JUDGMENT : PRAKASH CHANDRA JAISWAL As all the aforesaid four criminal appeals have cropped up from the same judgment, hence the aforesaid appeals are being heard together and disposed of by this common judgment. 2. Heard Sri Vikramdeo Singh, learned counsel assisted by Sri Ashok Kumar Sinha, Smt. Meena Singh and Sri Paras Nath learned counsels for the appellants in all the aforesaid four appeals. Sri Ajay Mishra as well as Sri Satya Narayan Prasad, learned Additional Public Prosecutors as well as Sri Ramakant Sharma, learned senior counsel assisted by Dr. Amrendra Kumar, learned counsel for the informant on the aforesaid appeals. 3. The aforesaid four criminal appeals have been preferred against the judgment and order of conviction dated 11.06.2013 and order of sentence dated 17.06.2013 passed by the Additional Sessions Judge-II, Jehanabad jointly in Sessions Trial No.85 of 2011/92 of 2011, Sessions Trial No.383 of 2011/73 of 2011 and Sessions Trial No.318 of 2012/85 of 2012, arising out of Jehanabad P.S. Case No.195 of 2010, whereby the learned Trial Court acquitted the accused Rahul Kumar Pankaj @ Rahul Kumar @ Dhoni of the charges levelled against him and convicted accused Raj Kumar Yadav, Teeju Yadav @ Teeju Kumar and Munna Yadav for the offences punishable under Sections 147,302/149 and 379/149 of the Indian Penal Code (hereinafter in short referred to as the 'I.P.C.') and convicted accused Satyanarayan Prasad for the offences punishable under Sections 147, 302/149/114 of the I.P.C. and sentenced accused Raj Kumar Yadav, Teeju Yadav @ Teeju Kumar, Munna Yadav and Satyanarayan Prasad to undergo R.I. for life and also slapped them with a fine of Rs.10,000/- each and in case of default of payment of fine to further undergo S.I. for one year under Section 302 read with Section 149 I.P.C. or under Section 302/149/114 I.P.C. and no separate sentence was awarded to the accused persons under Section 147 & 379/149 I.P.C. . 4. 4. Factual matrix of the case is that Jehanabad P.S. Case No.195 of 2010 was initially instituted under Sections 147, 148, 149, 323, 307 & 308 I.P.C. and subsequently added with Section 302 I.P.C. following the death of the victim Vivek Kumar against manager of the fair, Rajesh, Satyanarayan, Teeju Yadav, Raj Kumar, Gaurav Yadav, Ranjan Yadav, Munna Yadav, Gautam Kumar, Rahul Kumar @ Dhoni, Pintu Kumar @ Chhotu, Vinod Kumar and other unknown miscreants, on the basis of fardbeyan of Vikash Kumar, son of Yugal Kishore Prasad, recorded by S.I. Rajneesh Prakash Pandey on 05.04.2010 at 3:30 PM at bed No. 17 of IUC of Rajeshwar Hospital Patna with the allegation in succinct that on 02.04.2010 the informant along with his brother Vivek Kumar had visited Meena Bazar fair organized at Gandhi Maidan, Jehanabad at around 8 PM and while they were relishing chat near tower swing in the fair abruptly he heard explosion of bomb and uproar. Responding the same, when they started stepping out of the fair the goons of the manager of the fair who were 30-35 in number armed with lathi, danda, iron rod, hockey stick, pistol and bomb chased the person and at the instigation of the manager of the fair, namely, Rajesh and Satyanarayan to assault Vivek Kumar, Teeju Yadav, Raj Kumar, Gaurav Yadav, Ranjan Yadav, Munna Yadav, Gautam Kumar, Rahul Kumar @ Dhoni, Pintu Kumar @ Chhotu, Vinod Kumar and other unknown miscreants started assaulting his brother Vivek Kumar. Teeju Yadav and Raj Kumar assaulted on the head of his brother by means of rod and other accused persons assaulted him by means of rod, lathi, iron punch, leg and fist. Sustaining injury, he fell down. Then they also assaulted him by means of boot. They snatched away the mobile and golden chain of his brother. The bone of contention is said to be that the aforesaid manager of the fair Rajesh and Satyanarayan had engaged 50-60 miscreants in the security of the fair who used to misbehave with the woman folk and girls visiting the fair. Two days precedent to the occurrence the locals had protested their aforesaid misdeeds and in retaliation thereof the aforesaid occurrence has been committed by the goons of the manager at their instance. 5. Two days precedent to the occurrence the locals had protested their aforesaid misdeeds and in retaliation thereof the aforesaid occurrence has been committed by the goons of the manager at their instance. 5. Aforesaid case was investigated by the police and on conclusion of the investigation, I.O. submitted chargesheet and three supplementary charge-sheets on different dates against the accused Raj Kumar Yadav, Teeju Yadav, Rahul Kumar Pankaj, Pintu Kumar @ Chhotu and Munna Yadav showing accused Rajesh Kumar, Gorakh Yadav, Ranjan Yadav, Gautam Kumar and Binod Kumar as not sent up for trial. 