 10:00 p.m. wherein as many as five injuries were noted on the person of the injured. Injury nos.1, 2 and 3 were lacerated wounds, whereas, injury no.4 was on the upper left incisor tooth and injury no.5 was in the shape of contusion on the right upper arm. The patient was then in unconscious state. 28. Injury nos.1, 2 and 3 were lacerated wounds, whereas, injury no.4 was on the upper left incisor tooth and injury no.5 was in the shape of contusion on the right upper arm. The patient was then in unconscious state. 28. This medical examination report has been proved by Dr. C. Rai as Ex. Ka14. 29. Insofar as testimony regarding the occurrence is concerned, there are three eyewitnesses of the occurrence namely the informant Ram Briksha PW1, Sati Ram PW2 and Raghunath PW3. 30. The informant Ram Briksha PW1 has described about the incident which took place around 7:00 p.m. on the day (15.03.1987) of the occurrence and he has proved the oral report Ext. Ka1. He has also proved that after the injured Tufani was taken to hospital for medical examination, he was referred to District Hospital and he succumbed to his injuries in the hospital around 1:00 a.m., the same night, the same version of the occurrence has been proved by Sati Ram PW2. 31. In line with testimony of PW1 and PW2, Raghunath PW3 has also proved the incident that it took place around 7:00 p.m. wherein it has been claimed that the assault caused by the accused-appellants on the deceased Tufani was witnessed though at a later stage because PW3 arrived on the spot “after hearing the noise”. On his arrival on the spot, he saw Sheo Lochan, Murari, Sareek and Ghurai assaulting the injured Tufani with 'Lathi' and 'Danda' who had fallen on the ground and was rendered unconscious. Besides himself, Janaki, Jadunandan, Ram Briksha, Prem and a number of other persons had also arrived on the spot. 32. PW3 has also testified to fact that the injured Tufani was taken on the cot to the police station Kopaganj, District Azamgarh where the report was lodged by the informant Ram Briksha and from where the injured Tufani was taken to the government hospital (PHC-Kopaganj) for medical examination which was done at 10:00 p.m. 33. All injuries kept under observation and he was referred to District Hospital, Azamgarh but he expired the same night around 1:00 a.m. Insofar as the contention raised by learned amicus curiae for the accused-appellants qua the incident is concerned, the same is very specific on the point of the occurrence that the place of the occurrence was changed. All injuries kept under observation and he was referred to District Hospital, Azamgarh but he expired the same night around 1:00 a.m. Insofar as the contention raised by learned amicus curiae for the accused-appellants qua the incident is concerned, the same is very specific on the point of the occurrence that the place of the occurrence was changed. However, from wholesome testimony of the prosecution witnesses of fact as well as the Investigating Officer, obviously it was the door, the place near to the door of the 'Madahi' (hut) of the injured/deceased. 34. I have scrutinized the entire cross examination of the prosecution witnesses of fact on this specific point wherein no conspicuous question has been put to any of the eyewitnesses on point as to what they meant by “the door of the injured/deceased Tufani” whether the door was door of Madahi (hut) or house of the injured/deceased Tufani which was located at a short distance from the place where the injured/deceased Tufani fell unconscious. 35. In the site plan, the place marked by word 'A' is the place where the incident is stated to have taken place. This place is stated to be on the Abadi land which is shown to be in front of Madahi (hut) of the injured/deceased Tufani. In the absence of any specific and straight question in cross examination to the witnesses of fact, the defence cannot score on the point that the place of the occurrence has been changed and the door testified by these witnesses was in fact meant as door of the house of the deceased. No doubt, the place of occurrence is in front of Madahi (hut) of the injured/deceased Tufani then the specific version given by the prosecution witnesses regarding the place of occurrence in front of door of the injured/deceased Tufani cannot be disbelieved it was meant for door of the house of the deceased and in such fact situation this place of testimony on point of place of occurrence cannot be viewed with suspicion. 36. Next contention raised on behalf of the accused-appellants pertains to fact that none of the prosecution witnesses, in fact, saw the incident which took place at the tubewell of Jagdhari. 36. Next contention raised on behalf of the accused-appellants pertains to fact that none of the prosecution witnesses, in fact, saw the incident which took place at the tubewell of Jagdhari. That way, the incident of assault is admitted to the defence though the place of occurrence is disputed with some variation that it was caused and committed by some unknown persons but there is no whisper from any corner that the incident in fact was caused at the tubewell of Jagdhari. 