JUDGMENT : Ananda Sen, J. This criminal appeal is directed against the Judgment of conviction dated 26.04.2016 and order of sentence dated 27.04.2016 passed by the learned Addl. Sessions Judge-III, Palamau at Daltonganj in Sessions Trial No. 204 of 2015, whereby and whereunder, the appellant having been found guilty of charge under Sections 324 and 302 of Indian Penal Code and has been convicted and sentenced to undergo imprisonment for life and fine of Rs.500/-for the offence under Section 302 IPC and other sentence for the other offence. 2. The learned counsel for the appellant submitted that beyond the weight of the evidence, the Trial Court has convicted the appellant. He further submitted that there is no direct evidence against the appellant, thus the involvement of the appellant is easily doubted. He also submitted that the witnesses are hearsay and the prosecution has failed to prove the guilt of this appellant beyond all reasonable doubt. He also argued that the deposition of the witnesses have not been weighted properly and one will feel that same is full of contradictions. He also argued that non-recovery of weapon, which was used in murder of the deceased is fatal for the prosecution. It is also surprising, as per the witnesses, the appellant was assaulting the deceased and those witnesses were present there, but none came forward to save the deceased, which suggests that none of the witnesses were present at the place of occurrence. The defence had further taken a plea that there was delay in lodging the FIR, which is unexplained and is also fatal for the prosecution. He lastly submitted that in absence of independent witnesses, the appellant cannot be convicted. 3. Counsel for the State submitted that the prosecution has proved the guilt of the appellant beyond all reasonable doubt. He submitted that the prosecution story is corroborated by the witnesses and also by the medical evidence. He further submitted that the weapon was a sharp cutting weapon, which was used for committing the murder of the deceased. He also argued that considering the nature of evidence, which is direct and as the defence could not shake those evidences, the appellant has been correctly convicted. 4. The prosecution case is based on the fardbeyan of the wife of the deceased. He also argued that considering the nature of evidence, which is direct and as the defence could not shake those evidences, the appellant has been correctly convicted. 4. The prosecution case is based on the fardbeyan of the wife of the deceased. She stated that on 28.2.2015 at about 8 O'clock at night, Shyamdeo Singh was sitting in his house near the door when this appellant came with axe in his hand and inflicted the blow on the head of the deceased. Her husband Shyamdeo Singh instantly fell down then the informant started raising alarm along with her son Om Prakash Kumar Singh. The villagers rushed to the place of occurrence and took the deceased to Hariharganj Hospital for his treatment from where after medical aid he was referred for proper treatment to higher institution. The deceased was taken to Dehri but seeing the condition, he was referred to Varanashi for treatment on 1.2.2015, but in course of treatment on 3.3.2015, he died. The police was informed. The postmortem of the deceased was conducted and the dead body was sent on 5.3.2015 to the village-Damwa. Thereafter the informant lodged this case at Hariharganj Police Station. The reason of the occurrence was that this appellant was abusing her husband in filthy languages, which the deceased objected, but the appellant inflicted axe blow on the head of the deceased, resulting in his death. 5. On the basis of the aforesaid fardbeyan, the FIR was registered under Sections 341, 324 and 302 of the Indian Penal Code. After investigation, the police submitted chargesheet against this appellant and accordingly, cognizance of the offence was taken and the case was committed to the Court of Sessions for trial. As the appellant pleaded not guilty, charges were framed against him for the aforesaid section. 6. In order to prove the charges against the accused, the prosecution had examined altogether twelve witnesses, who are as follows:- P.W.1 Lalita Devi (the informant of this case) P.W.2 Om Prakash Manjhi (son of the deceased) P.W.3 Shiv Narayan Singh, P.W.4 Awadhesh Roy P.W.5 Preman Singh @ Reman Singh P.W.6 Bujhawal Singh P.W.7 Nagdeo Singh P.W.8 Ramswaroop Singh P.W.9 Alok Paswan P.W.10 Kesaw Kumar Singh P.W.11 Dr. Santosh Kumar Gupta P.W.12 Ashish Khakha (the I.O. of this case). 7. Santosh Kumar Gupta P.W.12 Ashish Khakha (the I.O. of this case). 7. Some documents were also exhibited, which are as follows:- Ext.-1 Signature of the Officer-in-Charge on the endorsement made by him on the written report. Ext.-2 Postmortem report. 