6. On receiving the charge-sheet and the case diary and perusing the same, the learned Magistrate took cognizance of the offence against the aforesaid accused persons and committed the case to the Court of Sessions and after commitment and on transfer finally the case came in the seisin of Additional Sessions Judge-II, Jehanabad for trial. 7. Charge against the accused Raj Kumar Yadav, Teeju Yadav, Rahul Kumar @ Dhoni, Pintu Kumar @ Chhotu and Munna Yadav was framed under Sections 147, 302/149 and 379/149 I.P.C. while the charge against the accused Satyanarayan Prasad was framed under Section 147 and 302/149/114 I.P.C. Charge was read over and explained to them by the Court to which they pleaded not guilty and claimed to be tried. 8. During the course of trial finding the accused Pintu Kumar @ Chhotu juvenile his case was split up and sent to the Juvenile Justice Board for enquiry and trial and thus only five accused persons faced further trial. Subsequently, the aforesaid three Sessions Trials were amalgamated vide order dated 04.09.2012. 9. To substantiate its case, in ocular evidence, the prosecution has examined altogether 12 prosecution witnesses, namely, Saurabh Kumar as P.W.1, Rishikant Kumar as P.W.2, Anil Sharma as P.W.3, Nand Kishore Sharma as P.W.4, Manish Kumar as P.W.5, informant Vikash Kumar as P.W.6, Rajneesh Kumar Pandey, first I.O. of the case who recorded the formal F.I.R., as P.W.7, second I.O. of the case Bachha Singh as P.W.8, third I.O. of the case Rajendra Ram as P.W.9, fourth I.O. of the case Ranjeet Ram as P.W.10, Dr. Anil Kumar, who conducted the autopsy of the cadaver of the deceased, as P.W.11 and Dr. Ram Bhavan Singh, who had primarily treated the victim at Jehanabad and prepared the injury report, as P.W.12. Anil Kumar, who conducted the autopsy of the cadaver of the deceased, as P.W.11 and Dr. Ram Bhavan Singh, who had primarily treated the victim at Jehanabad and prepared the injury report, as P.W.12. The prosecution has also filed and proved some documents by way of documentary evidence in the case. 10. Statement of the accused persons were recorded under Section 313 of the Code of Criminal Procedure. The case of the defence is complete denial of the occurrence claiming themselves to be innocent. In buttress of their case, in ocular evidence, the accused persons have also examined one witness, namely, Raj Nandan Kumar as D.W.1. 11. After hearing the parties and perusing the record, the learned Trial Court passed the aforesaid judgment and order of conviction and sentence as detailed in the earlier paragraph. 12. Being aggrieved and dissatisfied with the aforesaid judgment and order of conviction and sentence, the convicts have preferred these criminal appeals. 13. The point for consideration in this case is as to whether the prosecution has been able to bring home the charges levelled against the appellants beyond all reasonable doubts or not. 14. It is submitted by learned counsel for the appellants that the occurrence is said to be of 02.04.2010 and as per the witnesses' account the victim was rushed to the Jehanabad Sadar Hospital from the place of occurrence by the police jeep having driver and one constable on the date of occurrence but the fardbeyan of the victim Vivek Kumar was recorded on 05.04.2010 i.e. after long delay of three days and no plausible and convincing reason has been assigned by the prosecution to explain the aforesaid delay, which creates serious doubt about the prosecution case. It is also submitted that the F.I.R. was recorded on 05.04.2010 but it was sent to the Court on 07.04.2010 i.e. after delay of two days and no plausible and convincing reason has been assigned by the prosecution to explain the aforesaid delay in sending the F.I.R. to the Court which also creates serious doubt about the prosecution case. It is further submitted that during the course of investigation the witnesses were examined by the I.O. under Section 161 Cr.P.C. after a long span of time of 15-25 days which creates doubt about sanctity of their statements. It is further submitted that during the course of investigation the witnesses were examined by the I.O. under Section 161 Cr.P.C. after a long span of time of 15-25 days which creates doubt about sanctity of their statements. It is further submitted that there is vital contradiction between the ocular evidence and the medical evidence adduced by the prosecution and the ocular evidence does not stand corroborated by the medical evidence. It is also submitted that as per the prosecution case only Teeju Yadav and Raj Kumar Yadav