37. While scanning and scrutinizing testimony of PW1 and PW2 on point of occurrence, it is obvious that both the prosecution witnesses reached on the spot only after the incident had taken place and the assailants had left the scene of the crime. Reason being that at the time when PW1 arrived on the spot that he has testified to fact that Sati Ram PW2 was also present over there and in the meanwhile, he (PW2) arrived on the spot prior to the arrival of PW1. That way, Sati Ram PW2 was present on the spot prior in point of time to that of PW1. 38. Testimony of PW2 in regard to witnessing the incident is concerned, it has been testified that prior to his arrival, Ram Briksha, Bhikhari, Hannu, Mahavir, Purshottam, Pardeshi and Jagdish etc. had arrived on the spot and they witnessed the incident. He has also testified in his cross examination on page 41 of the paperbook that these persons were present over there prior to his arrival. He has categorically stated that at the time when he arrived on the spot, he saw the injured/deceased Tufani fell on the ground. He was not in a position to state as to in which direction, the assailants retreat after commission of the offence. He continued with description that it being darkness, he was not able to see as to in which direction the assailants fled after commission of the offence. Thus, testimony of PW1 and PW2 generates lot of doubt on their being witnesses to the fact of the incident. He continued with description that it being darkness, he was not able to see as to in which direction the assailants fled after commission of the offence. Thus, testimony of PW1 and PW2 generates lot of doubt on their being witnesses to the fact of the incident. If Ram Briksha PW1 was present prior to arrival of PW2 on the spot and other persons were also present on the spot and they witnessed the incident then testimony of PW2 to the ambit that prior to his arrival, he along with other persons was present on the spot and witnessed the incident becomes highly contradictory statement which seems to be embellished one and cannot be believed and doubt is created whether they in fact witnessed the incident or not at the time of occurrence. It is admitted to Sati Ram PW2 that Ram Briksha PW1 was present on the spot prior to his arrival, whereas, the testimony of PW1 claims on page 14 in examination in chief that Sati Ram PW2 along with others was present on the spot when he arrived on the spot. 39. Raghunath PW3 has also testified that the incident took place on 15.03.1987 around 7:00 p.m. and there was litigation over some piece of Abadi land (chakout land) between the injured/deceased Tufani and the accused due to which the accused-appellants assaulted the injured/deceased Tufani with 'Lathi' and 'Danda'. After hearing the noise, this witness arrived on the spot which was in front of door of the injured Tufani (deceased) when he saw Sheo Lochan, Murari, Sareek, Ghurai assaulting the injured Tufani with 'Lathi' and 'Danda' due to which he fell down on the ground and was rendered unconscious. He has supported fact that besides himself, Janaki, Jadunandan, Ram Briksha and Prem had also arrived on the spot. He has also proved fact that the injured Tufani was taken to the government hospital (PCH) Kopaganj where he expired the same night around 1:00 a.m. He has been cross examined by the defence at length wherein he has corroborated his evidence given in his examination-in-chief. 40. On the point of motive, PW3 has also explained that there was enmity existing on account of landed property which was claimed by rival groups say the accused-appellants and the injured/deceased. 40. On the point of motive, PW3 has also explained that there was enmity existing on account of landed property which was claimed by rival groups say the accused-appellants and the injured/deceased. On page no.54 of the paper book, he has been put specific question in his cross examination, about the manner of assault after he witnessed the incident on his arrival on the spot. He has specifically stated that on his arrival, the injured Tufani had fallen on the ground after sustaining injuries and at that point of time, the accused-appellants kept on assaulting him and caused 46 Lathi blows on him in the same position. 41. PW3 has also testified to the fact that though it was darkness but visibility was quite fair and visibility permitted recognition of the accused. This specific piece of testimony emerging in cross examination remained unimpeachable. May be, that at the initial stage of assault and up to the stage of assault being given to the injured/deceased in his standing position, PW3 was not present on the spot, but this witness arrived on the spot after hearing the noise when he saw the accused-appellants causing Lathi blow on the injured/deceased in the fallen state. On the arrival of this witness and villagers, the accused-appellants made their escape good. 42. Insofar as motive behind the incident is concerned, though it relegated to the background in view of the eye-account testimony of PW3 still testimony is overwhelming on the point of motive for committing the offence that it was done due to dispute on account rival claim on landed property (Chakout land). 