JUDGMENT : The present appeal has been directed against the judgment of conviction dated 30.01.2004 and order of sentence dated 31.01.2004 passed by Shri Sanjay Kumar Chandriyavi, Additional District and Sessions Judge, Fast Track Court-VI Giridih in S.T No. 21 of 1990, whereby the appellant Dhanraj Singh and Sahdeo Singh have been found guilty under Sections 304 Part-II/34, 147 and the appellant Dhanraj Singh has also been held guilty under Section 148 IPC. Appellants Badri Singh, Durga Singh, Ashin Singh, Madhusudan Singh (died on 16.02.2004 and the appeal has been filed through Dhanraj Singh) have been found guilty under Sections 323 and 147 IPC. The appellants Dhanraj Singh and Sahdeo Singh have been sentenced to undergo rigorous imprisonment for seven years under Section 304 Part II/34 IPC. They have further been sentenced to undergo one year rigorous imprisonment under Section 147 of IPC. Dhanraj Singh has been sentenced to undergo rigorous imprisonment for one year under Section 148 of IPC. Accused Madhusudan Singh (deceased), Badri Singh, Durga Singh, Ashin Singh have been ordered to be released under the provisions of Probation of Offenders Act for maintaining good conduct for a period of one year and have been directed to furnish the bond to that effect. 2. The fact of the case as recorded in the fardbeyan of the informant Guhi Singh (PW-5) is that on 28.07.1989 at 8.00 am, his brother Shyam Lal Singh (now deceased) was ploughing his field and at that time, Madhusudan Singh, Dhanraj Singh, Sahdeo Singh, Badri Singh, Ashin Singh and Durga Singh by forming unlawful assembly came armed with lathi and tangi and restrained his brother Shyam Lal Singh from ploughing the field, but he insisted to plough the field as the same belonged to him and continued to do so. It has further been alleged that Madhusudan Singh ordered to kill Shyam Lal Singh as he had not obeyed him and then Dhanraj Singh gave Tangi blow on the head of Shyam Lal Singh who fell on the ground. Thereafter, Sahdeo Singh started assaulting on his testicles with lathi. The informant rushed to help his brother but he too was assaulted by the rest of the accused persons. Consequently, he became unconscious. After some time, he gained consciousness and found that his brother was still unconscious and as such, he took him to the house. Thereafter, Sahdeo Singh started assaulting on his testicles with lathi. The informant rushed to help his brother but he too was assaulted by the rest of the accused persons. Consequently, he became unconscious. After some time, he gained consciousness and found that his brother was still unconscious and as such, he took him to the house. The informant tried to manage money to take his brother to hospital, but he could not manage. Due to pain and as it was already night, he could not take his brother either to the hospital or to the police station. Finally, Shyam Lal Singh died at 1 am in the night. It has thus been alleged that the accused persons after forming unlawful assembly assaulted the informant and his brother who subsequently died. 3. On the basis of the fardbeyan, an FIR being Gandey P.S Case No. 28 of 1989 was instituted under Sections 147/148/149/324/307/302 IPC against the present appellants. The chargesheet was filed against the appellants on 25.10.1989 under Sections 147/148/149/307/302 IPC. The Chief Judicial Magistrate, Giridih took cognizance of the offences and committed the case to the court of Session for trial. On 07.02.1991, charge was framed against all the accused persons under Sections 302/149 IPC. Appellants Dhanraj Singh and Sahdeo Singh were specifically charged under Section 302 IPC. Dhanraj Singh was also charged under Section 148 IPC. Appellant Madhusudan Singh, Sahdeo Singh, Badri Singh, Ashin Singh, Durga Singh were charged under Section 147 IPC. Appellants Madhusudan Singh, Badri Singh, Ashin Singh, Durga Singh were also charged under Section 307 IPC for their attempt to commit murder of Guhi Singh. 4. Altogether seven witnesses were examined by the prosecution during the trial i.e., PW-1 – Dr. B.P Singh PW-2 – Kalawati Devi, PW-3 – Videshi Singh, PW-4 – Nema Devi, PW-5 – Guhi Singh, PW-6 – Dr. Pavitra Kumar Verma, PW-7 – Sahdeo Prasad Verma. The defence also examined DW-1 – Binod Prasad Singh. 5. PW-1 – Dr. B.P. Singh conducted the post-mortem of the dead body of the deceased and found the following injuries : 1. Lacerated wound on right side scalp 1 ¾ X 1/5”X skin deep 2. Lacerated would on the back of scalp 1” X 1/5” X scalp deep 3. Lacerated wound on the back of left forearm below elbow 1” X ¼”x muscles deep 4. Ecchymosis on the right side elbow having 2” X 2” 5. Lacerated wound on right side scalp 1 ¾ X 1/5”X skin deep 2. Lacerated would on the back of scalp 1” X 1/5” X scalp deep 3. Lacerated wound on the back of left forearm below elbow 1” X ¼”x muscles deep 4. Ecchymosis on the right side elbow having 2” X 2” 5. Ecchymosis on the left side scalp 1 ½” X 1 ½” 6. Swelling on scrotum 2” X 2” On dissection - fracture of parietal and frontal bone of right side of the skull was found. Intracranial cavity contained blood. 