assaulted on the head of the deceased Vivek Kumar which proved fatal and no overt act has been attributed to the rest two appellants, hence the said appellants are liable to be acquitted from the charges levelled against them. It is further submitted that it is not a case of intentional murder as there was no premeditation of mind to commit the occurrence rather the occurrence took place in a spur of moment, hence no offence under Section 302 I.P.C. is made out rather utmost the offence under Section 304 Part-II I.P.C. is made out. Thus, the prosecution has utterly and miserably failed to substantiate the prosecution case against the appellants by adducing consistent, trustworthy and worth credence evidence, hence the aforesaid judgment and order of conviction and sentence passed by the learned Trial Court against the appellants is liable to be set aside and the appellants are entitled to be acquitted of the charges levelled against them. 15. Per contra, learned A.P.P. for the State and learned counsel for the informant, advocating the correctness and validity of the impugned judgment and order of conviction and sentence, submitted that the informant has supported the prosecution case in toto and the other witnesses, namely, P.W.1 to P.W.5, who happens to be independent witnesses of the occurrence, have also corroborated the prosecution case. The ocular evidence of the prosecution also stands corroborated by the medical evidence. The second I.O. Bachha Singh (P.W.8) in para-13 & 17 of his cross-examination has sufficiently explained the delay in recording the fardbeyan of the victim and the learned Trial Court correctly appreciating the facts and evidence available on record has rightly passed the aforesaid judgment and order of conviction and sentence which is liable to be upheld and these four appeals are shorn of merit and are liable to be dismissed. 16. 16. From perusal of the testimony of the informant Vikash Kumar (P.W.6), it appears that in his examination-inchief he has given statement in consonance to the prosecution case to the effect that on 02.04.2010 at 8 PM he along with his brother Vivek Kumar had gone to the Gandhi Maidan, Jehanabad to witness the fair organized on its northern flank and when they were relishing the chat near tower swing of the fair they listened the sound of hulla outside the fair. Responding the same when they stepped out of the fair they spotted 20-25 persons armed with lathi, iron rod and other weapons standing there. When the Vivek started heading towards the western gate of the fair and he was 10-20 ft. south to him in the meantime owner of the fair Rajesh and its manager Satyanarayan gave order to assault blaming their presence in the earlier occurrence. Responding the same, Teeju Yadav and Raj Kumar Yadav assaulted on the head of his brother by means of iron rod, Pintu @ Chhotu assaulted by means of iron punch, Munna Yadav by means of lathi, Ranjan Yadav by means of iron chain, Gaurav Yadav by means of hockey stick and Binod Yadav, Gautam and Rahul also assaulted his brother with intention to do away with his life. As the accused persons were 20-25 in number and were armed with various weapons he could not save his life rather made hulla to save him but none rushed in his rescue. During the aforesaid period, Rajesh and Satyanarayan kept instigating the other accused persons to eliminate his brother. Sustaining injury when the Vivek fell down on the ground some accused persons also assaulted him by means of boot. They also snatched his golden chain and mobile phone of RIM company. Then they made good their escape. Rajesh and Satyanarayan escaped in the fair. After 10-15 minutes police jeep arrived there and he with the help of 4-5 persons rushed his brother to Sadar Hospital, Jehanabad by the aforesaid jeep. After according him primary treatment the doctor referred him to Patna finding his condition precarious. Then they made good their escape. Rajesh and Satyanarayan escaped in the fair. After 10-15 minutes police jeep arrived there and he with the help of 4-5 persons rushed his brother to Sadar Hospital, Jehanabad by the aforesaid jeep. After according him primary treatment the doctor referred him to Patna finding his condition precarious. They took him to the Rajeshwar Hospital, Kankarbagh, Rajendra Nagar, Patna where he remained admitted in I.C.U. till 9th of April, 2010 and succumbed to his injury on the said date at 6 A.M. The informant was subjected to gruelling cross-examination by the defence but from perusal of the cross-examination of the informant we find that nothing convincing and cogent has been elicited by the defence in his cross-examination having potential to rule out his presence at the place of occurrence at the time of occurrence and witnessing the occurrence as well. Thus, the informant stood the test of cross-examination and he faced the cross-examination tenaciously. Moreover, Saurabh Kumar P.W.1, Rishikant Kumar P.W.2 and Manish Kumar P.W.5 in paras-13, 14 & 5 respectively of their cross-examination have corroborated the presence of the informant at the place of occurrence at the time of occurrence. Thus, the presence of the informant at the place of occurrence at the time of occurrence and witnessing of the occurrence by him has sufficiently been established by the prosecution by examining the aforesaid witnesses. 