43. Not only this, contention has been raised also to the ambit that in the medical examination of the then injured Tufani around 10:00 p.m. on 15.03.1987, description of as many as five injuries were noted. Injury no.4 was described to be on the upper left incisor tooth. The broken tooth was found missing at the time of post mortem examination of the deceased Tufani which was conducted by Dr. Abdul Haleem PW5. He has categorically stated that he did not find any ante mortem injury described as injury no.4 in the medical examination of the deceased Tufani. The broken tooth was found missing at the time of post mortem examination of the deceased Tufani which was conducted by Dr. Abdul Haleem PW5. He has categorically stated that he did not find any ante mortem injury described as injury no.4 in the medical examination of the deceased Tufani. This way, there appears contradiction in description of injuries described in the medical examination of the then injured Tufani and the ante mortem injury in the post mortem examination wherein nature and number of injuries vary and do not tally with each other. Medical examination of Tufani was done by Dr. C. Rai PW6. It has been stated by Dr. C. Rai that injury of the injured Tufani can be caused on 15.03.1987 at 7:00 p.m. which specific fact went unchallenged by the accused-appellants. Thus, it is proved that injuries were caused around 7:00 p.m. on 15.03.1987 on the deceased Tufani. 44. In this regard, it is worth consideration that it is not always necessary that injury in the shape and nature of the “broken incisor tooth” should and must be observed by the doctor also who conducted the post mortem examination of the deceased Tufani subsequently to the medical examination. 45. Insofar as testimony of Dr. Abdul Haleem PW5 is concerned, it is obvious that he has proved ante mortem injuries to be 5 in all. He has proved fact that these injuries were enough in the normal course to cause death of the deceased Tufani. He has proved post mortem examination report as Ext. Ka13. No doubt, in his cross examination on page no.76 of the paperbook, he has testified to the magnitude that there were 28 teeth present in the mouth of the deceased Tufani but 4 teeth were missing. He has categorically stated that he did not see any sign of injury in the mouth of the deceased Tufani. He has confirmed fact that the death of the deceased Tufani was caused because of the head injury. He has also testified to the ambit that smell of alcohol was missing. 46. He has categorically stated that he did not see any sign of injury in the mouth of the deceased Tufani. He has confirmed fact that the death of the deceased Tufani was caused because of the head injury. He has also testified to the ambit that smell of alcohol was missing. 46. Obviously, medical examination took place on 15.03.987 at 10:00 p.m., whereas, post mortem examination was conducted on 17.03.1987 at 3:00 p.m. Since approximately and about two days gap intervened in between the medical examination and conduction of the post mortem examination, therefore, possibility cannot be ruled that in the meanwhile alcohol being evaporative substance would vanish and smell of alcohol might accordingly have vanished by that time and cannot be felt in the manner which was felt earlier on 15.03.1987 at 10:00 p.m. at the time of medical examination of the deceased Tufani. Therefore, the contention raised on behalf of the accused-appellants that smell of alcohol was not found in post mortem examination. 47. Insofar as the investigation of this case is concerned, no doubt, the Investigating Officer has acted with great carelessness and has not taken note of important aspects of the investigation but it is settled law that laches committed by the Investigating Officer during course of the investigation would not be sufficient to through away the case of the prosecution if the testimony is otherwise clinching. The only point with which this Court is invariably concerned, is the fact of occurrence, which in view of the testimony of PW 3 stands proved and established that the assault in question was caused by the accused-appellants on 15.03.1987 around 7:00 p.m. which caused injuries and consequent death of the deceased Tufani. 48. I have already considered the testimony of Raghunath PW3 on point of the occurrence which fit in the attendant circumstances and facts of this case and it eventually turns out that the prosecution has been able to prove charge against the accused-appellants under Sections 304/34 I.P.C. The learned trial court has also taken comprehensive view of the entire occurrence and has discussed its various aspects and has recorded the conviction rightly against the present accused-appellants and has awarded just sentence against them which needs no interference at this juncture. 49. Accordingly, the judgment and order of conviction dated 05.08.1991 passed by the V Additional Sessions Judge, Azamgarh, in Session Trial No.63 of 1988 State Vs. 49. Accordingly, the judgment and order of conviction dated 05.08.1991 passed by the V Additional Sessions Judge, Azamgarh, in Session Trial No.63 of 1988 State Vs. Sheo Lochan and others, arising out of Case Crime No.34 of 1987 under Sections 304 read with Section 34 I.P.C., Police Station-Kopaganj, District-Azamgarh, is hereby affirmed. Consequently, the instant appeal lacks merit and the same is dismissed. 50. In this case, the appellants are on bail. Their bail bonds are cancelled and sureties are discharged. They shall be taken into custody forthwith for serving out the sentence so imposed upon them by the trial court. 51. Let a copy of this judgment/order be certified to the court concerned for necessary information and follow up action.