8. After completion of prosecution evidence, the statement of the appellant was recorded under Section 313 Cr.P.C. 9. The Trial Court thereafter considering the evidences had convicted the appellant for committing the offence under Sections 302 and 324 of the Indian Penal Code. 10. From the FIR, we find that the deceased as sitting in his house near the door when this appellant came and assaulted him with an axe. The informant was in the house. The occurrence took place at night 8 O'clock in the village. The informant is P.W.1, who stated that she was in her house near the door along with her husband when this appellant came with axe and started abusing in filthy language to her husband in her presence and gave tangi blow on the head of her husband on the left side. The villagers took the injured to Hariharganj Govt. Hospital. The doctor administered oxygen to the injured and he was referred to Dehri. In Dehri, the injured was taken to private hospital of Sunil Bose. As the condition of the injured did not improve, he was sent to Vanaras, where during treatment, he died. From the hospital, the police was informed and the dead body was brought back to the village where last rite was performed. 11. During investigation, the police recorded the statement of the informant in which she narrated the entire facts. She denied that there was some dispute between the appellant and the deceased. She stated that this appellant had gave two blows on the head of the deceased, but has not assaulted this witness. She raised alarm when Shiv Narayan Singh, Om Prakash Singh and others came. The injured was carried in a cot by Om Prakash, Nagdeo, Surendra Singh, and Sumant Singh. She explained that she went to police station at night 10 O'clock when the police official advised her first to save the life of the injured and then she gave the written report. The police official did not record the statement. She further stated that the murder weapon was not recovered and the appellant fled away after assaulting the deceased. She explained that she went to police station at night 10 O'clock when the police official advised her first to save the life of the injured and then she gave the written report. The police official did not record the statement. She further stated that the murder weapon was not recovered and the appellant fled away after assaulting the deceased. 8 days after the death of the deceased, she got her statement recorded. She was mentally disturbed. She denied the suggestion that her husband was not properly treated. 12. From the trend of cross-examination, we find that there is nothing to disbelieve this witness. She was present at the time of occurrence along with her husband when this appellant came and gave two axe blow strike wise on the head of the deceased. Since it was 8 O'clock at night, it was not possible that the witnesses of nearby would have seen the occurrence. 13. P.W.2 (Om Prakash Manjhi) is the son of the deceased, who also stated that his father was sitting on the door on 28.2.2015 at about 8 O'clock at night. His mother was also present there. On hearing commotion, he came out from the house and saw this appellant giving blow on the head of the deceased. His father fell down immediately unconscious. He also stated that he was taken on a cot to Pipra Police Camp and then to Hariharganj Government Hospital. The doctor thereafter referred the injured to Doctor Sunil Bose at Dehri who treated him. Thereafter, the injured was sent to Varanashi immediately where he died in BHU on 3rd March 2015. The postmortem was conducted there and dead body was brought back to the village. In cross-examination, he admitted that it was dark night. He stated that his father, mother and his uncle Nagdeo Singh were there in front of the door. Nagdeo Singh resides separately. He stated that the incidence took place in two stages. The first occurrence happened only by abusing but with the help of villagers, they were separated. He further stated that within 2-3 seconds of the incident, he reached the place of occurrence. He stated that he has seen Ashok Singh leaving from the place of occurrence and he was at a distance of 1-2 feet. He did not try to catch the appellant. He further stated that within 2-3 seconds of the incident, he reached the place of occurrence. He stated that he has seen Ashok Singh leaving from the place of occurrence and he was at a distance of 1-2 feet. He did not try to catch the appellant. He does not know why the assault was made, but stated that there was some talk going on in respect of watering the wheat field. He also stated that he did not say before the police that he was inside the house. He also stated that he went to the police station and thereafter to the hospital. He also went to give written information, but the police did not lodge the same. He gives details about the boundary of the place of occurrence. He admitted that from the place of occurrence, the axe was not recovered. P.W-3 Shiv Narayan Singh stated that on hearing hue and cry, he went to the place of occurrence and saw the deceased in injured condition who got the injury on the head. He saw Ashok Singh with tangi in his hand. He also stated that he was taken the injured to Hariharganj police station then to the hospital. The police did not lodge the FIR saying that first they should save the life of the injured. He took the deceased to Hariharganj Hospital and thereafter to Dehri and from there, the deceased was referred to Varanashi, where during treatment, he died. He identified the appellant in dock. He also stated that his statement was recorded. He stated that he has not narrated before the police that on 28.2.2015 at 8 O' clock, on hearing hue and cry, he went the place of occurrence and saw that the deceased and this appellant was abusing each other. He resolved the matter and came back to his house. He never stated before the police that the occurrence took place in respect