17. From perusal of the testimony of Saurabh Kumar P.W.1, Rishikant Kumar P.W.2, Anil Sharma P.W.3, Nand Kishore Sharma P.W.4 and Manish Kumar P.W.5, it appears that they are independent witnesses of the occurrence. The aforesaid independent witnesses of the occurrence in their respective examination-in-chief have deposed in consonance to the prosecution case as adumbrated herein above. The aforesaid witnesses were also subjected to gruelling cross-examination by the defence but nothing convincing and cogent has been elicited in their cross-examination by the defence having potential to rule out their presence at the place of occurrence at the time of occurrence and witnessing the occurrence by them. Thus, the aforesaid witnesses also appears to have faced the test of crossexamination tenaciously and stood the test of cross-examination. Thus, the aforesaid witnesses also appears to have faced the test of crossexamination tenaciously and stood the test of cross-examination. Though there is some minor contradictions between the testimony of the aforesaid witnesses but from perusal of the record, it appears that the occurrence is of April, 2010 while the testimony of the aforesaid witnesses were recorded from September, 2012 to October, 2012 i.e. around 2½ years later to the occurrence. The power of perceiving, retention and reproduction of the facts of the case differs from man to man and also stands dampened by the passage of time so such minor contradictions, in our considered opinion, are bound to happen in the testimony of the natural witnesses of the case. Moreover such minor contradictions in our considered opinion is not going to touch the core of case. Hence, from perusal of the aforesaid testimonies of the independent witnesses, it appears that all the aforesaid witnesses have corroborated the occurrence, the time, place and manner of occurrence and the involvement of the accused persons in the occurrence etc. Testimonies of the informant and the aforesaid independent witnesses appears to be consistent, reliable and unblemished. Thus the prosecution has sufficiently established the prosecution case and complicity of the appellants in the occurrence by the aforesaid consistent, trustworthy and unblemished ocular evidence. 18. From perusal of the injury report of the deceased Vivek Kumar marked as Ext.8, and the testimony of Dr. Ram Bhavan Singh (P.W.12) who had primarily examined the deceased and prepared the injury report it appears that the doctor has found the following injuries on the person of the victim at the time of his examination: (i) Lacerated wound over left parietal region of the size of 1'' x 1/4” scalp deep, simple in nature caused by hard and blunt substance. (ii) Lacerated wound over left side upper lip of the size of ½” x ¼” x muscle deep, simple in nature, caused by hard and blunt substance. (iii) Lacerated wound over left side lower lip of the size of ½” x ¼” x muscle deep, caused by hard and blunt substance, opinion about the nature of injury reserved. (iv) Swelling on left staller region of 1” in diameter, caused by hard and blunt substance, opinion about nature of the injury reserved. 19. Dr. (iii) Lacerated wound over left side lower lip of the size of ½” x ¼” x muscle deep, caused by hard and blunt substance, opinion about the nature of injury reserved. (iv) Swelling on left staller region of 1” in diameter, caused by hard and blunt substance, opinion about nature of the injury reserved. 19. Dr. Anil Kumar (P.W.11) who conducted the autopsy of the cadaver of the deceased and prepared the postmortem report marked as Ex.