JUDGMENT Rumi Kumari Phukan, J. 1. Both appeals have been preferred against the same judgment, hence, taken together and disposed by this common order and judgment. 2. The victim Rajat and Ranjan, both are brothers and the accused persons also belonged to the same village and were neighbours. On the fateful day, i.e., on 29.01.1998, while both brothers were working in their house, the bullock belonging to the accused Bubul sustained injury and at this, at about 12'O clock, the accused Bubul dragged the victim Rajat and Ranjan from their house on suspicion that they have mutilated his bullock and they were tied nearby a Namghar and all of the accused persons assaulted both the victims, resulting severe injuries on their person. The mother of the victim who was in the house at that time, although resisted the accused persons from assaulting her sons, but the accused persons did not pay heed to the same. They kept on assaulting both the victims with the allegation that they have caused hurt to the bullock of Bubul. As the father of the victims went out for his daily hazira work, mother of the victim went to inform him and on return, it was found that Rajat was lying with severe injuries on his person. Police arrived and took Rajat to the hospital, but on the very day at night, he expired. The mother of the victim filed the FIR and a case was registered and investigated into and finally submitted charge sheet against all the accused persons under Sections 147/448/323/324/302, IPC. 3. All the accused persons faced the trial and denied the charge framed under Sections 323/34, 302/34, IPC and claimed to be tried. To bring home the charge, prosecution examined 9 (nine) witnesses and defence examined none. Plea of defence is of total denial. Statement of accused persons recorded and defence examined none. At the conclusion of the trial, accused persons were held guilty and convicted under Section 304(II), IPC and sentenced each of the accused persons to RI for 3 years and also to pay a fine of Rs. 1,000/- each, in default, SI for one month. Further, each of the accused persons were sentenced to RI for 2 months and to pay a fine of Rs. 1,000/-, in default, SI for 15 days under Section 324, IPC. They are also sentenced to pay a fine of Rs. 1,000/- each, in default, SI for one month. Further, each of the accused persons were sentenced to RI for 2 months and to pay a fine of Rs. 1,000/-, in default, SI for 15 days under Section 324, IPC. They are also sentenced to pay a fine of Rs. 1,000/-, in default, SI for 15 days, under Section 323, IPC, with a direction that such sentences will run concurrently. 4. Present appeals have been preferred against the impugned judgment and order. 5. I have heard the submissions of learned counsel for the appellant. 6. The contentions raised by the learned counsel for the appellants being similar, have been taken into consideration by this Court. The prime challenge to the prosecution case of the appellants is that no independent witness is examined by prosecution despite there was huge gathering of people at the relevant time; that the inconsistency of the evidence of PW-2 and PW-3 is overlooked by the trial Court, the medical evidence does not support the injury sustained by the victim, that the IO has contradicted the testimony of witnesses as regards the place of occurrence. 7. It may be mentioned here that although plea of juvenility was not raised before the trial Court, but the same has been raised before this appellate Court as regards the appellant Dharmeswar Phukan alias Dharmendra alias Dhrubajyoti. In terms of Section 7-A of the Juvenile Justice Act, such a plea can be adjudicated by the appellate Court also and accordingly, matter was forwarded to the learned trial Court to conduct an enquiry as regards the age of the said accused person. After conducting an enquiry, the learned Sessions Judge on the basis of the school certificate, HSLC pass certificate, admit card produced and verified from the Secretary of the Board of Secondary Education has given a finding that as per the above documents, the date of birth of the accused Dharmeswar was 31.12.1981 and the date of commission of the offence, i.e., on 29.01.1998, the accused was 16 years 29 days and he was juvenile at the time of occurrence. This aspect will be discussed later on. 8. Now, let us discuss the evidence on record. Obviously, in the present case no any independent witness has been examined by the prosecution, save and except the victim and his parents as well as the Medical Officer and Investigating Officer. 9. This aspect will be discussed later on. 8. Now, let us discuss the evidence on record. Obviously, in the present case no any independent witness has been examined by the prosecution, save and except the victim and his parents as well as the Medical Officer and Investigating Officer. 