JUDGMENT : SUDHIR SINGH, J. 1. This criminal appeal has been filed on behalf of the appellant against the judgment and order dated 30.6.1995 passed by learned Sessions Judge, Vaishali at Hajipur in Sessions Trial No. 229/1988 (G.R. Case No. 1159/1985) arising out of Hajipur Sadar P.S. Case No. 120/1985 whereby and whereunder the sole appellant has been convicted under Section 302 read with Section 34 of the Indian Penal Code and has been sentenced to undergo rigorous imprisonment for life. 2. It is the case of the prosecution that on 22.06.1985 at about 1 p.m. the deceased Dinesh Kumar Singh went to the house of the informant and asked him to accompany for plucking mangoes in village Izra. The informant along with deceased Dinesh Kumar Singh left for village Izra on bicycle and reached the house of Ram Ekbal Mahto (appellant). After leaving bicycle at the door, they went to nearby orchard. A labourer of the deceased namely Bindeshwar Paswan (PW-1) also reached there with bags and bamboos. The informant climbed on to the mango tree and started plucking mangoes. The deceased and PW-1 were collecting the mango on the ground. In the meantime, the appellant came there and asked the deceased as to why he was plucking the mangoes upon which an altercation took place in between them. In the meantime, Yadu Mahto (co-accused) arrived with lathi and assaulted the deceased due to which he fell down whereafter the appellant is said to have assaulted the deceased with hasua. The appellant chased the informant and caught hold of him, however, of his plea, he left him. Bindeshwar Paswan (PW-1) after seeing the deceased lying in injured condition fled away. On hulla, several persons assembled there. The deceased succumbed to the injuries at the spot. The motive behind the occurrence alleged in the F.I.R. is that the deceased and accused persons are patidars and there was dispute over partition of property between them. The fardbeyan of the informant was recorded at 4.30 on the same day at the place of occurrence on the basis of which Hajipur Sadar P.S. Case No. 120/1985 was registered against two accused persons. 3. After completion of investigation, the police submitted charge-sheet against both the accused persons. The case was committed to the Court of Sessions. During the course of trial, prosecution examined as many as eight (08) prosecution witnesses viz. 3. After completion of investigation, the police submitted charge-sheet against both the accused persons. The case was committed to the Court of Sessions. During the course of trial, prosecution examined as many as eight (08) prosecution witnesses viz. PW-1 Bindeshwar Paswan, PW-2 Sita Paswan (informant), PW-3 Ramjee Singh, PW-4 Mohan Singh, PW-5 Baleshwar Singh, PW-6 Arun Kumar Singh, PW-7 Dr. Bhola Prasad (doctor who conducted post mortem of the deceased) and PW-8 the investigating officer. PW-1, PW-2 and PW-3 have claimed to be eye witnesses. PW-4 and PW-5 were examined as being seizure witness. PW-6 was Judicial magistrate who recorded the statement under Section 164 Cr.P.C. The defence has not examined any witness in support of its case. 4. It is the case of the appellant before this Court that the prosecution has failed to prove the place of occurrence. It is also contended that the presence of the eye witnesses is also not proved beyond reasonable doubt for the reason that there is material inconsistencies in the testimony of all the eye-witnesses. It has also been argued that the ocular evidence of assault is not corroborated with the medical evidence i.e. the post-mortem report of the deceased. It is a case of false implication due to property dispute between the parties. 5. Learned counsel appearing for the State has submitted that the judgment of conviction passed by the Court below needs no interference. The prosecution has been able to prove the guilt of the appellant beyond reasonable doubt. 6. We have heard learned counsels for the parties and considered the materials available on record. Following issues arise for consideration in this case: (i) Whether the prosecution has been able to establish the place of occurrence beyond reasonable doubt? (ii) Whether there is material contradiction with regard to the presence of eye witnesses at the relevant time at the place of occurrence? (iii) Whether the ocular evidence is inconsistent with the medical evidence so far as manner of occurrence is concerned? 7. Now adverting to the first issue, from perusal of the order under challenge, we find that by order dated 22.07.1992, the Trial Court amended the place of occurrence in the charge to the effect that in place of village Gauspur Izra, village Mauzampur was added. 