- 7 has found following antemortem injuries on the person of the deceased: (i) Stitched wound on upper lip and lower lip, each of single stitch and below lower lip of 1” length having three stitches. (ii) 1” long stitched wound on left parietal region of skull. (iii) Abrasion on back of chest of size 2½” x ½” and both loon region in area of 4” x 3” with scab. All the aforesaid injuries caused by hard and blunt substance. He has opined the head injury as the cause of the death and the time elapsed since death has been assessed by him as 6 to 24 hours. The aforesaid autopsy was conducted by the said doctor on 09.04.2010 at 2 PM while the death of the deceased was on the said date at 6 AM. Thus, the aforesaid medical evidence also appears to have corroborated the consistent ocular evidence of the prosecution. 20. The submissions of learned counsel for the appellants that as per the witnesses' account the victim was rushed to the Sadar Hospital, Jehanabad from the place of occurrence on the police jeep having one constable and driver but the fardbeyan of the victim was recorded on 05.04.2010 i.e. after three days of the occurrence and no plausible and convincing reason has been ascribed by the prosecution to explain the aforesaid delay in recording the fardbeyan of the informant creating serious doubt about prosecution case does not appear to be convincing and plausible. As from perusal of the prosecution case and the testimony of the informant Vikash Kumar (P.W.6), it appears that albiet the victim was rushed from the place of occurrence to the Sadar Hospital, Jehanabad by the police jeep having constable and driver and the victim was primarily treated there but as the condition of the victim was precarious he was referred to Patna to accord him better treatment. The informant and his family members got him admitted in the Rajeshwar Hospital, Kankarbagh, Rajendra Nagar, Patna in the I.C.U. in the night of 02.04.2010 where he remained in comma and subsequently succumbed to his injuries on 09.04.2010 at 6 AM. Thus, the informant appears to have been awfully busy in according better treatment to the deceased to save his life who was striving for his life and his entire attention was zeroed in on the treatment of the deceased and to save his life and it was his primary and preferential concern than to rush to the police and inform the occurrence to it. Second I.O. of the case, namely, Bachha Singh (P.W.8) has stated in para-17 of his cross-examination that on getting complain about the occurrence on 02.04.2010, he had rushed to the Gandhi Maidan, Jehanabad by mobile van from the place of patrolling and learnt that Vivek Kumar had been rushed to the Sadar Hospital, Jehanabad by another mobile van of the police then he rushed to the Sadar Hospital, Jehanabad to take the statement of the victim Vivek Kumar but he was referred to Patna for better treatment preceding to his arrival there. Then he deputed police officer on that very date to record the fardbeyan regarding the occurrence who fetched the written report of Satyanarayan Prasad which was numbered as Jehanabad P.S. Case No.188 of 2010. He misunderstood that the aforesaid statement has been given by the injured Satyanarayan Prasad regarding the same occurrence but later on during investigation when it came to his knowledge that fair people had committed the occurrence in association of his goons in which Vivek Kumar was injured and the Vivek Kumar is struggling for his life in Patna he sent S.I. Rajneesh Kumar Pandey (P.W.7) along with S.I. Vinod Kumar to record the statement of the prosecution party whereupon Rajneesh Kumar Pandey recorded the fardbeyan of Vikash Kumar (P.W.6) brother of the injured. On the basis of the aforesaid fardbeyan Jehanabad P.S. Case No.195 of 2010 was instituted. From perusal of the aforesaid statement of the informant and that of said I.O. it appears that prosecution has sufficiently proved the delay in giving the fardbeyan by the informant. 21. On the basis of the aforesaid fardbeyan Jehanabad P.S. Case No.195 of 2010 was instituted. From perusal of the aforesaid statement of the informant and that of said I.O. it appears that prosecution has sufficiently proved the delay in giving the fardbeyan by the informant. 21. Submission of learned counsel for the appellants that there has been two days delay in sending the F.I.R. to the Court which creates serious doubt about the prosecution case also does not appear to be convincing to us because, in our considered opinion, in view of the aforesaid consistent, unblemished and worth credence ocular evidence corroborated by medical evidence of the prosecution the aforesaid delay in sending the F.I.R. to the Court by no stretch of imagination goes to shatter the prosecution case. 22. Submission of learned counsel for the appellants that the witnesses have been examined by the I.O. after 15-25 days of occurrence in course of investigation which creates doubt about the sanctity of their statement also does not appear to be convincing as in our considered