9. Mother of the victim, who is also the informant in this case, has stated as PW-1 that, somehow the bullock of the accused Bubul sustained injuries and he came to their house and dragged her sons Rajat and Ranjan from their house and assaulted them by means of firewood, asking as to why they have mutilated his bullock. Although her both sons stated that they have not done anything, but the accused Bubul continued the assault. As her husband was not in the house and went to his day-labour, so she went immediately to inform her husband and on their return, all the accused persons did not allow her husband to go to her sons. On being informed, Police arrived and took severely injured Rajat to hospital and in the night, Rajat died in the hospital. In her cross-examination, she has stated that incident took place near the Namghar and there was gathering of people and the incident took place due to the injury to the bullock. 10. PW-2 is the injured Ranjan Borgohain, who has stated that on the day of occurrence, accused persons came to their house and dragged him and his brother Rajat from their house to a place nearby the house of Jatin Phukan and asked him as to who had cut the bullock of accused Bubul. On being denied, PW-2 was assaulted and tied nearby the house of Jatin and all other accused persons with weapons in their hands like lathi etc. took Rajat nearby the Namghar and all of them assaulted Rajat One person namely, Jatin assaulted Rajat with a rod in his head and accused Hari assaulted Rajat at his chest with the reverse side of axe and other accused persons assaulted with piece of bamboo, lathi etc. Sustaining injury, Rajat fell down on the ground, then Hari again dealt a blow upon his head with a piece of bamboo. He saw all the incident from the place where he was tied. In the meantime, his father arrived and requested not to assault his sons, but he was also assaulted by the accused. Sustaining injury, Rajat fell down on the ground, then Hari again dealt a blow upon his head with a piece of bamboo. He saw all the incident from the place where he was tied. In the meantime, his father arrived and requested not to assault his sons, but he was also assaulted by the accused. In his cross-examination, he has stated that he has also stated before the IO, all details as to how Rajat was assaulted by the accused persons. 11. Thus, both these witnesses have stated that the incident of assaulting Rajat took place nearby the Namghar and PW-2 was tied near the house of Jatin. The father of the injured PW-2, namely, Khagen Borgohain has also stated that on the fateful day, he was not in the house and on being informed by his wife, he returned to the place of occurrence and saw his son Rajat in an injured condition and on being asked, the accused persons replied that his son Rajat has injured one bullock belonging to Bubul. He was obstructed by the accused persons to go nearby his son. Although PW-3 said that he was ready to pay the compensation for the damage, if any, but without paying heed to his submission, Rajat was assaulted by the accused persons in front of him by lathi and rods, as a result of which, Rajat fell down on the ground. His son Rajat although was taken to hospital but died. In cross-examination, he stated that the incident took place in front of village Namghar and there was gathering of people at the time of occurrence. He was informed by his wife about the incident and men, he returned in a bicycle. 12. All three witnesses in their evidence, have specifically stated that the incident took place in front of the village Namghar and the major assault to the injured Rajat (since deceased) was made nearby the Namghar, while the other injured Ranjan was kept tied nearby the house of Jatin. That being so, the version of the defence that there is discrepancy about the place of occurrence is not acceptable. A contradiction sought to be proved on the basis of evidence of IO/PW-6 who stated that place of occurrence was in the house of complainant, but same is found to be stated mistakenly. The conduct of the IO will be discussed separately. 13. A contradiction sought to be proved on the basis of evidence of IO/PW-6 who stated that place of occurrence was in the house of complainant, but same is found to be stated mistakenly. The conduct of the IO will be discussed separately. 13. All other witnesses are official witnesses. PW-4, Dipul Saikia is a signatory to the Inquest Report to the dead body of Rajat Borgohain. PW-5, Dr. D.K. Baruah, PW-7, Dr. R.K. Baruah are the Medical Officers and PW-6, Krishna Baruah and PW-8, N.K. Neog and PW-9 Suren Kalita are the Investigating Officers of the case. 14. PW-5 examined PW-3 Khagen Borgohain and Ranjan Borgohain and gave the medical report accordingly. Following injury was found on Khagen Borgohain;- (1) Swelling on the left arm. (2) Swelling on the left leg above the knee with tenderness. Both injuries are simple in nature, caused by blunt weapon. 