7. Now adverting to the first issue, from perusal of the order under challenge, we find that by order dated 22.07.1992, the Trial Court amended the place of occurrence in the charge to the effect that in place of village Gauspur Izra, village Mauzampur was added. In our opinion, alteration of charge can only be with respect to the offence and not with respect to any material fact such as time of occurrence, date of occurrence, place of occurrence etc. Therefore, the order dated 22.07.1992 is not tenable in the eyes of law. However, at this stage when this appeal has been pending for almost 27 years, we refrain from giving a finding on the merit of such order. As per the F.I.R. the deceased was asked by PW-2 (informant) to accompany him for plucking mangoes at village Izra. However, according to PW-1, the place of occurrence is village Mauzampur. PW-1 in his cross-examination has stated that village Mauzampur and village Izra are two different villages situated adjacent to each other. From perusal of the inquest report, it appears that the dead body was found at village Gauspur Izra which is also supported by the examination-in-chief of PW-8 (I.O.). Therefore, from a careful reading of the testimonies of the above referred witnesses including the I.O. it is clear that the prosecution has completely failed to establish the place of occurrence as there is inconsistency in the testimony of witnesses. The Hon’ble Supreme Court in Syed Ibrahim vs. State of Andhra Pradesh, (2008) 10 SCC 601 has held that when the place of occurrence itself has not been established, it would not be proper to accept the prosecution version. 8. While adverting to the second issue formulated as above, from perusal of the testimonies of PW-1 and PW-2, we find that in their statement, they speak about having seen the incident but do not state regarding the presence of PW-3 at the place of occurrence at the time when crime was being committed. From perusal of testimony of PW-3, we find that PW-3 has categorically stated that he has not seen PW-1 and PW-2 at the place of occurrence at the relevant time. From perusal of testimony of PW-3, we find that PW-3 has categorically stated that he has not seen PW-1 and PW-2 at the place of occurrence at the relevant time. Though, it has been stated by him that both PW-1 and PW-2 were known to him, therefore, it is clear that there is contradiction in the testimonies of all the eye witnesses with regard to their presence at the place of occurrence at the relevant time. Hence, the prosecution has failed to prove their presence at the place of occurrence at the relevant time beyond reasonable doubt. 9. Coming to the third issue, from perusal of the record, it transpires that the informant in the fardbeyan has not made any specific allegation regarding manner of assault and had only alleged that the appellant assaulted the deceased by hasua. However, during trial the prosecution witnesses consistently deposed that the appellant has given a hasua blow on the neck of the deceased after the deceased had fallen by his back on the ground. However, the post-mortem report shows that the deceased had sustained two injuries which are as follows: (i) Cut wound sharp in nature at the left side of occipital bone vertically situated. Direction of wound was towards right side 3½” x ¾” x 2” touching the occipital bone. (ii) There was softening of the left side of the skull at the region of temporal and parietal bone of skull 4” x 3” in size. On dissection, there was fracture of some part of left side of frontal bone, fracture of parietal bone and temporal bone. On removal of fracture bone, there was rupture of membrane and laceration of brain substance with accumulation of blood clots. 10. In the opinion of the doctor, injury No. 1 is caused by sharp instrument and hard and blunt substance was used in case of the injury No. 2. From perusal of the post-mortem report, it is evident that no injury has been sustained by the deceased on the front side of the neck rather the injury No. 1 which could be attributed to the appellant is on the occipital bone. The deceased had fallen down by his back with the face upward. Therefore, it was not possible for the appellant to give hasua blow on the back of the neck of the deceased. The deceased had fallen down by his back with the face upward. Therefore, it was not possible for the appellant to give hasua blow on the back of the neck of the deceased. None of the witnesses has stated that the deceased was hit on the back of his neck. The injury No. 1 as sustained by the deceased could not have been caused by the appellant in the manner as narrated by the prosecution, if the deceased had fallen down on his back with his face upward. Thus, the allegation of assault alleged against the appellant is inconsistent with the medical evidence available on record. At this point, we put reliance upon the case of Ram Narain Singh vs. State of Punjab and Ama Singh and Others vs. State of Punjab, (1975) 4 SCC 497 wherein the Hon’ble Supreme Court has held that inconsistency between the ocular and medical evidence is a most fundamental defect in the prosecution case and unless reasonably explained, it is sufficient to discredit the entire case. 11. Lastly, the possibility of false implication also cannot be ruled out as there is admitted property dispute between the parties. 12. In view of the above, we allow the present appeal filed by the appellant and set aside his conviction and acquit him from the charges levelled against him. The appellant is on bail. He is discharged from the liability of his bail bonds.