opinion, the aforesaid delay in recording the statement of the witnesses by the I.O. during the course of investigation is having no potential to rule out the well established prosecution case. The aforesaid delay in recording the statement of the witnesses might have occurred due to various factors such as business of the police authority in other preferential works than the investigation of the case. More over from perusal of record it appears that the first I.O. Rajneesh Kumar Pandey (P.W.7), had recorded the further statement of the informant under Section 161 Cr.P.C. on 05.04.2010 and thereafter he handed over the charge of investigation to the Inspector of Police, Jehanabad on 18.04.2010. Thereafter investigation of the case was entrusted to the second I.O. of the case, namely, Bachha Singh (P.W.8) on 26.04.2010 and after receiving the fardbeyan of Vikash Kumar and carbon copy of the postmortem report he recorded the statement of the witnesses Suresh Sharma, Saurabh Kumar, Anil Sharma, Manish Kumar, Rishikant Kumar, Nand Kishore Sharma Ramesh Chandra Prasad and S.I. Rajendra Ram (P.W.9), who happens to be third I.O. of the case. Then third I.O. Rajendra Ram (P.W.9) took the charge of investigation on 04.12.2010 and during the course of investigation he recorded the statement of Jitendra Keshari and Santosh Kumar Gupta and then he handed over the charge of investigation to other I.O. as he was transferred. Then the fourth I.O. Ranjeet Ram (P.W.10) took charge of investigation of the case and submitted the chargesheet against the accused persons. Thus, the aforesaid delay in recording the statement of the witnesses also appears due to frequent changes of the I.O. of the case. Thus, from perusal of the aforesaid testimonies of the witnesses and the record, it appears that the delay in recording the statement of the witnesses by the I.O. during the course of investigation also stands sufficiently explained by the prosecution. 23. The submission of learned counsel for the appellants that there was no premeditation of mind in committing the murder of the deceased rather the same happened in the spur of moment, hence the offence under Section 302 I.P.C. is not made out rather the offence under Section 304 Part-II I.P.C. is made out also does not appear to be convincing to us as from perusal of the testimony of the informant and the first I.O. Rajneesh Kumar Pandey (P.W.7), it appears that preceding to the occurrence there was some sort of scuffling and brawl between the deceased Vivek Kumar and others on the one hand and the owner and manager of the fair, Satyanarayan Prasad and Rajesh Kumar and their goons on the other hand over making protest by the former one against misbehaving the woman folk and girls visiting the mela by the later one and following the aforesaid previous occurrence the accused persons armed with various weapons committed the aforesaid occurrence identifying the deceased Vivek Kumar as one of the persons involved in the earlier occurrence at the instance of the manager and the owner of the fair. Thus there appears to be premeditation of mind in committing the occurrence and Teeju Yadav and Raj Kumar Yadav assaulted on the head of the deceased by means of iron rod while other accused persons forming an unlawful assembly and in prosecution of common object of said assembly participated in the aforesaid occurrence. Hence, the offence under Section 302/149 I.P.C. besides other sections of the I.P.C. appears to have been made out against the appellants. 24. Hence, the offence under Section 302/149 I.P.C. besides other sections of the I.P.C. appears to have been made out against the appellants. 24. Thus, from perusal of the aforesaid ocular and medical evidence of the prosecution, we find that the prosecution has succeeded to substantiate it case and bring home the charges levelled against the appellants beyond all reasonable doubt by adducing consistent, reliable and worth credence ocular and medical evidence. Hence, the aforesaid judgment and order of conviction and sentence passed against the appellants, in our considered opinion, does not warrant any interference by this Court and the same is hereby upheld and the aforesaid four criminal appeals are shorn of merit and are hereby dismissed. As appellant Satyanarayan Prasad {in Cr. Appeal (DB) No.725 of 2013} and appellant Munna Yadav {in Cr. Appeal (DB) No.585 of 2013} are on bail, their bail bonds are hereby cancelled and they are directed to surrender before the learned Court below forthwith, failing which, the learned Court below may take appropriate steps for ensuring their attendance for serving out remaining sentence.