14.1. On the person of Ranjan Borgohain, the following injuries were found:- (1) Bleeding from the left upper incisor teeth. (2) One cut injury on the left lower lip measuring 1 cm x cm. (3) One cut injury on the right upper lip measuring 1 cm x cm. (4) Bleeding from the nose. (5) One cut injury on the left leg above left ankle joint. (6) One cut injury on the right leg above right ankle joint. (7) Abrasion on the right and left side of waist. (8) Abrasion on the left forearm and right forearm with swelling Injuries are multiple in nature and nature of injury is simple. Injury Nos. 2, 3, 5 and 6 are caused by sharp cutting weapon, whereas, other injuries are caused by blunt weapon. 15. PW-7 conducted the PM examination upon the deceased Rajat Borgohain and found the following injuries:- A body of a medium stature moderately dark boy. Rigor Mortis present. INJURIES: (a) Abrasion of lower lip. (b) Abrasion on anterior aspects of legs near feet (about 1" long) (c) Echymes left parietal region of scalp (mid portion) absent. Size- 1" x 1". CRANIUM and SPINAL CORD (a) Echymes left parietal region of scalp (mid portion) absent. Size-1" x 1". (b) Left parietal bone 1" long (mid portion). MEMBRANE Lacerated corresponding to external injury on scalp. BRAIN and SPINAL CORD Clot ++ in left parietal lobe of brain 3" x 3" area. In the opinion of doctor, all the injuries are ante-mortem in nature. Size-1" x 1". (b) Left parietal bone 1" long (mid portion). MEMBRANE Lacerated corresponding to external injury on scalp. BRAIN and SPINAL CORD Clot ++ in left parietal lobe of brain 3" x 3" area. In the opinion of doctor, all the injuries are ante-mortem in nature. The cause of death was intra cranial haemorrhage with complication of head injury following external injuries. The doctor was not cross-examined by the defence. 16. The Investigating Officers, PW-6, PW-8 and PW-9 have stated about the receipt of the FIR and also the investigation carried out and also about filing of charge sheet against the accused persons. PW-6 has stated in the cross-examination that the informant, in her statement has not stated that her sons were forcibly taken away by the accused persons, that Ranjan Borgohain also did not state in detail that the accused Bubul came to their house and asked about the injury sustained by his bullock and all other details that have been stated during the course of trial. Similarly, Khagen Borgohain also did not state before him that accused persons assaulted Rajat with lathi and rod, that he saw the occurrence himself and all details that have been stated in the course of trial before the Court. Further, he stated that he reached the place of occurrence, i.e., the house of the complainant at 06:30 pm and the house of Jatin Phukan is situated in front of the house of complainant. 17. The learned counsel, Mr. K.K. Bhattacharjee, has urged before this Court that there being no any independent witness to the occurrence and the witnesses examined being relatives were interested witnesses, which is also inconsistent, is liable to be discarded. It is submitted that evidence is to be evaluated on the touchstone of consistency and in view of their criminal antecedent, their evidence is not reliable. For the defective investigation, benefit of doubt should be bestowed upon the accused. In support of the contention, following decisions have been relied: 1) (1972) 3 SCC 354 : (1972 CRI.L.J. 1172), Pabitar Singh v. State of Bihar, 2) (1974) 4 SCC 494 : ( AIR 1974 SC 1871 ), State of Haryana v. Gurdial Singh and another 3) (1974) 4 SCC 300 : ( AIR 1974 SC 1936 ), Hallu and others v. State of Madhya Pradesh. 4) (1976) 1 SCC 172 : ( AIR 1976 SC 76 ), Kartarey and others v. State of U.P., 5) (1976) 4 SCC 355 : (1976 CRI. L.J. 1883), Ishwar Singh v. State of UP, 6) (1984) 4 SCC 116 : ( AIR 1984 SC 1622 ), Sharad Birchand Sarda v. State of Maharashtra 7) (1995) 5 SCC (Cri.) 156 : (AIR Online 1994 SC 619), State of Punjab v. Gurmej Singh, 8) (2010) 5 SCC 645 : ( AIR 2010 SC 2768 ), C. Magech and others v. State of Karnataka, 9) (2019) 2 SCC 303 : (AIR Online 2018 SC 845 : AIR 2019 SC 38 ), State of U.P. Wasif Hyder and others. The plea of juvenility in respect of appellant, Dharmendra Phukan has been taken only before this Court at the time of appeal and it has been submitted that the claim of juvenility may be raised at any stage under the Juvenile Justice (Care and Protection of Children) Act, 2000, read with Section 25 of the Repealing Act, 2015. The delay in raising the claim of juvenility cannot be a ground for rejection of such claim and the same can be raised even after conviction. In support of the contention, following decisions have been relied:- (1) (2009) 13 SCC 211 : (AIR 2011 SC (Cri) 2053), Hari Ram v. State of Rajasthan and another, (2) (2012) 10 SCC 489 : ( AIR 2013 SC 1020 ), Abuzar Hossain v. State of West Bengal, (3) (2012) 8 SCC 34 : ( AIR 2012 SC 3212 ), Kalu alias Amit v. State of Haryana, (4) (2016) 16 SCC 312 : (AIR 2015 SC 6747), Mahendra Singh v. State of Rajasthan. 