of watering the wheat field. He stated that he reached the place of occurrence after hearing the voice of Om Prakash and wife of the deceased. He reached within a gap of 3-4 minutes. His house is situated very close to the house of the deceased. P.W. 4 is Awadhesh Roy, who stated that both Ashok Singh and the deceased were fighting when they separated the appellant and the deceased and sent them to their houses. He reached within a gap of 3-4 minutes. His house is situated very close to the house of the deceased. P.W. 4 is Awadhesh Roy, who stated that both Ashok Singh and the deceased were fighting when they separated the appellant and the deceased and sent them to their houses. Thereafter Ashok Singh brought tangi and assaulted the deceased on his head. He stated that the incident had occurred in front of door of the deceased. Narayan Singh and other took the deceased to Hariharganj and then Varanashi where during the treatment, the injured died. The police recorded his statement after 5-6 days of the occurrence. He stated that he had intervened the fighting between the appellant and the deceased in the first occasion. On the second occasion, when there was quarrel, he was also there. He stated that none of the villagers had any dispute with the appellant. P.W. 5 Preman Singh @ Reman Singh, who stated that there was quarrel between Ashok Singh and Shyamdeo Singh. Thereafter Ashok Singh went to his house and brought a tangi and assaulted the deceased on his head. It was 6-7 O'clock in the evening. He stated that he himself had seen Ashok Singh assaulting the deceased. The deceased was taken to hospital for treatment, where he died. He admitted that his statement was not recorded by the police and for the first time, he is giving the statement before the Court. P.W.6 – Bujhawal Singh also stated that he had seen the appellant assaulting the deceased on his head with axe. He is none, but the brother of the deceased. He stated that when the quarrel was going on, he was in the house and the villagers separated them. Ashok Singh went to his house and brought an axe and thereafter assaulted the deceased on his head. He further stated that he had seen the appellant from a distance of ten feet assaulting the deceased on the head by tangi. He also stated that at the time of occurrence, Ashok Singh was in green shirt. Ashok Singh only assaulted the deceased and non else. He did not accompany the injured to the hospital. He stated that the police had recorded his statement, but he could not say as to how many days after the same was recorded. The other witnesses have also stated in the same line. P.W. 11-Dr. Ashok Singh only assaulted the deceased and non else. He did not accompany the injured to the hospital. He stated that the police had recorded his statement, but he could not say as to how many days after the same was recorded. The other witnesses have also stated in the same line. P.W. 11-Dr. Santosh Kumar Gupta stated that on 28.2.2015 the injured was referred to Sadar Hospital and on 1.3.2015, he was further referred to to Sunil Bose's Clinic at Dehri and from there, the injured was sent to BHU, where he died on 3.3.2015. He conducted the postmortem of the deceased on 4.3.2015 but due to slip of pen, 4.3.2015 was written as 4.2.2015. He found the following injury on the person of the deceased: Ante mortem Injury:- Incised chopped wound on left side of forehead and parietal area. Size-12 cm x 2 cm x brain deep. Injury caused upon from 3 cm above of left eye brow goes 5 cm outer to mid line of head. 9 cm above left ear. Postmortem. (i) There was fracture of frontal parietal and temporal bone of left side. (ii) Meninges incised chopped Brain incised chopped sub-dural and extra dural haematoma present. (iii) Teeth 15/13. Cause of death:-Coma as a result of head injury. The injury found over body of the deceased as antimortem is sufficient to cause death of a person in normal course. P.W.12-Ashish Khakha is the police official who further investigated Hariharganj P.S. Case No. 12 of 2015. He obtained the postmortem report and submitted chargesheet under Section 302 IPC against this appellant. P.W. 10 was the Investigating Officer of Hariharganj P.S. Case No. 12/2015. He stated that he received the written report of the informant, based on which, the police case was registered. The same was exhibited as Ext.1. He himself took over the responsibility of investigation and recorded the statement of informant and others. He visited the place of occurrence. He gave description about the place of occurrence and the boundary of the place of occurrence. He also stated that he could not say who is the scribe of the fardbeyan, but stated that in front of him, the informant gave the thumb impression. He also recorded the re-statement of the informant and other witnesses. He admitted that he could not recover the murder weapon. He also stated that he could not say who is the scribe of the fardbeyan, but stated that in front of him, the informant gave the thumb impression. He also recorded the re-statement of the informant and other witnesses. He admitted that he could not recover the murder weapon. He also stated that the dispute was in respect of watering of the wheat field. 