6. PW-1 opined that the injuries were inflicted by hard and blunt substance such as lathi and blunt portion of Tangi. Death was caused due to head injury. The post-mortem report was marked as Exhibit-1. 7. PW-2 – Kalawati Devi (wife of the deceased) claimed that she had gone to the place of occurrence for serving meal to her husband (i.e., the deceased). She also deposed that the accused persons assaulted the deceased with tangi and lathi. They also assaulted Guhi Singh. Consequent to the injury, the deceased became unconscious and died. 8. PW-3 – Videshi Singh deposed that he was at home and on hearing hulla, he came to the place of occurrence. He also deposed that the accused persons were beating the deceased by lathi and tangi. Consequently, he fell on the ground and became unconscious. They also assaulted Guhi Singh by lathi. 9. PW-4 – Nema Devi is a hearsay witness regarding the manner of occurrence. She deposed that the incident was narrated to her by the deceased. 10. PW-5 – Guhi Singh is the injured witness. He deposed that he had gone to the field along with the deceased. Madhusudan Singh, Dhanraj Singh, Sahdeo Singh, Badri Singh, Aashin Singh and Durga Singh came there. Dhanraj Singh was holding tangi and rest were holding lathi. The accused persons restrained them from ploughing the field whereupon the deceased told them that the land belongs to him and then Dhanraj Singh assaulted the deceased with tangi four times. Dhanraj Singh also assaulted on the left hand of the deceased with tangi. When the deceased fell down, Sahdeo Singh again assaulted him with lathi on his testicles and right hand. When the present witness went to save the deceased, Badri Singh, Madhusudan Singh, Durga Singh, Aashin Singh assaulted him with lathi. Dhanraj Singh also assaulted on the left hand of the deceased with tangi. When the deceased fell down, Sahdeo Singh again assaulted him with lathi on his testicles and right hand. When the present witness went to save the deceased, Badri Singh, Madhusudan Singh, Durga Singh, Aashin Singh assaulted him with lathi. He was also treated at the hospital. He further deposed that the land which was being ploughed was his paternal property. 11. PW-6 – Dr. Pavitra Kumar Verma - the Medical Officer posted at Primary Health Centre, Gandey, district-Giridih deposed that he had examined Guhi Singh and found following injuries: i. Swelling of both forearms including palms ii. Bruise on back both side at three places iii. Abrasion on upper back iv. Bruise with swelling on both shoulders v. fracture of right forefinger proximal phalanx Injuries no. (i) to (iv) are simple in nature and injury no. (v) is grievous which is caused by hard and blunt substance. 12. Defence also examined one witness – DW-1 - Binod Prasad Singh who exhibited a sale deed marked as Exhibit-A. 13. The learned counsel for the appellants submits that alleged occurrence had taken place in the broad day light, however, the prosecution has examined only the related witnesses which creates serious doubt on the version of the informant. The learned trial court failed to appreciate that PW-2, PW-3 and PW-4 were the family members of the informant and he also did not mention the names of these PWs in the FIR which shows that these witnesses were actually not present at the time of occurrence. The case of the prosecution is that the appellant Dhanraj Singh inflicted tangi blow on the head of the deceased, however, the doctor who conducted the post-mortem found lacerated wound on the head which contradicts the version of the prosecution. It is further submitted that the investigating officer has not been examined in this case which has caused serious prejudice to the case of the appellants. 14. The learned A.P.P. appearing on behalf of the State submits that merely due to the fact that no independent witness has been examined, the prosecution case does not get vitiated, if the witnesses have sufficiently proved the case. 14. The learned A.P.P. appearing on behalf of the State submits that merely due to the fact that no independent witness has been examined, the prosecution case does not get vitiated, if the witnesses have sufficiently proved the case. The injured witness namely, Guhi Singh has materially supported the case of the prosecution and the same has also been corroborated by the evidence of the doctor who conducted the post-mortem of the dead body of the deceased. It is further submitted that the appellants have failed to show as to what prejudice has been caused to them due to non-examination of the Investigating Officer. 