18. The learned counsel, Mr. R. Sekhar, also adopted the argument of learned counsel Mr. Bhattacharjee and has further stated that PW-2 has stated about one person Jatin, who has dealt a vital blow upon the deceased, but the said person has not been arrayed, as an accused in the present case nor the PW-1 has stated about the presence of said person Jatin, so the entire case is doubtful. Accordingly, it contends that in view of the discrepancy in the testimonies of PW-1 and PW-2, and non-examination of independent witness, raise doubt about the authenticity of the prosecution case. 19. Learned Additional Public Prosecutor, Mr. Accordingly, it contends that in view of the discrepancy in the testimonies of PW-1 and PW-2, and non-examination of independent witness, raise doubt about the authenticity of the prosecution case. 19. Learned Additional Public Prosecutor, Mr. D. Das has vehemently opposed the contention of the appellant side and submitted that, non-examination of independent witness cannot be a ground of rejection of entire prosecution case, whereas, witnesses to the occurrence are parents of the victim and they had no occasion for false implication of accused persons. In view of poor status and illiterate background, minor discrepancies in the evidence of such witnesses is not accountable, as their evidence is otherwise inspiring. 20. Due consideration is given to the argument advanced before this Court and gone through the decisions relied. 21. So far as regards non-examination of the independent witness, it is to be noted that the IO has not examined any such witness despite the fact that there was huge gathering of people and no other witnesses were enlisted in the charge sheet, whereas, it was bounden duty on the part of the IO to examine the neighbouring witnesses gathered at the place of occurrence. Incident took place in the daytime at 12'o clock and the IO was also informed immediately after the occurrence but he arrived in the evening, which showed the laxity of the police officials towards conducting the investigation. The IO has also casually mentioned that the place of occurrence is in the house of complainant, whereas, the witnesses nowhere stated before him in the like manner. Further, the recording of evidence of the witness by the IO is so casual, who has not bothered to record all details of the statement of witnesses, rather it is a statement of few lines in a very concise manner in an offence under Section 302, IPC. It is to be noted that the witnesses have narrated the incident in detailed manner before the Court and their evidence on material aspect could not be scattered, that the accused persons were not involved in the occurrence, that no such injury was sustained by the injured persons (including the deceased). It is to be noted that the witnesses have narrated the incident in detailed manner before the Court and their evidence on material aspect could not be scattered, that the accused persons were not involved in the occurrence, that no such injury was sustained by the injured persons (including the deceased). So, the fact remains that the injured sustained injury on the fateful day and the accused appellants nowhere denied their presence at the place of occurrence and no any specific plea of denial of their involvement is reflected from the entire cross-examination or in their statements recorded under Section 313 Cr.P.C. That being the position, the plea of defence about some minor inconsistencies in the evidence of PW-2 and PW-3 is not enough to discard the testimonies of the injured persons, including the informant. We have found the informant and her husband are illiterate, rustic persons giving thumb-impressions everywhere, so, discrepancy in their evidence, which is not at all vital, cannot be a ground for discard their case. Suggestion has been given about the theft cases filed against the son of the informant to show their antecedent, also cannot be a ground to disbelieve their case. The defence, otherwise could not bring anything on record to assume any false implication on the part of the witnesses against the appellants, there being no any earlier animosity between the parties. 