14. From the aforesaid evidence, I find that P.W. 1, who is informant, P.W. 4 and P.W. 5 are the eye witnesses to the occurrence. P.W. 2 had also seen the occurrence. Though there is very minor contradiction in his statement, as he stated that he was in the house and when he came out, he saw this appellant fleeing from the place of occurrence. From the evidence of P.W. 2, it has been proved that he was in the house and saw this appellant fleeing from the place of occurrence. The witnesses have stated that this appellant had given tangi blow on the head of the deceased. The doctor also found head injury, which was of sharp cutting weapon. 15. Be it noted that the witnesses have stated that the assault was by axe. P.W. 1, who was present at the place of occurrence stated that the assault was on the left side which corroborates with the medical evidence. From the evidence of rest of the witnesses, we find that initially there was altercation between the deceased and the appellant and they were separated by those witnesses and thereafter this appellant went to his house, brought an axe and struck on the head of the deceased. The statement of the witnesses is consistent. Thus, we find that the prosecution has been able to prove the guilt of the appellant beyond all reasonable doubt, as held by the Trial Court. 16. There is delay in lodging the FIR. The incident had taken place on 28.2.2015 whereas the FIR was registered on 5.3.2015 i.e. five days delay in lodging the FIR. The delay of five days lodging in FIR has been well explained by the informant and other witnesses. P.W. 1 deposed that she along with other went to the police station with the injured but the police advised them to first save the life of the injured then report the matter. The delay of five days lodging in FIR has been well explained by the informant and other witnesses. P.W. 1 deposed that she along with other went to the police station with the injured but the police advised them to first save the life of the injured then report the matter. It has also came in evidence that from the Health Centre, the injured was referred to Hariharganj Medical Centre, thereafter to Dehri and from there, the injured was referred to Varanashi, where during treatment, he died on 3rd March 2015. The body was brought back on 4th, the postmortem of the deceased was conducted and the formal FIR was registered. Thus we are of the opinion that the delay has been properly explained and the said delay is justified. Further the defence has not brought any material to suggest that as to what is the prejudice caused to him, in fact there is a consistent evidence that it is this appellant who had committed the murder of the deceased with axe and there being no other contradictory material. Thus we are of opinion that the delay in lodging the FIR is not fatal for the prosecution. 17. The appellant, in his statement recorded under Section 313 Cr.P.C., where all the circumstances were put forth before him, but he had given evasive reply stating that he is unaware of the facts. He denied that there was any dispute between him and the deceased and also denied that he had assaulted the deceased. No explanation was put forth by him. 18. Non-recovery of the murder weapon is of no relevance in this case, as the eye witnesses have categorically stated that the deceased was assaulted by axe on his head. Thereafter he fled away. The doctor also found sharp cut injury on the head of the deceased. In this case, no one has created any doubt about the use of an axe as a murder weapon. Thus non-recovery of the axe i.e. the murder weapon is immaterial. 19. This is not a case where the assault has taken place in the heat of passion and on the spur of moment. In this case, no one has created any doubt about the use of an axe as a murder weapon. Thus non-recovery of the axe i.e. the murder weapon is immaterial. 19. This is not a case where the assault has taken place in the heat of passion and on the spur of moment. From the evidences, I arrive at a definite conclusion that there are two limbs of this occurrence: (1) there was an altercation in which both of them were abusing to each other and they were separated by the villagers including the eye witnesses, and (2) thereafter this appellant went to his house and brought an axe and assaulted the deceased on his head. For the first time when the assault had taken place, we could have somehow accepted that in spur of moment, the incident had taken place, but thereafter, the appellant went to his house and brought an axe and thereafter assaulted the deceased, which suggests that he had motive to commit the murder of the deceased. The blow was also given on the head of the deceased by axe i.e. too by a sharp cutting weapon, which also fortifies the findings of this Court that the appellant had intention to commit the murder of the deceased. 20. Thus, from the evidence, led by the parties, I find that the prosecution has been able to prove the guilt of the appellant beyond all reasonable doubt. We find no merit in this appeal. The appellant has rightly been convicted and sentenced by passing the Judgment of conviction dated 26.04.2016 and order of sentence dated 27.04.2016 passed by the learned Addl. Sessions Judge-III, Palamau at Daltonganj in Sessions Trial No. 204 of 2015. Accordingly, this appeal is dismissed. 21. Let the Trial Court Records be sent back to the Court concerned forthwith, along with a copy of this judgment. 22. Pending interlocutory application, if any, is also disposed of.