15. Heard the learned counsel for the parties and perused the materials available on record. The learned counsel for the appellants while assailing the impugned judgment has raised serious doubt regarding the presence of PW-2, PW-3 and PW-4 at the place of occurrence during the alleged incident. PW-2 did not narrate the manner of occurrence. During the cross-examination, she deposed that her husband had gone to the field at 8 am after taking meal, thus it was improbable that she had gone to the field to provide meal to the deceased. She further deposed that her husband had gone to the field with Guhi Singh thus, her presence at the place of occurrence is doubtful. PW-3 – Vidheshi Singh himself admitted that he was in his house at the time of occurrence and on hearing hulla, he went to the place of occurrence. During the cross-examination, he deposed that the accused persons had fled away till he reached the place of occurrence. PW-4 deposed in her cross-examination that the deceased had himself told her about the incident. In view of the aforesaid statement of the witnesses namely, PW-2, PW-3 and PW-4, I do find substance in the argument of the learned counsel for the appellants that these witnesses were not present at the place of occurrence at that very moment. 16. However, PW-5 is the star witness of the occurrence who also claimed to have grievously injured in the alleged occurrence. Thus, it is required to closely weigh his evidence so as to find out the truthfulness of the prosecution case. So far the injuries inflicted to the deceased, he deposed that the appellant Dhanraj Singh assaulted the deceased with tangi and Sahdeo Singh with lathi. Thus, it is required to closely weigh his evidence so as to find out the truthfulness of the prosecution case. So far the injuries inflicted to the deceased, he deposed that the appellant Dhanraj Singh assaulted the deceased with tangi and Sahdeo Singh with lathi. The doctor (PW-1) who had examined the dead body of the deceased had also opined that the injuries on the body of the deceased might have been caused by the blunt portion of tangi and lathi. So far the injuries inflicted to him, he deposed that the rest of the accused persons had assaulted him with lathi and the said version has also been supported by PW-6 who had medically examined him. His presence at the place of occurrence was quite natural as both the deceased and PW-5 were related to each other and were ploughing the field and other prosecution witnesses also consistently deposed that both the deceased and PW-5 had gone to the field. 17. Though no independent witness has been examined in the present case, yet the facts itself suggest that the same may not be a ground to out rightly reject the prosecution’s case, rather if any material witness has supported the version of the prosecution’s case, the same may be taken into consideration. It is well settled that conviction can be based on the testimony of the sole eye-witness provided the evidence of said witness is cogent, trustworthy, reliable and is corroborated by other evidences. In the instant case as already observed hereinabove, the defence has not disputed the presence of PW-5 on the spot at the time of the incident. The ocular evidence of PW-5 has sufficiently been corroborated by the medical evidence and thus, it inspires confidence. The offence was committed in the broad day light and the convicts/appellants were already known to PW-5 and as such, there can be no doubt on the point of identification of the accused persons. The motive of the occurrence appears to be land dispute between the deceased and PW-5 on the one hand and the appellants on the other hand. It is contended on the behalf of the appellants that though the witnesses deposed that the injuries were inflicted by the tangi, yet no sharp cut injury was found on the body of the deceased by the doctor. It is contended on the behalf of the appellants that though the witnesses deposed that the injuries were inflicted by the tangi, yet no sharp cut injury was found on the body of the deceased by the doctor. On that issue, I am of the view that it is not expected from an eye-witness who got grievously injured in the occurrence that he would narrate the exact incident with precision and if the major part of the statement of the injured eye-witness is found consistent, the same may be taken into consideration. 18. In the case of “Kathi Bharat Vajsur Vs. State of Gujarat”, reported in (2012) 5 SCC 724 , it has been held as under: “32. When the medical evidence is in consonance with the principal part of the oral/ocular evidence thereby supporting the prosecution story, there is no question of ruling out the ocular evidence merely on the ground that there are some inconsistencies or contradictions in the oral evidence. We are not inclined to agree with Shri Dholakia on this count.” 19. One of the grounds raised while assailing the impugned judgment is that the investigating officer has not been examined in the present case which has caused serious prejudice to the case of the appellants. However, the appellants have not been able to shake the credibility of the injured eye-witnesses (PW-5). No material contradiction in the case of prosecution could be shown to this Court. Under such circumstance, non-examination of the investigating officer as a witness is of no material consequence. 