22. On scrutiny of the evidence on record, as we found that PW-1 is the mother of the victim, aged about 60 years and the accused persons dragged her both sons in front of her eyes and accused Babul began to assault her sons despite her resistance and being helpless, she ran to inform her husband, who was working in a distant place. Naturally, it can be inferred that she was not waiting to witness the entire incident of assault and she left both her sons and it was only the PW-2, who survived to give his statement and other son, died after the assault. It was the PW-2, in front of whom, the entire incident took place and he has given a description as to how all the accused persons conjointly attacked and assaulted his brother Rajat (since deceased). His testimony was briefly recorded by the IO without any description for which his entire evidence cannot be discarded. It was the PW-2, in front of whom, the entire incident took place and he has given a description as to how all the accused persons conjointly attacked and assaulted his brother Rajat (since deceased). His testimony was briefly recorded by the IO without any description for which his entire evidence cannot be discarded. PW-3 also arrived immediately at the place of occurrence and witnessed the assault made to Rajat and it is his specific evidence that due to such assault made by all accused persons Rajat sustained injuries on his person and he was debarred to attend his son. Fact remains that both these PW-2 and PW-3 are eye-witnesses to the entire incident and PW-1 witnessed part of the occurrence. All of them have stated that occurrence took place in front of the Namghar, which is nearby the house of Jatin. There appears no any discrepancy as regards the place of occurrence or about the assault made by all the accused persons. No any material contradiction has been proved through the IO. On verification of the statement recorded under Section 161, Cr.P.C., it reveals that the aforesaid witnesses have specifically stated that all the accused persons assaulted PW-2 and PW-3 by blows and kicks and also by rod etc. 23. The medical evidence has also supported the injuries sustained by the injured and the deceased, which has also corroborated the testimonies of the injured persons. From the totality of the evidence of PW-1, PW-2 and PW-3, I found no any reason to disbelieve their evidence, there being no any hostile relation between the parties. It is to be noted that it is a badly conducted case by the IO without application of proper mind and he did not bother to examine the local witnesses present at the place of occurrence and he even recorded the statements of the witnesses in a cryptic manner. It is trite law that a case otherwise proved by the witnesses cannot be defeated only because of the defective investigation. 24. From the findings above, this Court is not agreeable to the submission of the appellants. A young boy succumbed to his injuries for the conjoint assault made by the accused appellants. It is trite law that a case otherwise proved by the witnesses cannot be defeated only because of the defective investigation. 24. From the findings above, this Court is not agreeable to the submission of the appellants. A young boy succumbed to his injuries for the conjoint assault made by the accused appellants. Of course, they may not have the intention to kill the deceased but they have the knowledge that such repeated assaults to a single person by a group of person may ensure death also. To make an offence punishable under Section 304(II) IPC, the prosecution has to prove death of a person in question and that, such death was caused by the act of the accused and that he knows that such act is likely to cause death of that person. The learned trial Court has duly appreciated each aspect of the case in proper perspective. 25. Resultantly, it can held that the learned trial Court has rightly convicted the accused persons and there remains no any scope for interference as regards the conviction. 26. The accused, Dharmendra Phukan, has now been found juvenile at the time of occurrence, as per the report given by the learned Sessions Judge and, hence, sentence can only be awarded by the concerned JJB. Accordingly, maintaining the conviction, sentence of the accused Dharmendra is hereby set aside and matter is remanded to the Juvenile Justice Board, Jorhat, to award the sentence as per law. 27. Considering the relevant aspect that the occurrence is of 1998 and 22 years have elapsed by this time and the accused who were young at the time of occurrence have turned old by this time and the incident originated from mutilation of a bullock, and no serious injury on the person of deceased by sharp weapon etc. while maintaining the conviction of all the remaining accused persons, the sentence is reduced to the period already undergone by them and the fine imposed will remain the same. 28. Appeal is partly allowed. Return the LCR.