20. On the basis of the evidence on record, it stands proved that there was sufficient visibility at the place of occurrence so as to identify the appellants by the PW-5 who was consistent with his statement about the manner of the occurrence and the same cannot be disbelieved merely due to some minor contradictions. 21. Thus, I find no infirmity in the impugned judgment of conviction. However, it appears that the incident pertains to the year 1989 and the appellants have been facing the rigours of a prolonged trial and thereafter appeal for about 30 years and now, the appellant Dhanraj Singh is aged about 73 years and Sahdeo Singh is aged about 55 years. 22. In the case of “Shiv Nandan Dixit Vs. State of U.P.”, reported in (2003) 12 SCC 636, it has been held as under: “10. 22. In the case of “Shiv Nandan Dixit Vs. State of U.P.”, reported in (2003) 12 SCC 636, it has been held as under: “10. Then it is argued on behalf of the appellants that the incident in question having taken place nearly 23 years ago, the appellants have already suffered sufficiently and we should take a lenient view of the matter and award a lesser sentence. We notice that the two appellants who were government servants have since lost their jobs and all retiral benefits and the prolonged litigation has caused considerable loss and suffering. Bearing in mind the fact that both the appellants have crossed 60 years of age, we think it appropriate that the sentence of 1 year's RI imposed by the High Court should be further reduced to a period of six months. Therefore, for the reasons recorded hereinabove, we alter the sentence awarded by the High Court for offences punishable under Section 120-B IPC, Section 161 IPC, Section 5(1)(d) read with Section 5(2) of the Act to six months' RI. We do not think it is necessary to award separate sentences under other provisions of the Act for which they have been sentenced by the trial court. The sentence already undergone, if any, will be given set-off. The appellants are on bail. Their bail bonds shall stand cancelled. They shall surrender to their bail bonds. The appeals are partly allowed.” 23. In the case of “Labh Singh Vs. State of Haryana”, reported in (2012) 11 SCC 690 , it has been held as thus: “2. According to the impugned judgment [Labh Singh v. Haryana State, Criminal Revision No. 173 of 1996 (CRR 173/1996) decided on 5-8-2009 (P&H)] passed by the High Court, Appellant 1 is more than 82 years of age and Appellants 2 and 3 are 72 and 62 years of age respectively. This is an incident of 1985. The appellants have already undergone part of the sentence. Sending them to jail after a lapse of about 27 years, in the facts and circumstances of this case, would not be justified. 3. On a consideration of the totality of the facts and circumstances of this case, we are of the opinion that ends of justice would meet if we direct each of the appellants to pay Rs 1 lakh to the complainant/injured persons. We direct accordingly. 3. On a consideration of the totality of the facts and circumstances of this case, we are of the opinion that ends of justice would meet if we direct each of the appellants to pay Rs 1 lakh to the complainant/injured persons. We direct accordingly. Let the amount be deposited before the trial court within two weeks from today and after the amount is deposited, the trial court shall disburse the amount equally among the injured persons.” 24. In the present case also, looking to the year of trial and the age of the appellants, no useful purpose will be served to direct them to undergo the remaining period of sentence. Thus, in the ends of justice, the appellant-Dhanraj Singh is directed to deposit an amount Rs. 70,000/- and the appellant-Sahdeo Singh is directed to deposit Rs. 30,000/- before the trial court within forty five (45) days from the date of the present judgment. The said amount shall be paid by the concerned court below to the widow of the deceased Shyam Lal Singh as compensation on her due identification. However, if the appellants Dhanraj Singh and Sahdeo Singh fail to deposit the aforesaid compensation, they shall be liable to serve the sentence as awarded by the learned trail court. 25. So far the appellants namely, Badri Singh, Ashin Singh and Durga Singh are concerned, the execution of bond was stayed during the pendency of appeal thus, they are directed to furnish the bonds so ordered by the learned court below under the provisions of the Probation of Offenders Act. 26. On perusal of the report submitted by the Police Inspector, Gandey Circle, Giridih (annexed with the supplementary counter affidavit of the State dated 13.02.2019 filed in pursuance of the direction of this Court dated 24.01.2019), it appears that one of the appellants namely, Madhusudan Singh had already died before filing of the present appeal. Under the aforesaid circumstance, the order for execution of bond by the deceased appellant-Madhusudan Singh is waived. 27. Accordingly, the appeal is partly allowed on the point of sentence as discussed hereinabove. Let the Lower Court Record be remitted to the concerned court below forthwith along with a copy of this judgment.